Generative AI is a branch of artificial intelligence that can create new content, such as images, music, text, or videos, based on data and inputs. Generative AI¹ has many applications and benefits for the creative industry, but it also poses some legal and ethical challenges, especially when it comes to personality rights. Personality rights, also known as celebrity rights or publicity rights, are the rights of an individual to control the commercial use of their name, likeness, voice, and other distinctive attributes that define their identity, talent, or fame. Personality rights are not explicitly recognized as a separate category of intellectual property in India, but they are protected under various laws, such as copyright, trademark, tort, and privacy.

Firstly, the main issues that arises with generative AI is the unauthorized use of personality rights to create or manipulate content that features famous or recognizable individuals. For example, generative AI can be used to create deepfakes, which are realistic but fake videos or images that show someone doing or saying something they never did or said. Deepfakes can be used for entertainment, satire, or parody, but they can also be used for malicious purposes, such as defamation, fraud, or manipulation.² Secondly, the issue is the ownership and attribution of content that is generated by AI using personality rights as inputs or sources. For example, generative AI can be used to create new songs, artworks, or stories that are inspired by or resemble the style of a famous artist or author. Who owns the rights to such content? Who should be credited for it? How can the original creators protect their reputation and brand from being diluted or misrepresented by AI-generated content?

The case of Anil Kapoor v. Simply Life India & Ors., where the Delhi High Court issued an injunction against the defendants for using the name, likeness, and image of actor Anil Kapoor without his authorization on their website and social media platforms. The court also referred to the use of generative AI tools (such as MidJourney AI) to portray famous personalities³ in fictional settings as a violation of their personality rights.

Another case is Amitabh Bachchan v. Rajat Negi & Ors., where the Delhi High Court stated that no third party can benefit monetarily from the use of a celebrity's image without appropriate authorization.⁴ The court also observed that personality rights are an integral part of the right to privacy and dignity under Article 21 of the Constitution of India.

In the case of D.M. Entertainment Pvt. Ltd. v. Baby Gift House and Ors., the High Court of Delhi addressed a case where a defendant sold a baby doll imitating Daler Mehndi and singing a few lines of his famous compositions. The suit was filed for the unauthorised use of the artist's persona and voice. The court emphasized that the common law right of publicity recognizes the commercial value of a prominent person or performer and protects their proprietary interest in the profitability of their public reputation or persona. To claim infringement of personality rights, the person claiming infringement (artist) must be identifiable from the unauthorised use and the use must be sufficient, adequate, or substantial to identify the defendant's alleged appropriation of the persona⁵ or essential attributes. However, the court also ruled that overemphasis on publicity rights can hinder an individual's fundamental right to free speech.  Caricature, lampooning, and parodies may not constitute infringement of an individual's right to publicity. The violation of publicity rights was only seen in the context of false endorsement claims and misleading customers, as a violation of fundamental and absolute rights.

In Digital Collectibles Pte Ltd. and Ors. vs. Galactus Funware Technology Private Limited and Ors., the High Court of Delhi ruled that the use of names, surnames, initials, and images of sport personalities for an online fantasy game, Striker, is not a violation of publicity rights. The court stated that publicity rights cannot be infringed solely on the basis of celebrity identification⁶ or commercial gain. The court also stated that the use of celebrity names and images for various purposes, such as lampooning, satire, parodies, art, scholarship, music, academics, and news, is permissible under Article 19(1)(a) of the Constitution of India and does not fall foul to the tort of infringement of the right of publicity.

Also, in the case of Rajnikanth, Mr.Shivaji Rao Gaikwad vs M/S.Varsha Productions, the Madras High Court underscored the significance of personality rights by examining the use of his name in a movie titled, “Main hoon Rajnikanth.” The court’s observation highlighted that Rajnikanth’s high reputation meant that such associations could not be casually made without his authorization.⁷

Some foreign judgements also highlight the same, one of which is the landmark case that established the right of publicity was Zacchini v. Scripps-Howard Broadcasting Co.,⁸ decided by the Supreme Court in 1977. In this case, Hugo Zacchini was a human cannonball who performed at a county fair in Ohio. A reporter from a local TV station filmed his entire 15-second act and broadcast evening news without his consent. Zacchini sued the reporter and the TV station for violating his right of publicity under Ohio law. The Supreme Court agreed with Zacchini and held that he had a valid claim for damages. The Court reasoned that Zacchini's act was his livelihood and that broadcasting it for free diminished its value and deprived him of his economic incentive to perform.

Another important development in the right of publicity law was the recognition of protection for "look-alikes" or "sound-alikes"⁹ in commercials. In other words, even if a person's actual name, image, or voice is not used, they may still have a claim if someone uses a similar or imitative representation of them. This was established by two cases decided by the Ninth Circuit Court of Appeals in the late 1980s and early 1990s: White v. Samsung and Midler v. Ford.

In White v. Samsung,¹⁰ Vanna White, the hostess of the popular game show Wheel of Fortune, sued Samsung for using a robot dressed in a wig, gown, and jewellery that resembled her in an advertisement for its VCRs. The robot was posed next to a game board similar to the one used in Wheel of Fortune. White claimed that Samsung violated her right of publicity under California law¹¹ by using her likeness without her permission. The Ninth Circuit agreed with White and held that she had a valid claim because the ad clearly evoked her identity and suggested her endorsement.

In Midler v. Ford, Bette Midler (849 F.2d 460; 1988 U.S. App. LEXIS 8424; 7 U.S.P.Q.2D (BNA) 1398; Copy. L. Rep. (CCH) P26,313; 15 Media L. Rep. 1620), a famous singer and actress, sued Ford for using a sound-alike singer¹² in a commercial for its cars. The singer performed a song that Midler had made famous and that was closely associated with her. Midler claimed violated her right of publicity under California law¹³ by using her distinctive voice without her consent. The Ninth Circuit agreed with Midler and held that she had a valid claim because the ad deliberately imitated her voice and exploited her goodwill.

The courts may interpret existing laws to protect personality rights from unauthorized use by generative AI, but there are still unanswered questions about determining the originality and creativity of AI-generated content, balancing personality rights with freedom of expression and fair use exceptions and enforcing personality rights across jurisdictions and platforms. There is a need for more clarity and guidance on how to navigate generative AI and personality rights in India, which may involve revising existing laws or introducing new regulations. Ethical standards and best practices for using generative AI responsibly and respectfully are also needed. Users and creators of generative AI should be aware of potential risks and liabilities, take steps to mitigate these risks and respect the dignity and reputation of the individuals whose personality rights they are using.

The prevailing law in India regarding personality rights is that it is not an absolute fundamental right, and the principles of passing off action in trademark or copyright matters apply for any infringement of the right of personality.¹⁴ The prevailing jurisprudence around AI-generated content suggests that privacy is not considered an absolute right, meaning that one's name and likeness can be recreated by anyone using AI tools as long as it does not misappropriate their goodwill or reputation and still passes the test of freedom of speech and expression.  

India:

Impact of AI Market on GDP¹⁵

Generative AI has the potential to transform various sectors and industries in India, such as business services, financial services, education, retail, and healthcare. According to a report by EY India, Generative AI can add a cumulative US$1.2-1.5 trillion to India's GDP by FY2029-30, reflecting a 5.9 per cent to 7.2 per cent increase over and above baseline GDP. The same report also forecasts that by fully capitalising Gen AI technology and its applications across sectors, India can potentially add US$359-438 billion in FY2029-30 alone. One of the main drivers of Gen AI's impact on India's GDP is the improvement in workforce productivity, which can result from automating repetitive tasks, enhancing human creativity, and augmenting human capabilities. For example, Gen AI can help business services providers to generate high-quality content, such as reports, presentations, and proposals, in a fraction of time and cost. Gen AI can also help financial services providers to offer personalised and tailored products and services to customers, such as robo-advisors, chatbots, and fraud detection systems. Gen AI can also enable education providers to create customised and adaptive learning content and assessments for students, such as interactive textbooks, quizzes, and simulations. Gen AI can also empower retail providers to offer more engaging and immersive shopping experiences to customers, such as virtual try-ons, product recommendations, and dynamic pricing. Gen AI can also enhance healthcare providers to deliver better and faster diagnosis and treatment to patients, such as medical image analysis, drug discovery, and telemedicine. To realise the full potential of Gen AI in India, there are some challenges and risks that need to be addressed. The report by EY India identifies some of the key challenges as skills-gap, unclear use cases, data privacy, ethical concerns, and regulatory uncertainty. The report also provides some recommendations for various stakeholders, for various makers, industry players, academia, and civil society, to foster a conducive ecosystem for Gen AI innovation and adoption in India. Some of the recommendation recommends a national AI plan and multi-stakeholder partnerships in key sectors; strengthening India's AI research and development ecosystem; creating a workforce of the AI future; enabling and broadening access to data; and embracing smart regulation to safeguard responsible AI. However, to harness the benefits of Gen AI in India, there is a need for a collaborative and coordinated effort among different stakeholders to overcome the challenges and risks associated with Gen AI.

Market Size Generative Artificial Intelligence¹⁶

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1‘What Is Generative AI? Everything You Need to Know’  

<https://www.techtarget.com/searchenterpriseai/definition/generative-AI> accessed 12 February 2024.

2‘Generative AI Has an Intellectual Property Problem’ <https://hbr.org/2023/04/generative-ai-has-an intellectual-property-problem> accessed 12 February 2024.

3‘Delhi HC Protects Anil Kapoor’s Personality Rights: What They Are, How Have Courts Ruled |  Explained News - The Indian Express’ <https://indianexpress.com/article/explained/explained law/delhi-hc-anil-kapoor-personality-rights-8951569/> accessed 12 February 2024.

4‘Personality Rights from Amitabh Bachchan to Sushant Singh to Anil Kapoor: Indian & Global View  Point - Lexology’ <https://www.lexology.com/library/detail.aspx?g=288feb40-013a-4b8e-bd1a 165990e6f1d3> accessed 12 February 2024.

5‘Is That Really You?- Emergence of Generative AI in Content Creation- An Analysis of the Legal and  IPR Issues - Lexology’ <https://www.lexology.com/library/detail.aspx?g=07c95db6-6e81-41bc-b950- e3344fd5ff40> accessed 12 February 2024.

6‘Digital Collectibles V. Galactacus Funware : An Interim Decision Or Harbinger - Sport - India’  

<https://www.mondaq.com/india/sport/1333754/digital-collectibles-v-galactacus-funware--an-interim decision-or-harbinger> accessed 12 February 2024.

7‘Delhi High Court’s Landmark Order: Protecting Anil Kapoor’s Persona in the Age of AI – An Indian  Legal Perspective – The IP Press’ <https://www.theippress.com/2023/10/09/delhi-high-courts landmark-order-protecting-anil-kapoors-persona-in-the-age-of-ai-an-indian-legal-perspective/>  accessed 12 February 2024.

8‘Zacchini v. Scripps-Howard Broadcasting Co. :: 433 U.S. 562 (1977) :: Justia US Supreme Court  Center’ <https://supreme.justia.com/cases/federal/us/433/562/> accessed 12 February 2024. 9 Cristina Fernandez, ‘The Right of Publicity on the Internet’ (1998) 8 Marq. Sports L. J  <http://scholarship.law.marquette.edu/sportslawAvailableat:http://scholarship.law.marquette.edu/sportsl aw/vol8/iss2/7> accessed 12 February 2024

10 ‘White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th Cir. 1992) :: Justia’  <https://law.justia.com/cases/federal/appellate-courts/F2/971/1395/71823/> accessed 12 February 2024. 11 ‘What the Right of Publicity Can Learn from Trademark Law on JSTOR’  

<https://www.jstor.org/stable/40040289> accessed 12 February 2024.

12 Alain J Lapter, ‘How the Other Half Lives (Revisited): Twenty Years Since Midler v. Ford A Global  Perspective on the Right of Publicity’.

13 Fernandez (n 9)

14 Ryan Benjamin Abbott and Elizabeth Shubov, ‘Disrupting Creativity: Copyright Law in the Age of  Generative Artificial Intelligence’ [2022] SSRN Electronic Journal <https://papers.ssrn.com/abstract=4185327> accessed 12 February 2024  

15 ‘Artificial Intelligence - India | Statista Market Forecast’  

<https://www.statista.com/outlook/tmo/artificial-intelligence/india> accessed 13 February 2024.

16 ibid.

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