The Dead Have Influencers Too: Who Owns a Digital Personality After Death?

Introduction

After Sidhu Moosewala died in 2022, several videos appeared on the Internet that seemed to show him still alive. One of the most widely reported examples of this was said to be a deepfake video, Because the video was so widely viewed many people started to ask what the law is going to do about it specifically, when an individual is treated online with technology as if they were still physically alive.

Currently, the law does not explicitly answer this question in India. While many music labels have been working on posthumous AI-generated music for deceased musicians; and many film studios have digitally rendered films to include images of deceased actors; brands also do some sort of advertising using celebrities who have passed on.

The Technology Has Already Moved

Voice cloning can enable someone to replicate another person’s voice based on a small sampling of audio of that individual’s voice recorded previously. The software uses that learning to create additional voice audio pieces with that actual person’s real voice.

The same principle also applies to video representation through digital doubles. What previously required a major studio production budget can now be accomplished quickly and cheaply.

However, an even bigger concern here would be synthetically endorsing someone who is no longer alive by using AI to create a synthetic version of someone who has died. A deceased person’s likeness is then used to create marketable products without consideration or permission from family and/or estate holders before this material is able to be distributed.

The identity of a deceased individual can create a marketable product anytime. Under current Indian law, who owns the likeness of a deceased person remains undefined.

Indian Law Today

In India, the law has made great strides with respect to personality rights, but mainly dealing with those alive. A recent high-profile case is Anil Kapoor versus Simply Life India & Others (2023), which was decided by the Delhi High Court; the court stopped the exploitation of Anil Kapoor's identity through use of artificial intelligence trained on his identity.

The court found that the rights associated with Anil Kapoor's identity are linked to his dignity as per Article 21 and also have commercial value.

This distinction is important because it is relevant in the age of artificial intelligence. Harm from the unauthorised use of someone's identity is not simply the reproduction of an existing image or video. Harm may also occur if a new image or video is created using the existing identity of the person, that is, from their persona.

However, this decision also illustrates that there are limits to existing rights under the current law. It assumes that there is an individual claimant who is alive. A deceased individual cannot bring a claim, although his or her heirs may have a significant interest in protecting the legacy, but it is unclear whether Indian law grants heirs a right of publicity of the deceased individual.

That is the real gap. Indian law protects personality fairly well during life. After death, the protection becomes uncertain.

Why Existing Law Falls Short

The Copyright Act does not really address the problem of copyright protecting original works and not someone's identity per se. Section 57 of the Copyright Act does protect an author's moral rights, but only for existing works. As there is nothing to stop a person from creating a new AI-generated song featuring a dead musician's style, and crediting the original artist, the act does not infringe on any existing copyright as it is a completely new work.

Similarly, the Trade Marks Act contains some restrictions which means that if a trademark celebrity name has been registered and used within trademark law then the celebrity’s name would be protected by law as a trademark. However, the trade mark legislation does not intend to govern the many other uses of a person’s voice, image or digital likeness, which are non-source uses.

Biometric information, voiceprints, and photographic images belonging to deceased individuals may not be adequately protected by the DPDP Act, which emphasizes the protection of ‘data principals' who are all living. As a result, there exists a significant gap in protection for these types of data when used for AI purposes.

As highlighted by Justice K.S. Puttaswamy v. Union of India's principle of autonomy and self-determination, privacy laws are primarily created and constructed for the living; there will likely be some uncertainty regarding the continuation of their applicability after death.

The Questions the Law Has Not Answered

This is where the unresolved questions begins.

First, does training an AI model on the recordings of a deceased person require either consent or payment? If the resulting AI model has commercial value because it can recreate an identifiable voice, there is a strong argument that the training itself should not be free.

Second, should personality rights be treated as one combined bundle, or should they be split into separate categories, since voice, likeness, avatar, and archival footage would each be used in an entirely different manner? A family might be perfectly happy for a tribute album to be released yet refuse to allow their loved one's likeness to be used in a commercial or political campaign.  

Third, can a digital persona legally constitute property? If so, it can be inherited, licenced, assessed for value, and enforced in court. If not, it exists within a legal vacuum where those with the greatest resources will prevail.

Fourth, how do you establish who administers an estate when the heirs do not see the same way? Estates are not always represented by one voice. A family member may want to create an endearing tribute to their late family member using a voice clone, while another may see this as misrepresenting the deceased's values.

Fifth, is it possible to stretch section 57 of the Copyright Act in order to apply it to AI-generated works created after death? The provisions of section 57 focus on the protection of existing works from being altered or incorrectly attributed to the original creator of the work.

What a Better Framework Would Look Like

An adequate framework within India should segregate posthumous purposes into two categories, (1) Commercial use, wherein a rights owner's estate must provide authorization prior to usage, and (2) non-commercial use, which does not need pre-approval from the rights owner’s estate prior to use.

Examples of commercial use requiring pre-approval from the rights owner’s estate include; synthetic endorsement, paid voice duplication, digital avatars used for advertising, and AI generated performances sold. In addition, another means for protecting the use of the deceased's likeness or personality for purposes after death, for the time period of not less than (30) thirty years, should also be legislated.

Non-commercial purposes will continue to be protected and will not be controlled by the rights owner’s estate; examples of non-commercial uses include satire, commentary, journalistic uses, academic uses, and artistic uses. In addition, personality rights should not be used as a means of censorship.

Disclosure is an additional issue which will need to be addressed. If an audience member is viewing a synthetic performance, they should be informed about it.

A registry of rights holders should also be created. For post-mortem rights to take effect, the estate of the rights holder must have a way of making their rights publicly known and tracking and licensing those rights. This will help settle disputes.

Lastly, the law should deal with training data directly. If companies are using recordings or images of deceased persons to develop commercial models, the law should not ignore the fact that value is being taken from that use of the deceased person's image or recordings. At a minimum, a licensing or royalty regime should apply for that purpose.

Why This Matters Commercially

This is not only a question of legal reform; it is a question of markets. Celebrities have their own brands and often their brands will increase in value after their death. There are many existing markets for nostalgia, tribute-based content, archival material that has been released to the public, and digital resurrections. If there is still no clarity in the current legal situation, the market will state: "Use whatever is now cheap and fight over it later."

If there remains a legal ambiguity, there are three negative consequences: 1) families of deceased celebrities will be taken advantage of before they can react; 2) consumers will be misled by endorsements of the dead person that never occurred; and 3) licensed material will become worthless because no one will know what has been truly authorized.

Conclusion

Personality rights for living people are taken seriously under Indian law; however, those rights become inconsistent and uncertain after a person passes away. The inconsistencies in the law can be interpreted to mean that a deceased person’s identity can be used or exploited. Although a deceased person is not able to express their wishes, their likeness and voice can still be used to gain value.

The fundamental question is: Does the law regard this value as a protected legacy or is it viewed as free material that can be extracted without any restrictions?

A posthumous personality rights framework is not an optional consideration; it is the necessary response to existing technologies. The only question is whether Parliament and the courts will enact new laws before the commercial marketplace has settled into a routine of endless performance of dead individuals, with an unending number of licensees, and no protection.

Author: Nitya Jain, 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.

References

Cases:

1. Anil Kapoor v. Simply Life India & Ors., CS(COMM) 652/2023 (Delhi High Court, 2023).

2. Amitabh Bachchan v. Rajat Nagi & Ors., CS(COMM) 819/2022 (Delhi High Court, 2022).

3. Shivaji Rao Gaikwad (Rajinikanth) v. Varsha Productions, 2015 (62) PTC 351 (Madras); Application No. 735 of 2014 and Civil Suit No. 598 of 2014, decided on 03.02.2015.

4. Krishna Kishore Singh v. Sarla A. Saraogi & Ors., IA 5697/2021 in CS(COMM) 187/2021 (Delhi High Court, decided 10.06.2021).

5. Deepa Jayakumar v. A.L. Vijay & Ors., O.S.A. No. 75 of 2020 (Madras High Court, decided 16.04.2021).

6. Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1 (Supreme Court of India, 2017).

Statutes:

• Copyright Act, 1957, Sections 38A and 57.

• Trade Marks Act, 1999.

• Information Technology Act, 2000.

• Digital Personal Data Protection Act, 2023.

• Hindu Succession Act, 1956.

• Indian Succession Act, 1925.

Secondary Sources:

• Jennifer Rothman, The Right of Publicity: Privacy Reimagined for a Public World (Harvard University Press, 2018).

• Anushree Yewale, 'Posthumous Survival of Privacy & Personality Rights', The Legal 500 (11 July 2023).