Influencer culture blurs celebrity lines, says advocate Pravin Anand on personality rights

In an exclusive chat with The Indian Express, he shares insights into the evolving legal landscape and the intricacies of litigating personality rights cases, explaining how influencers and individual creators can safeguard their personality rights, much like celebrities.

Excerpts:

How do you see the evolution of personality rights jurisprudence in India in the next five to ten years, particularly in the context of emerging technologies like AI and deepfakes?

Anand: Now that the jurisprudence surrounding publicity rights has started to develop at a consistent speed, it is quite likely that there would be some authoritative orders and judgements passed in this area.

This would obviously help clarify the scope and extent of these rights along with their exceptions. In the next five to ten years, it is quite likely that newer issues would emerge as a result of the interface between AI and publicity rights.

In addition to recognised attributes of a persona like name, image, voice etc., anything evocative of the celebrity could be protected like in the US. Using something unsavoury about a celeb as part of training data for an AI tool might also lead to arguments that this perpetuates the wrong.

How has the growth of influencer culture and micro-celebrities impacted the scope and enforcement of personality rights in India?

Anand: The growth of influencer culture has blurred the line between celebrity and non-celebrity.  In other words, these influencers also create original and creative content which is worthy of protection.

Just like a celebrity, their personality also becomes worthy of protection due to their distinct body of work. Therefore, we will see more personality rights cases involving individuals who are in the creative domain.

What strategies do you recommend for individual creators to protect their digital or virtual identities under current laws?

Anand: Firstly, the expressive output of these individuals can be protected under copyright law. For example, animations and drawings can be protected as cinematographic films and artistic works respectively.

Songs can be protected as musical works, etc. The individuals can also protect their names through trademarks and apply for protection which covers use on the internet and the metaverse. These individuals can also ensure that their persona is not misused by AI companies for training data.

Do you think in the coming times courts would extend a similar protection to dead personalities?

Anand: This is going to be a contentious issue. Publicity rights are recognised posthumously in certain countries and the term of protection may vary from country to country.

To achieve and extract full effectiveness of these rights, it is imperative that the heirs of famous celebrities are able to benefit from the commercial use of the celebrities; persona after their demise.

The biggest and most immediate hurdle is distinguishing publicity rights from privacy rights. The current thinking is that privacy dies with the individual and as a consequence of this, so does the publicity rights.

It should be seen as a distinct property right and not through the prism of privacy rights which will make it a fully descendible right.

Which recent case laid the foundation for the right of publicity in India?

Anand: The Daler Mehndi case decided by the High Court of Delhi in the year 2010 was one of the first cases on publicity rights in India. Amongst the 20 odd well reported cases decided since then, it is jurisprudentially the strongest and most informative. Most subsequent cases follow this as the foundational case.

After more than a decade, the Amitabh Bachchan case can easily be said to be the trigger for a flurry of lawsuits. And this resurgence is mainly due to the propensity of harm that generative AI tools can cause. The Anil Kapoor case followed this which involved AI subject matter and deepfakes.

How would you approach defending personality rights in cases where the individual is not a celebrity but faces similar misuse of their identity?

Anand: Everybody enjoys the right to publicity, whether a celebrity or an ordinary individual. It is only that celebrities can easily protect these rights and become worthy of them since the law assumes that their persona has a certain economic value.

For an individual to prove this, one way is to show that during his/her lifetime, he/she exploited his/her persona in some manner and that it has an independent economic value.

This of course is not an impossible task. A better and easier course would be to file a lawsuit for violation of privacy rights which has more to do with the dignity of an individual than economic rights.

Are there challenges in litigating personal rights cases with varying judicial interpretations in different states?

Anand: Publicity rights can be protected as long as the person whose rights have been infringed is identifiable from the misuse and has some economic value in his or her persona.

Therefore there are not too many pre requisites required before the right is enforced. Issues like interpretation should not cause any significant concerns specially since India does not have any codified law on publicity rights and adopts common law.

However, once the law on the subject refines further, some interpretational issues may arise due to the advent of AI which is still in the process of being fully understood.

How do you navigate conflicts between personality rights and the freedom to perform satire, parody, or artistic expression in your cases?

Anand: Parody, satire and memes etc., are all permissible forms of artistic impressions. In fact the Jackie Shroff case of the High Court of Delhi recognised these distinctly as being permissible.

It can be quite easy to discern the difference between a genuine parody and someone who is trying to usurp the goodwill and reputation of a celebrity for commercial gains. Most of these expressions also come with disclaimers and adopt all measures possible to prevent any confusion amongst the public.

Of course, at times the line is grey and it becomes difficult to tell one from another. This is when the subjective and intuitive experience of a judge comes into play.

Can you share examples where technology companies have cooperated or resisted in personality rights enforcement?

Anand: Most of the times technology companies have cooperated in endorsement of publicity rights, whether these are independent companies that own some technological tools or whether they are genuine intermediaries. They are often very cooperative since there is a unanimous feeling that the deepfakes are dangerous and piggy backing of a famous person’s goodwill is also not acceptable.

One example would be Google, which has very detailed policies dealing with violation of publicity rights and other forms of IP (intellectual property).

As more of these suits are filed, we will see a higher degree of contest and parties are bound to be non-cooperative. Even the Ministry of Information Technology who is often a proforma party in such lawsuits is highly cooperative in taking down these infringing websites. Also some intermediaries comply in the fear that not doing so would rob them of their intermediary status.

Can contracts and endorsements preemptively safeguard personality rights?

Anand: Contracts and endorsements can definitely safeguard personality rights promptly. Brands that hire celebrities are also aggrieved in such cases since they have obtained exclusivity for the celebrity to endorse their product.

A contract also helps have water-tight protection. It can help quantify what the celebrity is entitled to for exploitation of his persona. AI as an area can also be contractually detailed in the contract.

From your experience, what are some misconceptions about personality rights among clients and the general public that you often address?

Anand: Firstly, people often consider publicity rights only relatable to celebrities. In fact, these rights are enjoyed by all and sundry such as famous professionals, politicians and even ordinary individuals. Secondly, people often conclude that a suit may fail if the plaintiff cannot satisfactorily prove a violation of his or her personality rights.

This is not true since multiple causes of actions can be attracted in such cases and the same person may fail under one cause of action but succeed under another such as passing off, impersonation, moral rights or performers rights etc.

Lastly, the general public often believes that these lawsuits would stop all formats of expression whether off line or online. For example, people will not be able to perform mimicry. This is not true at all since the law clearly recognises these permissible modes of expression.

What about lookalikes of film stars? They are often seen on social media using the celebrity persona, dialogues, and attending birthday parties, weddings and other social gatherings?

Anand: One cannot challenge them unless they’re making money on that concept or misrepresenting themselves to be the original.

It’s not my fault that I look like an actor and I can’t be blamed for it. But I can’t commercialise it and say, ‘I’ll charge one lakh fee because I’ll attract attention of people’ or say ‘I am Amitabh lookalike’. I can’t charge money and represent myself as the actor. In the absence of any misrepresentation or a commercial deal, just because someone looks like an actor, doesn’t make it actionable.