In a recent case, Indian Playback Singer and Composer Arijit Singh has approached the Honourable Bombay High Court in order to protect his personality rights viz-a-viz, his own name, voice, signature, photograph, image, caricature, likeness, persona, and various other attributes of his personality against unauthorized or unlicensed commercial exploitation. His contributions to the music industry are notable and have garnered him goodwill and reputation all across the world.
By way of this suit, Arijit Singh has pleaded for the protection of his personality rights, which he as a celebrity has the right to command and control due to its exclusivity. This does not merely encompass the exploitation of his rights in a commercial way, but also on basis of torts of dilution and tarnishment. He has also appealed that any modification to his voice or video which causes harm to his reputation would be in violation of Section 38-B of the Copyright Act, 1957.
Personality Rights are not a new concept that developed in the recent years or due to the advancement of technology. They can be traced back to classical natural law which includes rights relating to personality.[1] Further, the German Law is the best example of a system that recognises the right of personality as the basis for comprehensive personality protection. Meanwhile, the French Law was the type of system that did not see a need for the recognition of a general right to personality. In the middle lies the case of Netherlands, where the general was recognised alongside specific.
While these laws were determined in an era that did not have the technological advancement that reached the level of Artificial Intelligence, statutes did develop to protect the traits of an individual in a general context. For example, Article 21 of the Indian Constitution is the closest the Indian subcontinent has reached for the protection of personality rights.[2] If Intellectual Property laws are to be discussed, only a few characteristics of a person are granted the protection of law under these laws. Section 2 (m) of Trademarks Act states the definition of the word ‘mark’, which includes name and signature. Also, the Section 2 (qq) of Copyright Act defines ‘performers’. Both these sections throw light at the fact that personality rights are not recognised to its full extent in India, leaving a wide area of untapped and unexplored jurisprudence. The Indian courts have granted remedy to several such cases of exploitation of personality rights by the use of Trademark Act, but that is only possible in cases where the person has registered mark in their name or a trade in relation to his name. [3]
Trademark law protects the unauthorised commercial use of personality features and personality rights fall on a similar plain[4], but the protection thus provided is inadequate and incomplete. Trademark law only protects the commercialisation of the personality traits and personality rights focus more on the control on use of these traits. With the advent of AI and the Deepfake technology, this acts as an open wound ready to be infected.
While statute jurisprudence remains unexplored, few landmark cases recognise personality rights. In the landmark judgement of R. Rajagopal vs. State of Tamil Nadu[5], personality rights were recognised for the first time in India. In Phoolan Devi v. Shekhar Kapoor[6], even though the artist handed over the rights to make a movie on her life, the depiction of certain scenes in the movie undignified her character and could be taken under her free consent. In Arun Jaitley Vs Network Solutions Private Limited[7], the Honourable Delhi High Court observed that an individual’s popularity on the internet is as significant as it is in real life. Further, the court also stated that a name can acquire its own distinctive significance, especially in cases of highly recognizable celebrity. Another case which reaffirmed the artist’s right to control his public image commercially was D.M. Entertainment v. Baby Gift House[8], wherein the shop was selling dolls that matched Daler Mehendi’s appearance.
Other cases in which personality rights were reaffirmed as follows. In Shivaji Rao Gaikwad (aka Rajinikanth) v. Varsha Production[9], the honourable High Court of Madras granted relief to the actor when the movie with a title that consisted of the actor’s name and might lead a person to believe to be the actor’s biopic, even if not advertised as one. Even if the movie can be said not to be a biopic, the usage of the actor’s name without consent in a derogatory fashion could not be allowed. Furthermore, in Jaikishan Kakubhai Saraf v. Peppy Store[10], use of Jackie Shroff’s name and registered trademark ‘Bhidu’ was found to be misused. The honourable Delhi Court granted relief to the petitioner by blocking any such misuse of the actor’s name or trademark.
While these cases showcase the prompt and just nature of the judiciary, most of them were against an entity thus under the control of the government and statutes. Artificial Intelligence as it stands today, is an unregulated sector, featuring no specific regulation in the nation. Few new laws comprise of NITI Aayog’s National Stratergy for Artificial Intellgene #AIforAll which outlines the development of AI in healthcare, education and agriculture and small infrastructural sectors. The new Digital Personal Data Protection Act (2023) also empowers the government to address concerns thus arising from AI use.
Conclusion
Current IP Provisions as they stand do not provide a vast range to bring AI under its blanket of protection. Due to this, the Indian Judiciary has to work overtime and find ways to recognise injustice in different statutes or take the help of the constitution. What is required is a robust set of ruled that not only deal with the personality rights of people but also recognise the dark side of AI and factor it into the same. With technological evolution on its peak, the laws have to be made while keeping in mind the potential harms of such systems.
References
- Anne Lauber-Ronsberg, The Commercial Exploitation of Personality Features in Germany from the Personality Rights and Trademark Perspectives, 107 TRADEMARK REP. 803 (2017).
- Arun Jaitley Vs Network Solutions Private Limited 2011 (47) PTC 1 (Del)
- D.M. Entertainment v. Baby Gift House CS (O.S.) 893 of 2002 (Del.) (India).
- Daler Mehendi’s appearance. Furthermore, in Jaikishan Kakubhai Saraf v. Peppy Store 2024 SCC OnLine Del 3664
- Phoolan Devi v. Shekhar Kapoor 57 (1995) DLT 154, 1995 (32) DRJ 142
- R. Rajagopal v. State of Tamil Nadu (1995) AIR SC 264
- R. Rajagopal vs. State of Tamil Nadu 1995 AIR 264, 1994 SCC (6) 632
- Shivaji Rao Gaikwad (aka Rajinikanth) v. Varsha Production 2015 (62) PTC 351 (Madras)
- WA Joubert Grondslae van die persoonlikheidsreg (1953) at 13ff; J Neethling, JM Potgieter & PJ Visser Neethling’s law of personality (2005) at 6.
[1] WA Joubert Grondslae van die persoonlikheidsreg (1953) at 13ff; J Neethling, JM Potgieter & PJ Visser Neethling’s law of personality (2005) at 6.
[2] R. Rajagopal v. State of Tamil Nadu (1995) AIR SC 264
[3] D.M. Entertainment v. Baby Gift House CS (O.S.) 893 of 2002 (Del.) (India).
[4] Anne Lauber-Ronsberg, The Commercial Exploitation of Personality Features in Germany from the Personality Rights and Trademark Perspectives, 107 TRADEMARK REP. 803 (2017).
[5] 1995 AIR 264, 1994 SCC (6) 632
[6] 57 (1995) DLT 154, 1995 (32) DRJ 142
[7] 2011 (47) PTC 1 (Del)
[8] Id at 3
[9] 2015 (62) PTC 351 (Madras)
[10] 2024 SCC OnLine Del 3664
Author: Wasfia Zahra, 3rd year student at Gujarat National Law University, Gandhinagar.
