The emergence of AI-generated synthetic content, including deep fakes, has now extended beyond images to encompass AI-generated clones of real human voices. This not only increases the risk of misinformation and harassment, but it may also violate the personality rights of the individuals whose voices are cloned. To address these concerns US legislators proposed the "No Artificial Intelligence Fake Replicas and Unauthorized Duplications" (No AI FRAUD) Bill, aiming to protect individuals from AI manipulation and exploitation. The Bill creates an intellectual property right in the voices and likenesses of individuals. However, it has faced criticism for being overbroad and vague, potentially hindering free speech and artistic expression. Additionally, it extends these IP rights beyond the death of an individual. In India, the voice and likeness of an individual are considered protected under personality rights. The concept of personality rights has been developed through judicial pronouncements. Courts like the Delhi High Court have held that personality rights cannot be exploited without the consent of an individual. However, the rights do not extend beyond the lifetime of the individual, which has implications for the use of deceased artists' voices in AI-generated creative works. The discussion surrounding AI-generated content and personality rights necessitates collaboration with stakeholders from creative industries. Further, utilizing existing legal principles and developing technological solutions for identifying AI-generated content may be more effective in addressing the challenges posed by AI technology.
Artificial Intelligence-generated synthetic content or deep fakes, is usually associated with images created by superimposing an individual’s face or likeness onto an existing image. AI-assisted recreations or “clones'' of real human voices are the latest form of deep fakes. In February 2024, the family of the late singer SP Balasubrahmanyam issued legal notices to the producer and music director of the film “Keeda Cola, for releasing a song by an AI-generated clone of Mr. Balasubrahmanyam’s voice.[1] Mr Balasubrahmanyam’s family claimed that the filmmakers had neither obtained their consent before creating an AI-generated clone of his voice nor had they offered the family remuneration for the commercial exploitation of his voice.
Utilizing AI-generated voices to produce songs mimicking the voices of artists who didn't originally perform them appears to be a creative application of AI. However, individuals possess the right to protect their human attributes, such as their voice or likeness, against commercial exploitation or depiction in the public domain.[2] Such rights, known as personality rights, may be violated when AI is used to replicate or clone a celebrity's voice, particularly for commercial purposes like in films. Moreover, AI-cloned voices have also been employed to impersonate individuals and fraudulently solicit money from their friends and family.
In response to such concerns, legislators in the US proposed the "No Artificial Intelligence Fake Replicas and Unauthorized Duplications" Bill (No AI FRAUD). The Bill aims to address the unauthorized exploitation of human likenesses or voices through AI technology and safeguard individuals from harassment, bullying, or abuse through AI manipulation.[3] The No AI FRAUD Bill creates intellectual property (IP) rights in a living or deceased person’s likeness or voice, thus preventing these attributes from being digitally replicated without consent. The IP rights created under the Bill can be transferred or licensed for digital depictions through a contract. The Bill also permits the commercial exploitation of a person’s voice and likeness up to 10 years after their death, whereby the heirs can provide consent on the deceased’s behalf.
However, other jurisdictions seeking to emulate such an approach must pay heed to the Bill’s potential drawbacks. For instance, the Bill has been criticized for being overbroad and vague on multiple counts. Firstly, the definitions of “digital depiction” and “digital voice replica” include the imitation or even approximation of a person’s voice or likeness that is created or altered using digital technology. Such broad language of the Bill may even restrict parodies, mimicry or the creation of “memes”.[4]
Secondly, the No AI FRAUD Bill stipulates that First Amendment protections will be a valid defense against the violation of the IP right established by the Bill.[5] The First Amendment to the US Constitution guarantees freedom of speech. However, the constitutional right to freedom of speech is always in operation regardless of the Bill specifically mentioning it as a defense.[6] The Bill even limits the First Amendment protections by requiring courts to balance the public interest in access to the use of voices or likenesses, against the IP right while assessing defenses to a violation.[7] The lack of clarity in outlining the boundaries of the defense, and the simultaneous restriction of First Amendment protections compounds the challenge that courts already encounter in deciding disputes concerning freedom of speech.[8] Further, the Bill lists certain factors to be considered while allowing a defense, such as if the nature of use is commercial and the impact on the IP right owner’s work. However, these factors are merely illustrative and do not set forth definite criteria that must be fulfilled to constitute a valid defense. Such vague exceptions to an IP right may result in people curtailing their artistic expression due to the fear of facing expensive lawsuits. Thus, the Bill may have a chilling effect on speech and may discourage the legitimate use of digital means and AI technology for creative pursuits.
Thirdly, the Bill suggests that the IP right can be extended for up to 2 years beyond the initial 10 years after a person’s demise, provided that the heirs can demonstrate commercial use. However, the language of the provision is convoluted and unclear about when the posthumous IP rights are terminated after the 10-year period.[9]
In the Indian context, the courts have held that a person’s human attributes and their personality rights cannot be exploited without their consent.[10] In Titan Industries Limited v. M/s Ramkumar Jewellers the Delhi High Court specifically protected the personality rights of celebrities like Mr Amitabh and Mrs Jaya Bachchan when their likeness was used in commercial advertisements without their consent.[11] The Court held that famous individuals possess a distinct commercial interest in licensing their personality rights and, thereby have a right to choose how their likeness is utilized.
The Delhi High Court has also found that using AI technology to create deep fake images violates personality rights. In September 2023, the Delhi High Court decided a lawsuit concerning the unauthorized creation of digitally altered images based on the likeness of the actor Anil Kapoor.[12] In this case, the Court restrained the defendants from using the actor’s likeness for monetary gain or other misuse. The Court also observed that with respect to famous persons, free speech is protected in the form of news, satire, parody, and genuine criticism, but only if it does not tarnish their reputation. Furthermore, courts permit the commercial use of publicly available information, about a celebrity, including their name or image, as long as it does not indicate any endorsement by or association with the celebrity. Thus, an AI-generated image or voice of a celebrity that utilises public information, does not tarnish their reputation, and includes a disclaimer that the content is not associated with the celebrity may not violate their personality rights.
Interestingly, unlike the proposed No AI FRAUD Bill, Indian courts do not extend personality rights beyond the person’s lifetime.[13] In a lawsuit filed by the late actor Sushant Singh Rajput’s father, against the making of films based on his deceased son’s life the Delhi High Court held that personality rights end with the death of the individual.[14] The Court stated that personality rights stem from the right to privacy, and are not property rights that can be inherited by legal heirs. The absence of posthumous personality rights is beneficial for creative experiments using the voices of deceased artists like SP Balasubrahmanyam.
The statutory creation of posthumous personality rights will require extensive discussion with stakeholders from creative industries to assess its impact on innovation and free speech. Legislative exercises like the AI No FRAUD Act are indeed valuable as they spark discussions surrounding the challenges posed by AI technology. Nevertheless, it may be prudent to leverage the principles already established by Indian courts, to meet the challenges posed by AI-generated content. Finally, instead of creating a new law on personality rights for living and deceased persons, countries should focus on developing technological tools to label and identify AI-generated content to mitigate the risk of impersonation or misinformation.
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[1]https://www.deccanherald.com/india/tamil-nadu/spb-family-sends-legal-notice-to-producers-of-telugu-film-keedaa-cola-2898042
[2] ICC Development (International) Ltd. v. Arvee Enterprises, 2003 (26) PTC 245 (DEL)
[3]https://salazar.house.gov/media/press-releases/salazar-introduces-no-ai-fraud-act#:~:text=%E2%80%9CBy%20shielding%20individuals'%20images%20and,get%20these%20crucial%20protections%20passed.%E2%80%9D
[4]https://cdt.org/wp-content/uploads/2024/02/Coalition-Letter-NO-AI-Fraud-Act-_-NO-FAKES-Act-2.1.2024-.pdf
[5] Section 3(d), No AI FRAUD Bill
[6] https://www.eff.org/deeplinks/2024/01/no-ai-fraud-act-creates-way-more-problems-it-solves
[7] https://www.arl.org/blog/nofraudsnofakes/
[8] https://actonline.org/2024/03/06/the-no-ai-fraud-act-good-intentions-flawed-execution/
[9] https://www.eff.org/deeplinks/2024/01/no-ai-fraud-act-creates-way-more-problems-it-solves
[10] ICC Development (International) Ltd. v. Arvee Enterprises, 2003 (26) PTC 245 (DEL)
[11] Titan Industries Limited v. M/s Ramkumar Jewellers CS(OS) No. 2662/2011, Delhi High Court
[12] Anil Kapoor v. Simply Life India, CS(COMM) 652/2023 and I.A. 18237/2023-18243/2023, Delhi High Court
[13] Deepa Jayakumar v. A.L. Vijay, O.S.A.No.75 of 2020, Madras High Court
[14] Krishna Kishore Singh v. Sarla A Saraogi, IA 10551/2021 in CS(COMM) 187/2021, Delhi High Court