[This three part post is authored by Akshat Agrawal. Akshat is a practicing litigator working at Saikrishna and Associates. He did his LLM from Berkeley Law in 2023 specialising in IP and Tech law. His previous posts can be found here. He would like to thank Sneha Jain and Angad Makkar for their comments and discussion. He adds the following disclaimer: After some discussion around an earlier draft and an admitted history of verbosity, I would also like to acknowledge the usage of Claude.ai for helping me re-frame the draft more succinctly and in a reader friendly manner. Views expressed here are personal.]
Ex Parte Orders on Personality Rights
Courts lately have been passing a slew of ex-parte ad interim orders against Generative Artificial Intelligence (‘gen AI’) models for training their models using the voices of celebrities, and for producing output that reciprocates the celebrity’s voice. (Not their performance, just their voice! The difference is crucial!)
Most recently, in Arijit Singh v. Codible Ventures LLP and Ors., the Bombay High Court has granted an ex-parte ad-interim injunction against various gen AI tools prohibiting them from exploiting the “name”, “image”, “voice” and “personality traits” of the renowned singer Arijit Singh. Prior to this, in Jaikishan Kakubhai Saraf alias Jackie Shroff v. The Peppy Store and Ors., the Delhi High Court restrained a gen AI chat-bot from operating its platform which responds to certain questions in the way, the famous actor Jackie Shroff would. Even before this, the Delhi High Court in Anil Kapoor v. Simply Life India and Ors.,has restrained various Defendants from using gen AI tools for exploiting the attributes of the persona of the famous actor Anil Kapoor, including his voice, to create any merchandise, ringtones, ring back tones etc.
Importantly, for our purposes, due to these orders essentially being ex parte, none of these Courts have indulged in weighing whether the additional revenue stream supposedly due to the celebrity for exploitation of their likeness/voice is a more/less important legal interest when pit against the freedom of expression of society, and commercial ventures in using their likeness/voice as a cultural symbol or for producing new expression as a part of the cultural grammar (when use is not deceptive or defamatory, but merely appropriative). The analysis of freedom of expression has been restricted to cases of parody/satire/memes––due to the potential impossibility of licensing the same, resulting in potential market failure and thus a need to protect. But does freedom of expression stop short at that? At least a finding thereof is crucial yet missing.
Dismantling the Defense: Why Common Justifications for Publicity Rights Fall Flat
Prof. Michael Madow, in his seminal (and scathing!) piece in 1993 titled Private Ownership of Public Image (pdf) provided a contrary point of view, in defense of use of the name/image and likeness of celebrities, for commercial purposes, however in a non-deceptive/defamatory way that does not harm the reputation of the celebrity or mis-appropriate/represent their goodwill. Here are the key repudiations, which may all the more be relevant for Courts to consider in defense of use of such names, images, likeness and voices by genAI platforms, especially due to the want of a statute.
A. “It Protects Their Hard-Earned Reputation”
The Claim: Celebrities have valuable personality rights due to their immense goodwill and reputation. Unauthorized use for commercial gain violates these rights.
The Reality Check:
- The Meaning Monopoly: It’s Not About Money, It’s About Meaning: The judicial and academic rhetoric on publicity rights makes reference to ‘natural right’, ‘economic incentives’ and ‘unjust enrichment’. The subtext however is control over the production and circulation of meaning in our society. It’s not really about protecting celebrities’ income streams; it’s about who gets to control the narrative in our culture. By framing publicity rights as a form of property protection, we’re actually granting celebrities (and their management teams) the power to shape public discourse and cultural meaning, in a top-down centralized manner, given their relevance to the grammar of cultural communication and consciousness of our society.
- The Fame Lottery- “Deservingness” Fallacy: “Fame does not play fair, it plays favorites,” says Madow. This arbitrary nature of fame utterly undermines the idea that celebrities inherently deserve exclusionary rights to profit from their public image. Fame often hinges on factors entirely beyond an individual’s control:
- Timing: Being in the right place at the right time.
- Luck: That random viral moment or chance encounter.
- Societal trends: Riding the wave of what’s “in” at the moment.
- Collective whims of fans and media: The unpredictable nature of public attention. “Plenty of people become famous through sheer luck, dramatic misfortune, or involvement in scandal or criminal activity. Do they ‘deserve’ to own and control their celebrity identities?”
The concept of “deserving” fame or the right to control one’s image becomes extremely problematic when we consider the arbitrary nature of celebrity. A sports star who achieves fame through skill may seem more “deserving” than a reality TV personality who becomes famous for outrageous behavior. But who are we to judge the value or legitimacy of different forms of fame? The legal system certainly isn’t equipped to make such distinctions.
- Fame: Nature or Nurture?: Fame is not solely produced by individual effort but is relationally constructed. The public and media play crucial roles in ascribing semiotic power to celebrities. Publicity rights ignore this collaborative reality. This point underscores the collective nature of fame creation. A celebrity’s reputation isn’t solely the result of their own efforts; it’s co-created by fans, media, and the broader culture. Granting exclusive control over this collectively produced asset to the celebrity alone is a fundamental misunderstanding of how fame works. We, the public, are active participants in creating and sustaining celebrity:
- Fan culture: From letter-writing campaigns to social media stan armies.
- Media amplification: Tabloids, entertainment news, and gossip sites.
- Consumer choices: What we watch, buy, and engage with shapes the celebrity landscape.
Moreover, there’s no empirical justification for claiming more labor input by famous individuals compared to non-famous ones. Cultural production always involves borrowing and reworking existing cultural elements. Society as a whole plays such a significant role in creating and maintaining celebrity status, how can we justify giving individual celebrities exclusive control over their public image? It’s akin to allowing a surfer to claim ownership of the wave that carried them to shore.
- The Reputation Paradox: How can a movie star or a professional athlete, who had deliberately and energetically sought the limelight, complain of embarrassment and hurt feelings when an advertiser or merchandiser simply gave their face additional publicity?
B. “It’s Their Voice, Their Face – They Should Control It”
The Claim: Technological exploitation infringes upon an individual’s right to control and protect their own likeness and voice.
The Reality Check:
- The Privacy Bait-and-Switch: Initially conceptualized as protection against “embarrassment” or “reputational injury,” personality rights have morphed into a property-like right to control and profit from one’s likeness. This evolution reveals how publicity rights have strayed from their original purpose. What began as a protection against genuine harm has become a tool for extracting profit from public attention. This shift fundamentally alters the balance between private rights and public interest.
- The Celebrity Privacy Paradox: Continuing the discussion on the question in Part A under the “Reputation Paradox” sub-head, it is important to note that the above question exposes the inherent contradiction in many publicity rights claims. Celebrities actively seek public attention and benefit enormously from it. To then claim harm from that same public attention when it’s not directly compensated seems disingenuous at best. The real complaint is about uncompensated publicity, not unwanted exposure. This paradox cuts to the heart of why publicity rights for celebrities are so problematic. Public figures actively court attention and benefit enormously from public recognition. To then claim a privacy interest in controlling all uses of their image is inconsistent with their chosen public role.
- The Public Domain Dilemma: Aren’t the voices and images of celebrities already in the public domain by virtue of their celebrity status? This places them outside their zone of reasonable expectation of privacy, especially for non-deceptive uses. This question challenges the very basis of publicity rights. If someone has deliberately made themselves a public figure, profiting from public attention and recognition, how can they then claim exclusive control over their public image? It’s akin to a company trying to trademark common words after they’ve entered general usage.
- Privacy vs. Property: A defense of privacy using the well-founded argument of ‘dignitary interests’ while simultaneously enabling their evasion/licensing via contract would be nothing short of perverse. Publicity rights are thus, suspect to, this logical inconsistency in being treated rights as a form of privacy protection. If these rights are truly about protecting personal dignity, how can we justify allowing them to be bought, sold, and traded like any other form of property? This commodification of personality undermines any claim to dignitary protection. The fundamental reduction of the fundamental right to privacy to a monetarily trans-actable activity let alone to the vagaries of the freedom of contract, is contradictory to its foundational justification based on human dignity. For instance, someone who is economically in need, could have the option to give up their right to privacy for a meagre compensation, in respect of a huge volume of their personal data, merely on account of the fact that the meagre compensation was something that they, as rational fools, preferred at that instant of time. Courts looked down upon such waiving of personal and fundamental rights through economic transactions, as the same would be detrimental to fundamental “being” in a society.
I’ll continue the discussion on more repudiations in Part II of this post.