Featured in the Time 100 / AI (The 100 Most Influential People in Artificial Intelligence) issue, here is why the Delhi High Court’s ex parte injunction represents a landmark victory on unauthorized artificial intelligence (AI) use of one’s likeness.
A year ago, on September 20th 2023 the Delhi High Court delivered an order regarding the defense of the personality rights of Indian actor Anil Kapoor. This is a major case, especially for people in the entertainment industry to seek protection of their image with the growth of malevolent AI use. The case was brought to court by the renowned Indian lawyer Pravin Anand, from the firm Anand & Anand.
Indian actor Anil Kapoor, famously known for starring in a large variety of Bollywood movies as well as Oscar-winning film Slumdog Millionaire, was recently the target of several attacks on his personality rights. Sixteen defendants found themselves in front of the Delhi High Court for misusing his image and other attributes of his personality. As such, M. Kapoor filed a suit seeking protection of his own name, image, likeness, persona, voice and various other attributes of his personality.
With the rise of AI-generated content, people in the entertainment industry especially have grown more and more concerned as to the potential use of their image and personality attributes: AI generated voices have taken on a new life with the creation of songs to replicate famous singers’ voices, deepfakes videos and AI-generated 3d avatars. Considering this current context, this order was very welcomed to help regulate these new uses.
In this particular case, the defendants had used generative AIs to create deepfakes of the actor as other famous actors and actresses, as well as Disney cartoon characters. M. Kapoor’s image was also used to sell merchandise, or motivational courses by creating false endorsements. Others were charging fees (‘dark patterns’ or deceptive practices that mislead and trick the consumers in their decision-making) for its service as well as using his name, dialogues and voice as ringtones. Justice Prathiba M. Singh said in his order:
“The Court cannot turn a blind eye to such misuse of a personality’s name and other elements of his persona.”
This order showcases the need for laws to adapt and evolve with the emerging challenges caused by AI use and abuse. Regulations such as the Right to Privacy under the Indian Constitution (article 21) are a great start but there is a pressing need for a legal framework, in India as well as everywhere else, regarding the potential for misappropriation and exploitation of their individual rights.
This case has set a precedent for others to take action to protect their personality rights, offering remedies such as the removal of infringing content and the awarding of compensatory damages: in July 2024, the Bombay High Court granted interim relief to Indian singer Arijit Singh, after unauthorized AI platforms mimicked his name.
This time around last year, there was a great deal of concern about the impact of AI on filmmaking.
In early November 2023, the Hollywood actors’ union SAG-AFTRA signed a historic agreement with studios. One of the key provisions was designed to protect performers' digital likenesses and prevent their images and performances from being used to train AI systems without consent. The agreement requires studios to obtain explicit consent for creating and using digital replicas of performers, ensuring transparency in how these AI-generated likenesses might be used or modified. A similar agreement was signed with screenwriters in September 2023, to prevent producers from replacing screenwriters with AI.
An example of misuse in the US was the accusation made in May 2024 by American actress Scarlett Johansson against OpenAI and its CEO, Sam Altman, for deliberately copying her voice without her consent after she declined to participate in the current ChatGPT 4.0 system. However, out of respect for Johansson and shortly after her public criticism, the company removed the voice. These recent evolutions allow for a controlled and safer use of AI.
France protects personality rights in an extensive manner through its national and international legislation: article 9 of the French Civil Code guarantees the right to privacy and personality rights (privacy, image rights, voice use); article 12 of the 1948 Universal Declaration of Human Rights and article 8-1 of the European Convention on Human Rights both serve to protect the right to privacy, a fundamental principle.
Act no. 2024-449 of 21 May 2024 aimed at securing and regulating the digital environment (Loi SREN) in France amended article 226-8 of the French Penal Code to specifically include AI. This article prohibits the broadcasting of edited videos as well as ‘visual or audio content generated by algorithmic processing and representing the image or words of a person’ without the consent of the person concerned, if it is not obvious that the video is a montage or if it is not expressly stated. Publishing such montages is punishable by one year in prison and a fine of €15,000. If the offence is committed using an online public communication service, the penalty increases to two years in prison and a fine of €45,000. Any third party using one’s likeness for commercial use would as well be held responsible in regards to French law, in particular article 1240 of the French Civil Code.
In cases involving celebrity look-alikes, the French judges have ruled that this type of imitation was a means used for advertising and commercial purposes to ‘draw the public's attention not to the artist but to a product, and this without having obtained the special agreement of the person concerned’ (TGI Paris, 3rd chamber, 24 Feb 1976) regarding French actor Belmondo and French singer Johnny Hallyday.
It's safe to say that if this had happened in France, the Defendants would’ve been condemned as well. With the entry into force of the EU AI Act starting in July 2024 for some dispositions up until 2026 for others, companies will soon have to inform users when they are interacting with an AI system, unless it's obvious or the AI is used for legal purposes like crime detection. AI systems that create synthetic content (like deepfakes) must mark their outputs as artificially generated (article 50; entry into force in August 2026). Companies must also inform users when they use AI for emotion recognition or biometric categorization, unless it's for legal purposes. If an AI system creates or alters content, the company must disclose this, unless it's for legal purposes or the content is artistic or satirical.
Ultimately, these evolutions in the use of AI are welcomed because they strike a balance between harnessing technological advancements and protecting the rights and livelihoods of creative professionals.
I express my gratitude to Noa Arfi, intern at our Firm, for her valuable assistance in the drafting of this article.
