THE INTERSECTION OF INTELLECTUAL PROPERTY AND IDENTITY: SAFEGUARDING THE PERSONA AGAINST GENERATIVE AI MISAPPROPRIATION

Personality rights safeguard the right of an individual's identity, such as name, images, voice, and persona. In a digital era shaped by AI, identity protection has emerged as a fundamental necessity against technological misuse, preserving personal autonomy. While in the Indian legislature, there is no direct mention of personality rights, nevertheless, various legal provisions implicitly encapsulate its essence. Personality protection finds its strongest constitutional affirmation in Article 21, incorporating the right to privacy, autonomy, and personal safeguard.

The Copyright Act, 1957, gives exclusive rights over copyrighted work, offering protection against AI exploitation under Section 14. Sections 38 and 38A empower performers against unauthorized exploitation and marketing of their performance through AI, safeguarding their voice, image, and persona. The moral rights of authors being protected under section 57 enables authors to claim ownership over their works and restrain or claim damages in case of any distortion or modification of their work, including AI-generated or deepfake contents resulting in prejudice to their honor or reputation.

The rapid rise of digital media in online platforms has created a new channel for unauthorized personality exploitation, a challenge that is addressed and complemented by the provisions in the Information Technology Act, 2000. Section 66D prohibits cheating by personation using computer resources or communication devices, including within its ambit offences where an individual’s voice or image is misappropriated through AI, along with Section 66E dealing with punishment for transmitting a person’s private image without consent, violating privacy, applying to cases where AI morphs images to create obscene content using a person’s likeness.

Further, the constitutional mandate being reinforced in The Digital Personal Data Protection Act, 2023, strengthens the personality protection by mandating consent-based processing of personal data, offering a shield against unauthorized AI-generated exploitation of a person’s identity. Combined together, these legal provisions create an integrated framework demonstrating the evolving approach to protecting personality rights in the rapidly increasing era of artificial intelligence.

In 1994, the apex Court of India in R. Rajagopal v. State of Tamil Nadu held that an individual's right to control the commercial use of their identity is part of the fundamental right to privacy under Article 21, protecting against unauthorized use of a person's name or likeness. The Delhi High Court in 2022 in the case of Amitabh Bachchan v. Rajat Nagi granted an ad-interim ex-parte injunction in favour of Amitabh Bachchan and restrained the defendants from infringing his publicity or personality rights by misusing his name, voice, image, or any other attribute for personal or commercial gain. Additionally, in 2024, in the case of Jackie Shroff v. The Peppy Stores & Ors., the Court’s decision to restrain various entities, including e-commerce stores, AI Chatbots, and social media accounts, from exploiting the actor’s name, image, voice, without his consent highlights the growing importance of protecting an individual’s identity and reputation.

The recent decision of the Delhi High Court in Akira Desia Nandan v. Sambawaami studios case marks a significant development in the growing legal complexities surrounding the protection of personality rights amid the rapid rise of AI-driven digital media. The plaintiff averred that Defendant No. 1 has created, published, and circulated an AI movie titled “AI LOVE STORY” featuring the Plaintiff without his consent, thereby violating his right to privacy, misappropriating the Plaintiff’s distinct identity “Akira Nandan”. Complete attributes of the Plaintiff’s persona, image, and photographs were incorporated with such accuracy as to synthetically create the AI avatar of the plaintiff in the movie. The misuse of AI and deep fake resulted in irreparable damage to his name, goodwill and reputation.

Hon’ble Justice Tushar Rao Gedela ordered an ex parte ad interim injunction restraining the defendant from broadcasting and circulating the AI-generating film or any related content, and also barred the defendant from exploiting or misappropriating the plaintiff’s personality traits or imitating of any facet of the plaintiff’s personality on any public online platforms in any manner whatsoever. Directions were also issued to the social media intermediaries to take down the infringing URLs mentioned in the suits.

With the rise of celebrity culture and the pervasive influence of AI in digital media, the concept of personality rights has become increasingly significant. By extending established personality rights principles for the prevention of the misuse of AI and deepfakes, showcased notable progress towards safeguarding identity in this digital age.

Article by - Sayani Kesh