Are You Who You Say You Are? The Interplay of Generative AI and The Right of Publicity

As former Google CEO Eric Schmidt famously said, “from the dawn of civilization to 2003, five exabytes of data were created. The same amount was created in the last two days.”1 While Schmidt was referring to an event in 2010, with advancements in technology becoming more rapid than ever before, we are arguably living through some of the most exciting times known to humankind, with new kinds of technology shaping up to change every aspect of our lives. The new frontier is undoubtedly the development of artificial intelligence (“AI”) software. The increase of generative tools from products like ChatGPT, a chatbot trained by ‘Reinforcement Learning from Human Feedback2 by OpenAI, to DALLE, an image-to-text product offered by the same company, has permeated our lives. While this technological renaissance has been a fantastic tool to ease our everyday existence, several concerns have been raised regarding the popularity thereof and its responsible use.

For instance, Getty Images US Inc. (“Getty”) has filed a lawsuit in Delaware, USA against Stability AI Inc. (“Stability”), a company whose product offerings include an AI-based image generator that creates pictures based on user prompts, for misusing Getty’s stock photos to train its image generator.3 Getty is arguing that Stability used millions of Getty images to train its AI without acquiring the requisite IP licenses from Getty, thereby infringing Getty’s copyright in the images and unfairly competing with it.

Recently, French DJ David Guetta, at one of his concerts, played a remix featuring a familiar yet entirely new artist, Emin-AI-em. In an interview, he spoke about how the song came about, namely through the use of certain online AI generator tools. Guetta used websites that generate content and write music in the style of any singer-songwriter the user desires and used it to write a verse in the style of the rapper Eminem. Guetta then used another AI generator, which can fabricate the voice of any famous singer, and input the AI generated lyrics into this. The end product was a song that sounded so much like the actual artist Eminem that it is nearly impossible to distinguish between the two.

While Guetta’s use of this technology has certainly caught eyeballs, the existence of similar AI generator websites is not exactly news. Another music generator named drayk.it has been able to turn any theme into a song in the style and in the voice of the famous Canadian rapper Drake. Via the platform, a user can input an idea for any kind of song, and the website thereafter creates a record based on the prompt provided. Further, if the user doesn’t have a song idea to provide the generator, they can ‘roll the dice’ and have the website provide them with a prompt from its repository.4

The proliferation and popularity of AI generators, no doubt, signifies a new era of technology, however, questions have been raised about the legality and ethics of the usage of similar types of tools and products. One of the concerns is the use of certain attributes, the likeness and/or the vocal cadence of celebrities through generative AI products, its impact on the personality rights of celebrities, and whether this is tantamount to misrepresentation.

While the Indian jurisprudence on personality rights is still evolving, it is a right that has been recognised by our courts time and time again. The right of publicity has been found to be, “located with the individual’s right and autonomy to permit or not permit the commercial exploitation of his likeness or some attributes of his personality.”5 Recently, in the matter of Amitabh Bachchan vs. Rajat Nagi & Ors. (CS (COMM) 819 of 2022), the Delhi High Court granted an ex-parte ad-interim injunction restraining the Defendants from misusing the Plaintiff’s, “celebrity status for promoting their own activities, without his authorization or permission.” In this matter, the Plaintiff sought protection of his personality rights against certain frauds that were committed using his name, image, voice and attributes, including the famous Kaun Banega Crorepati lottery scam.

As the Delhi High Court has observed in the matter of Titan Industries Ltd. vs. M/S Ramkumar Jewellers (CS (OS) No. 2662 of 2011), “when the identity of a famous personality is used in advertising without their permission, the complaint is not that no one should not commercialize their identity but that the right to control when, where and how their identity is used should vest with the famous personality. The right to control commercial use of human identity is the right to publicity.” In this matter, the Plaintiff is the owner of the brand name ‘Tanishq’ and had launched an advertising campaign featuring Mr. Amitabh Bachchan and Mrs. Jaya Bachchan, and the Defendant was also a jeweller who had erected hoardings that were replicas of the Plaintiff’s advertising campaign with Mr. and Mrs. Bachchan’s images. The Court noted the following elements to determine liability for the infringement of the right of publicity: (i) validity, whereby the Plaintiff must own an enforceable right in the identity of a person; and (ii) identifiability: whereby, the celebrity must be identifiable from Defendant’s unauthorized use thereof. The Court further noted that, “if the plaintiff is very well known and widely recognized celebrity a simple comparison of the Defendant’s use and the Plaintiff’s identifying features may itself be sufficient to create a strong inference of identifiability. This is termed as unaided identification.” Thus, the right to control the commercial use of one’s identity, provided that the attributes belong to “a person who many people talk about or know about,” is a protected right.

Generative AI has certainly become a tool through which, combined with human imagination and the ability to create any kind of art we can think of, we are creating more content faster than ever before. Yet, the use of certain attributes (including their voice, which in many cases may be integral to their celebrity) of famous personalities via these tools, and the impact it has on the rights of these individuals has been highly debated recently. While David Guetta has made it clear that his song will not be released commercially, the question still remains: was his utilization of Eminem’s cadence, voice, and writing style an example of fair use of Eminem’s identifiability? We must note that, “no one is free to trade on another’s name or appearance and claim immunity because what he is using is similar to but not identical with the original.”6 Therefore, the ease of use of these tools must be combined with caution, so as to not misappropriate or infringe upon the rights and goodwill of others.

1 Carlson, Benjamin, Quote of the Day: Google CEO Compares Data Across Millennia to the Nearest Significant Figure, The Atlantic, July 3, 2010. Available at: https://www.theatlantic.com/technology/archive/2010/07/quote-of-the-day-google-ceo-compares-data-across-millennia/344989/.

2 OpenAI, Introducing ChatGPT, OpenAI.com, November 30, 2022. Available at: https://openai.com/blog/chatgpt.

3 Getty Images (US) Inc v. Stability AI Inc, U.S. District Court for the District of Delaware, No. 1:23-cv-00135.

4 Espinoza, Joshua, AI Generator Can Turn Any Subject Into a Drake-Like Song, Complex, January 29, 2023. Available at: https://www.complex.com/music/ai-drake-song-generator.

5 D.M. Entertainment Private Limited vs. Baby Gift House and Ors. (CS (OS) 893 of 2002).

6 Onassis vs Christian Dior – New York Inc. 472 NYS 2d 261, as quoted in D.M. Entertainment Private Limited (Supra).