"Imitation is the sincerest form of flattery that mediocrity can pay to greatness". -Oscar Wilde
The transformative developments in Artificial Intelligence and Machine Learning technology have once again opened another avenue which the policy thinkers and IP advocacy groups have to align with the existing IP regime.
The rise of Generative AI has taken the media space by the storm with various A-List actors, announcers, broadcast journalists, dancers, DJs, news writers, news editors, program hosts, puppeteers, recording artists, singers, stunt performers, voiceover artists and other media professionals are looking out for ways to protect their likeness, voice, face and bring restrictions regarding the use of artificial intelligence.
SAG AFTRA Protests, Deepfakes and Personality Rights
In the third quarter of 2023, 'The Screen Actors Guild - American Federation of Television and Radio Artists' (SAG-AFTRA) had been on a strike for over 140 days. They had been protesting against the loss of pay, when AI was used to create scripts and actors working on such scripts were paid differently. As per the truce with Writers' Guild of America, it was decided that 'Hollywood can use generative AI to create scripts or stories, but human writers asked to work on them will be paid as if they worked on any other gig. Writers can't be compelled to use AI, but can choose to do so by agreement.'
The SAG-AFTRA protests have immense significance, it denotes resistance to the changing paradigms of generative AI which have affected the livelihood of the SAG-AFTRA members.
Another raging development is the rise of deep fake technology. Deep fakes are the artificial digital media that is created using superimposed images of a person, manipulating the facial appearance and giving it likeness of the person, thereby giving it an authentic digital look making it impossible to know which media is real and which synthetic.
The widespread usage of deep fake content has created problems such as attacks on personal rights, violations of rights of intellectual property and personal data protection. Deep fakes have also been used in cases of revenge porn, political manipulated media, intervention in elections, et. al.
Owing to the aggressive proliferation of deep fakes in media, we are observing that various celebrities have decided to copyright their face, voice, likeness to protect against unauthorized commercialisation of their Intellectual Property.
Whether it is Bruce Willis' deep faked into speaking in Russian accent, or Robbin Williams posthumously being recreated in social media or Nicki Minaj and Tom Holland being starred in a deep fake clip titled 'Deep Fake Neighbour Wars'; the celebrities are battling deep fakes of themselves leading to the rise in the need for protection of personality rights of the celebrities. There are further concerns that the Studios such as Netflix, Universal, Amazon, Apple are proposing to use AI to replace humans with digital scans.
Kiera Knightley while discussing the SAG-AFTRA protests also claimed that she will be pursuing to copyright her face as she is concerned about the rise of Artificial intelligence. The deep fake technology has threatened to use the voices, likeness of celebrities in creating social media adverts, fake songs and in many instances pornography.
Recently, a deep fake media was created where Bollywood actor Ayushman Khurana's image and media was interacting with the shoppers. This out of the box marketing strategy is expected to soon be replicated by other brands, hence the need to understand and regulate deep fake technology is imperative.
Deep Troubles of Deepfake Technology
Deep fake technology has been fast spreading and falling in nefarious hands. These threats come in the form of fraudulent transactions, false representation of high-profile figures and, in the worst-case scenario, extortion.
Recently in July 2023, Indian police had to deal with their first reported case involving impersonation with the use of deep fake technology. An elderly person was duped of his bank's savings account when an AI generated deep fake video call was received by him resembling a colleague who requested for a large sum of money. On verification, it was later found out that this was a deep fake generated video and the purported colleague had no information of the video call.
Various sporadic cases of phishing, defamation, disinformation campaigns have been observed causing considerable problems.
The issues around Deep Fake Technology again surfaced when Bollywood actress Rashmika Madanna's deep fake video began doing rounds on various social media platforms. In the absence of any specific legislation against Deep fake technology an FIR was registered by Delhi Police's Special Cell under Sections 465 (forgery) and 469 (forgery for purpose of harming reputation) of the Indian Penal Code and Sections 66C and 66E of the Information Technology Act.
This issue spurred the Ministry of Electronics and Information Technology which notified another advisory reiterating that all social media intermediaries must ensure that the users of their platform do not host any content which impersonates another person, and any such content that is uploaded must be taken down within 24 hours of receipt of a complaint against such content, as per Rule 3(1)(b)(vii) and Rule 3(2)(b) of the Intermediary Guidelines and Digital Media Ethics Code Rules, 2021.
Unsurprisingly, various other deep fake videos featuring different actors have surfaced such as Katrina Kaif, Kajol, within days since Rashmika Madanna's issue. The Ministry of Electronics and Information Technology has in response flung into action and sent advisory to social media platforms warning that the safe harbour clause shall remain ineffective, should there be any lapses from intermediaries' side, in failure to remove the deep fakes doing rounds online.
Copyright of Face, Voice, Likeness
One creating way to counter the advances of Artificial Intelligence taking over likeness and moving images of celebrities is through registering personality rights.
With the development of jurisprudence regarding the protection granted to personality rights, the Courts globally, have been proactive in granting protection to exclusive commercial rights to the personality of the celebrity.
Recently, in Anil Kapoor vs. Simply Life India and Ors.1 the Hon'ble Delhi High Court undertook an expansive approach and restrained the defendants from "utilising his name, image, voice, likeliness or personality to make any merchandise, ringtones, or in any manner misuse the plaintiff's name, voice and other elements by using technological tools such as artificial intelligence, face morphing, GIFs, either for monetary gains or for creating any videos for commercial purpose so as to result in violation of plaintiff's rights."
The Hon'ble Delhi High Court directed that adequate charges to be paid to Anil Kapoor, regarding the usage of his name, voice, and likeliness. The Court however maintained a distinction that the satirical writing and genuine criticism shall be protected and would not be held to violate the personality rights. The key distinguishing factor is the scope and extent of commercialisation of the personality rights without any charges being paid to the celebrity.
Way Ahead
With the overabundance of content churned out by Generative AI, there is an overwhelming need to holistically understand how to utilize the potential of Generative AI in the right direction.
The recognition of exclusive commercial/marketing rights over one's face, voice, likeness, etc. would enable that person to restrain any organization or individual from using the personality traits of that person for commercial benefits.
This exclusive marketing right would also correspond to the legal right of the individual to provide for the assignment/licensing of the said legal right to any company in lieu of compensation.
In the era marked by rapid technological advancement, the protection of intellectual property rights faces new and complex challenges. Machine learning, artificial intelligence and the advent of deep fakes have re-written the rulebook for creators, innovators and business worldwide. As we navigate these uncharted waters, it is clear that the future of IP protection demands adaptability and forward thinking solutions.
While the road ahead may be fraught with obstacles, it is also ripe with opportunities for innovation and collaboration. By embracing change, updating our legal frameworks, harnessing technology, and promoting ethical awareness, we can ensure that intellectual property rights remain a cornerstone of creativity, invention, and progress in the digital age.
Footnote
1. CS(COMM) 652 / 2023
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