Deepfakes and IP: Is Personality a New Form of Property?

Introduction: The Collapse of Reality and Identity

With the advent of deepfakes technology, the notion of what constitutes one’s identity in the modern world has changed dramatically. The idea that there exists a constant and reliable identity of a person in his or her appearance and personality has become questionable, since the face, voice, and other unique features of any person can be convincingly mimicked through such software, producing a deepfake video with the depicted individual taking actions he or she never did. Thus, the problem at hand goes beyond that of faking something; it concerns the very notion of identity and the possibility of its existence at all within a legal framework.

This creates a legal dilemma in the sense that there is a need to know what kind of property is appropriated when one creates a deepfake. Is it only the individual’s image like a copyright or a trademark? Or is it more than just that? In reality, the challenge here is that deepfakes do not only copy one’s identity, but they distort and reinterpret it in such a way that it causes serious harm. There is, therefore, a need to reflect on the theoretical basis of intellectual property laws and whether or not one’s personality is property.

The Historical Evolution: Personality as a Proprietary Interest

The concept of economic value being attached to personality cannot be said to be anything new in itself. It has been recognized for some time now that in legal terms, people enjoy certain rights such as the right of publicity, which entitles them to use their persona for commercial purposes in a manner of their own choice. The right of publicity developed as an evolution of the right to privacy and later transformed itself into a proprietary right. This has been most vividly illustrated by the U.S. Supreme Court case of Zacchini v. Scripps-Howard Broadcasting Co The court found that broadcasting a performer's entire act without his/her consent would harm the performer’s economic interests as the performer could no longer make money out of his performance.

The Indian courts too have travelled down the same route as far as recognizing the economic dimension of personality is concerned. For instance, in the case of Titan Industries Ltd. v. M/s Ramkumar JewellersThe High Court of Delhi ruled that celebrities possess a proprietary right in their personalities and therefore their photographs cannot be used without their permission because that amounts to exploitation of their economic value.

The Property Paradigm: Strengths and Limitations

The approach to viewing personality as property allows for some clear practical advantages. The first one is related to the enforceability aspect: it will allow an individual to seek remedy through injunctions and compensation of damage. Another advantage of the property-based paradigm of personality protection is its compatibility with the reality of an economic environment where identity is often monetized, particularly in cases of celebrity identity. Indeed, it will allow for tackling the issue of unauthorized endorsements and advertisements.

On the other hand, this approach appears to be inherently flawed. Property law is concerned with the issue of economic benefit and exclusion, aiming at preventing others from utilizing a resource in a way that undermines its market value. This approach is useful and efficient when talking about the damage to economic interests; however, it becomes problematic in case of personal damage. In case of deepfakes, the problem is obvious: even though there will be no economic damage, the damage will be significant.

Deepfakes and Dignitary Harm: Beyond Economic Loss

Deepfakes form a new class of wrongs that go beyond the scope of existing laws. They not only involve the unauthorized use of information but also create a distorted reality with which the reputation of a person could be changed. As indicated in Dignity and Deepfakes, deepfake technology can create various types of wrongs like loss of control, damage to reputation, and psychological harm. Such harms are dignitary in nature in that they impact how people perceive an individual or how the person sees themselves.

A loss of control stands out among other dignitary wrongs. In fact, identity cannot be seen as a passive feature; it should be viewed from the perspective of active construction. By using deepfakes, people are given the power to manipulate someone's identity without permission. This causes the feeling of helplessness, as one's identity becomes dependent on third parties' decisions. A damage to one's reputation can follow from the above harms since deepfake technology creates an opportunity to falsify information about oneself, thus making people believe in something that may turn out to be false eventually.

Constitutional Dimensions: Personality as an Aspect of Dignity

The shortcomings of the property approach become apparent when analysing the matter in light of constitutional law. Privacy was held to be a fundamental right in K.S. Puttaswamy v. Union of India. It was noted in the opinion that there exists a fundamental right of an individual to decide who will have access to his or her personal data and identity. While this legal principle does not explicitly apply to deepfakes, its application is obvious. The argument can be made that identity is not an economic resource but something inherent in human dignity and worthy of protection.

From this point of view, it makes sense to shift the focus from ownership to autonomy. The issue should not be whether personality can be considered someone's private property but whether individuals have the right to control the use of their identity. It is a much more suitable framework for addressing the harm caused by deepfakes since their purpose is rarely economic exploitation but violation of autonomy.

Reputation and Identity: The Expanding Scope of Protection

In several judicial decisions, the link between identity and reputation has been appreciated. In Vidal v. Elster, the United States Supreme Court noted that a man’s name and identity are a component of his or her reputation, and that any unauthorized use may lead to harm without economic damage. Here too, there is an appreciation of the fact that identity goes beyond being a commercial property and becomes a social construct which helps others form an opinion about an individual.

Similarly, in Indian courts as well, the same appreciation is seen. In the case of ICC Development (International) Ltd. v. Arvee Enterprises, it was noted that goodwill and reputation are intrinsic components of identity and need protection independent of any commercial consideration. The point being made here is that personality values go beyond commercial interests to become a social issue. It is important to appreciate this aspect while considering deepfakes.

The Enforcement Gap: Limits of Existing Legal Remedies

One of the key issues that arise from the existence of deepfakes lies in the insufficiency of present day legal remedies. While defamation and invasion of privacy may help remedy some of the wrongs, it often fails to stop the widespread propagation of damaging content. This issue becomes more complex when taking into account the liability regime for intermediaries, since they limit the legal liability of internet service providers towards third party content.

According to Dignity and Deepfakes, legal claims often prove to be ineffective either as a matter of substance or statute since many of these claims fail to address the issue of dignitary harm or are ineffective in stopping the propagation of deepfakes because of statutory immunity for internet service providers. This results in situations where individuals may have a legal claim but no effective remedy available to them.

Toward a Hybrid Framework: Reconciling Property and Dignity

It is evident from the above discussion that a purely property-based theory as well as a dignity-based theory alone will not be adequate in addressing deepfakes. There should be a dual approach that includes aspects of both approaches in order to tackle the problem effectively. The property approach provides means by which deepfake content can be detected and deleted as soon as possible. On the other hand, the recognition of identity in its dignitary aspect would ensure that the law recognizes the full range of harms caused.

A hybrid approach to the law on deepfakes is also consistent with how the right of publicity came to be recognized initially. Initially, the objective was to protect the economic and dignitary interests of people. However, there is a need for a return to the earlier state of affairs.

Conclusion: Beyond Property: Protecting Personhood

Deepfakes have revealed the limitations of the traditional understanding of intellectual property law with regard to concepts of identity. Though personality may share some features of property, it can never be entirely captured by or protected in the proprietary discourse. Deepfakes create not only an economic interest in personality but also threaten the very core of an individual's dignity and autonomy.

The issue here is not just a matter of classification and defining the boundaries between property and personality but rather a need for a new approach to the problem. Identity cannot simply be seen as property since it is who we are as opposed to what we possess. It can never be treated exclusively in terms of economics; yet, in order to defend it, it is important to take its economic aspect into account.

Author: Akshata Singh, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.