Publicity, or personality, rights concerns the entitlements individuals possess to protect their images from unauthorised usage. While the majority of cases typically involve celebrities, it is crucial to scrutinise these rights in the context of ‘non-celebrities’, particularly considering the pervasive influence of advanced technology dominating our daily lives. The surge in social media platforms has granted individuals unparalleled opportunities to share their lives online, accompanied by advanced algorithms and artificial intelligence facilitating the swift dissemination and manipulation of images. This technological landscape exposes individuals to potential infringements on their rights. Despite implementing stringent privacy settings on social media platforms, personal information and images can swiftly reach a vast audience without consent, potentially resulting in unauthorised use and exploitation. This contemporary challenge underscores the need for legal protection and heightened awareness among users. This article aims to conduct a comparative analysis of the extent of these rights across various jurisdictions.

Public Rights: An Overview

Traditionally, the implications of publicity rights have held substantial weight for celebrities, who heavily rely on their image and likeness for endorsements, advertising, and commercial endeavours. However, the landscape is evolving with the prevalence and dominance of social media platforms and the recent rise of advanced technology, challenging the extent of protection and prompting inquiries into whether these rights should extend to non-celebrities. This new wave and emergence of online creators, where “ordinary” individuals cultivate personal brands and capitalise on their online presence, emphasises the necessity to secure personality rights for those outside the traditional “celebrity” realm.

Legal Recognition Varies by Jurisdiction

Legal recognition of publicity rights exhibits variations across jurisdictions, each offering distinct levels of protection and legal remedies. In the United States, these rights are acknowledged as property rights, granting individuals the exclusive right to regulate the commercial use of their identity. However, the absence of federal recognition of these rights results in states interpreting the legal framework differently, contributing to a need for more harmonisation in safeguarding publicity rights across the country.

In the United Kingdom, statutory rights of publicity are absent, compelling celebrities and individuals to rely on the tort of passing off for protection against the unauthorised use of their likeness. In India, courts view publicity rights as an extension of privacy rights, influenced by judicial interpretation within the broader scope of intellectual property, recognising an individual’s right to control the commercial use of their image. Similarly, China has statutory provisions for personality rights, providing individuals with legal recourse against the unauthorised exploitation of their likeness.

Celebrities vs. Non-Celebrities

Depending on the jurisdiction, enforcing publicity rights may pose challenges for non-celebrities, due to their status, making it inherently difficult for them to safeguard against the unauthorised use of their image and likeness.

The Challenge of Non-Celebrity Protection

In the United States, the Vanna White case set a precedent for defining the scope of personality rights as a remedy against the unauthorised use of one’s image.

The pivotal factor of ‘economic value’ plays an essential role in distinguishing publicity rights for celebrities from non-celebrities, underscoring the challenges faced by the latter in enforcing their publicity rights. “Some argue that non-celebrities may only have grounds for privacy claims, particularly when addressing non-economic related to the use of their identities.” [Mark P. McKenna, ‘The Right of Publicity and Autonomous Self-Definition’ (2005-2006) 67 U. Pitt. L. Rev. 225.]

The United Kingdom does not officially acknowledge publicity rights, relying instead on the tort of passing off, where an individual can pursue legal action for a misrepresented goodwill. However, an ordinary person may not possess sufficient goodwill to successfully bring an action of passing off. Similarly, in India, the judgment in T-Series v. Dream Realities showcases the court’s reluctance to extend personality rights protections to non-celebrities, underscoring the necessity for a more comprehensive legal framework explicitly acknowledging and safeguarding the scope of publicity rights.

The 2020 Civil Code of the People’s Republic of China codifies explicit protection for an individual’s personality rights. Book 4 of the Civil Code provides a clear scope of publicity rights, adopting an international standardised terminology to enforce a harmonised approach.

While China may lack extensive case law on personality rights, the nation’s ideological emphasis on collectivism and societal harmony indicates the application of these provisions to non-celebrities. [Lauren Norvell, ‘Being Blonde in China and How to Protect My Right of Publicity Abroad’ (2021) 19 Santa Clara J Int’l L 46.]

Although cases involving celebrities generally receive significant attention, the fundamental principles governing these rights extend universally. This ensures that individuals, regardless of their status, are entitled to legal protections against misuse of their likeness. The degree of protection may vary based on factors such as public visibility, distinctiveness and other specific circumstances of the image use. Nonetheless, non-celebrities can leverage these legal avenues to safeguard their image rights in commercial contexts. As China’s legal framework evolves, acknowledging and defending these rights for non-celebrities becomes essential for maintaining societal harmony and upholding individual dignity.

Publicity Rights in the New Digital Era

Over the past decade, the significant dominance of social media has catalysed the development and advancement of new AI technologies, including deepfake technology designed to recreate various environments authentically. However, the unregulated nature of this technology challenges the comprehensive protection of publicity and privacy rights. Recently, Meta (formerly Facebook) introduced ‘AI Personas’ that leverage the likeness of celebrities such as Snoop Dogg and Kendall Jenner to humanise chatbot characters.

The assumption that Meta has invested substantial resources to secure the rights associated with these celebrities underscores the commercial value associated with the celebrities to control their likeness. Nevertheless, the lack of direct affiliation between Meta’s AI characters and the celebrities they portray emphasises and accentuates the ethical and legal concerns surrounding personality rights. 

Deepfake Technology: A Threat to Identity

Deepfake technology, propelled by artificial intelligence, has emerged as a potent tool for crafting deceptively realistic fake videos and audio recordings. Initially employed for unauthorised purposes such as pornographic content and political deception, this technology raises profound concerns for both publicity rights and privacy rights. This unauthorised ability to replicate voices and faces may be exploited for nefarious and malicious purposes, including harassment or blackmail, further violating individuals’ privacy and dignity. 

The scandals involving Taylor Swift and Rashmika Mandanna, victims of explicit deepfake content highlight the vulnerability faced by women, particularly in the context of such malicious exploitation. Like Swift, women are disproportionately targeted by deepfake pornography, confronting not only the violation of their privacy but also the potential for reputational damage and emotional trauma. While celebrities may possess the means and resources to pursue legal action against the misuse of their likeness, non-celebrities may find it challenging to defend their personality rights. Despite efforts to seek justice, including reporting to law enforcement, non-celebrities victims often encounter insufficient recourse due to the absence of specific legislation addressing deep fake pornography. 

Legislative Efforts to Combat Deepfakes

Following these scandals, recent legislative initiatives such as the NO AI FRAUD Act proposed by the US Congress aim to establish federal protections against AI abuse and uphold individuals’ rights. In India, the Rashimika Mandanna caseemphasised the importance of addressing the regulation of such technology. While such efforts are commendable, they underscore the need for comprehensive legal frameworks to address the potential threats posed by deepfake technology globally. Surprisingly, China leads with AI content regulation, discussing provisions since 2022 to prevent risks from these emerging technologies, aligning with the nation’s values of promoting human endeavours for the public interest.

As lawmakers, tech companies, and society at large grapple with the complexities of regulating deepfake technology, victims endure ongoing devastating consequences, underscoring the urgency for society to confront and address the systemic inequalities and vulnerabilities perpetuating such harmful practices. The rapid evolution of deepfake technology stresses the imperative need to establish clear legal frameworks that safeguard against misuse and protect the publicity rights of all individuals, irrespective of their status.

In conclusion, nations have measures established to guard against the unauthorised use of an individual’s image. Nevertheless, the absence of international harmonisation poses a challenge for non-celebrities seeking to safeguard their image. The rapid development of AI technology and the proliferation of hyper-realistic content emphasises the critical need for clear and well-defined regulations that strike a balance between technological innovation and the preservation of human identity. Such regulations are essential to ensure the responsible utilisation of individual identity in the evolving landscape of the digital age.