Personality Rights – Is it enough to protect us from AI? – Selvam & Selvam

It is not really surprising that with the rapid development of technology, its adverse effects are also increasing every day. But is this having more implications on the popular personalities of our society, or has it just been appearing so lately? Let’s have a look.

Recently, many popular actors in our entertainment industry have been victims of very convincing Deepfake videos inciting widespread alarm all around. Rashmika Mandanna, Alia Bhatt, Katrina Kaif amongst many others have been victims of this wherein their face had been morphed in several lewd videos and circulated widely online. Deepfake videos, which use artificial intelligence to manipulate images and videos to make them appear genuine, have become alarmingly convincing also causing chaos in the political environment during the recent Lok Sabha elections, with fake videos of Bollywood actor Ranveer Singh criticizing a political party going viral, and a deepfake of actor Aamir Khan appearing to support a specific political party. With deepfake technology being easily available at the hands of anyone with access to electronic devices and internet, it has started being misused to depict popular personalities allegedly supporting illegal online gaming apps, for advertising products which the actors hadn’t signed up for or even creating lewd videos of actors and circulating them around the web.

Not only deepfakes, the recent ‘All-knowing’ Open AI ChatGPT has also been recently involved in an allegation by popular Hollywood actress Scarlett Johansson who has recently filed a suit claiming that Open AI has adopted her voice for the chatbot even though she specifically denied permission for the same twice.

In response to these threats, many popular personalities have started trademarking their names to protect their goodwill and reputation from being misused by technology.

While the acts of creating and circulating deepfakes and videos morphed using artificial intelligence technology blatantly violate the Right to Privacy guaranteed under our Constitution to the concerned individual and amounts to acts in contravention of Sections 66 and 67 of the Information Technology Act, 2000 along with the guidelines offered by the Ministry of Electronics and Information Technology amongst other laws, but the main question is whether the existing intellectual property laws offer any protection or legal recourse in such scenarios? To be honest, under the current system, the scope of protection is limited. These well-known personalities have very few remedies under Copyright Act (such as if the morphed video is an edit of the original video in which the personalities had copyright rights) or at times under the Trade Marks Act (if they had trademarked their name or if any of the trademarks depicted in the video has been registered by them or under the law of passing off depending on the circumstance of the case). However, the existing legislations do not seem fully equipped to address the complexities of the advent of artificial intelligence in the media.

Considering the same, the Courts have started providing remedies under the scope of personality rights wherein protection is granted against the unauthorized use of names, images, voice, likeness, dialogues or traits of popular celebrities. Various High Courts have been recognizing personality/publicity rights – including that of celebrities such as Jackie Shroff, Amitabh Bachchan, Anil Kapoor, amongst others; and ordering for taking down infringing online media, taking down infringing domains, issuing advisories on regulations to intermediaries hosting such content and ordering compensatory damages primarily.

Having said that, the effectiveness of these remedies is still questionable. Even though these remedies provide a temporary relief against the primary source of the infringing video/media, it does not prevent the confusion already caused or the dilution caused to the celebrity’s image. In today’s time, once a video is ‘viral’ it becomes almost impossible to remove it from the global web completely no matter the steps taken. Once uploaded, there is no reversing it. Thus, it is an indispensable necessity to introduce new provisions or update the existing intellectual property, technology, media and telecommunications legislations to protect victims from the dark side of such technology, especially for the popular figures in the society, as these acts not only affect their livelihood but also affect the general public who are influenced by such celebrities.

In the author’s personal opinion, Trademark law when implemented and enforced effectively can play a crucial role in the protection of personality rights of celebrities and to target the prevention of deepfakes and unauthorized use of an individual’s identity or likeness by third parties. The very objective of trademark law is to distinguish the source/origin of a product or service and to prevent unauthorized misuse of brands to avoid confusion or dilution of the original one. In essence, personality rights share the same objective – that is, to protect the goodwill and reputation accrued by popular figures among the public by preventing misuse of their personalities and traits. Similar to the law of passing off protecting the common law rights of owners even without trademark registration, celebrities or popular figures must be given protection of their identities and personal characteristics even without express registration of their rights.

The law must evolve to address these issues and it is necessary for it to be made stringent with stricter punishments to prevent unauthorized use of people’s identities and likeness while bringing in strict regulations regarding posting such media on third party platforms. The availability of such technology on the open medium for everyone to utilize as they desire, should be regularized to prevent such adverse consequences. Regulating the use of artificial intelligence has become the need of the hour as development of such technology has become a necessary evil and effective regulation of it is the only way forward.

Written by Keerthana K