Digital personas in the age of AI: mapping the unfinished Indian project

Shweta Sahu
Shardul Amarchand Mangaldas & Co, Delhi

Vishal Hablani
Shardul Amarchand Mangaldas & Co, Delhi

Artificial intelligence (AI) has fundamentally altered the relationship between identity and technology. Advances in generative AI now make it possible to create highly realistic digital replicas of individuals, including their image, voice and likeness, without requiring their participation or even their knowledge. These digital personas are increasingly being deployed across entertainment, advertising, social media and other commercial contexts, creating new opportunities for innovation, while simultaneously raising legal questions concerning consent, ownership, commercial exploitation and the protection of identity. Existing legal frameworks, many of which were developed in an era when reproducing a person’s identity required their direct involvement, have struggled to respond to technologies capable of independently generating and monetising realistic digital replicas.

Policymakers, courts and industry stakeholders across jurisdictions have begun responding to these challenges through the adoption of a range of legal and regulatory approaches. This article examines India’s evolving legal framework governing digital personas and key lessons from the experience in the US. India presents an important case study because its courts have rapidly expanded personality rights jurisprudence, while regulators have simultaneously introduced measures governing AI-generated content. However, these developments largely focus on regulating synthetic content and addressing misuse after it has occurred, leaving broader questions concerning the ownership, control and commercial exploitation of digital personas substantially unanswered. The US, although itself lacking a comprehensive framework, has experimented with legislative reforms and industry-led initiatives that directly engage with issues of consent, commercial control and economic participation.

India’s evolving personality rights framework

In recent years, Indian courts have witnessed a growing number of disputes involving the unauthorised use of celebrity identities through AI-generated content. Prominent personalities, including Abhishek Bachchan,[1] Aishwarya Rai Bachchan,[2] Anil Kapoor[3] and Akshay Kumar,[4] have approached the courts seeking protection against unauthorised exploitation of their images, voices and other attributes of their identity. These disputes reflect a broader concern that advances in AI have made it possible to create realistic digital replicas capable of being commercially exploited without the participation, authorisation or even knowledge of the individual concerned. These developments threaten the economic value traditionally associated with celebrity identities, which has long been commercialised through endorsements, licensing arrangements, merchandising and other forms of authorised exploitation. As AI enables the creation of commercially valuable digital replicas, disputes increasingly concern not merely the unauthorised use of identity, but also the commercial exploitation of digital personas themselves.

Indian courts initially encountered personality rights through disputes involving unauthorised commercial association with celebrities and public figures. Over time, the jurisprudence has evolved from protecting reputation and goodwill to recognising identity itself as a commercially valuable asset.

One of the earliest instances of judicial recognition of this principle can be found in ICC Development (International) Ltd v Arvee Enterprises, 2003 SCC OnLine Del 2, where the Delhi High Court acknowledged that the right of publicity stems from the commercial value associated with an individual’s identity. The concept was further developed in DM Entertainment Pvt Ltd v Baby Gift House, 2010 SCC OnLine Del 4790, where the Delhi High Court restrained the unauthorised commercial use of the identity of singer Daler Mehndi. The decision marked an important shift from viewing identity merely as an aspect of reputation towards recognising its commercial significance.

This jurisprudence developed in a technological environment where the exploitation of celebrity identities ordinarily required some level of human participation. However, AI has disrupted this model. Generative AI systems can create realistic simulations of performances, voices and appearances without requiring any participation by the individual concerned. A celebrity who historically earned revenue through endorsements, licensing arrangements or public appearances may now find their likeness replicated and commercially exploited without their consent.

Recent decisions by Indian courts reflect that personality rights must evolve to address the technological methods of exploitation that were previously unimaginable. The courts have extended protection beyond traditional indicia, such as names and photographs, and have acknowledged that voice, likeness and other personality attributes may also require protection in the digital environment.[5] However, the growing frequency of such litigation reveals the limitations of relying exclusively on personality rights jurisprudence. Judicial remedies are inherently reactive. Protection is generally available only after an infringement has occurred, requiring the affected individual to identify the misuse and seek legal intervention. More fundamentally, personality rights jurisprudence determines whether unauthorised use is permissible, but offers limited guidance on the broader commercial framework governing AI-generated digital personas, including their ownership, licensing and monetisation.

India’s regulatory response: governing synthetic content

Unlike the aforementioned judicial developments, the regulatory response has focused principally on the creation and dissemination of AI-generated content through digital platforms, rather than on the commercial exploitation of the digital personas embedded within such content.

Advisories issued by the Ministry of Electronics and Information Technology (MeitY)

The government’s initial response emerged through advisories issued by MeitY in December 2023[6] and March 2024.[7] The December 2023 advisory primarily focused on enforcement of the due diligence and grievance redressal obligations prescribed under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (the ‘IT Rules’). Intermediaries were directed to clearly communicate prohibited categories of content to users, facilitate grievance reporting, address complaints within prescribed timelines and take measures against misinformation, impersonation and deepfakes.

The March 2024 advisory specifically addressed the use of generative AI systems by intermediaries. Platforms were advised to ensure that AI systems did not facilitate content prohibited under Rule 3(1)(b) of the IT Rules, inform users about the potential fallibility of AI-generated outputs and implement appropriate labelling mechanisms for under-tested AI systems. The advisory also contemplated the use of metadata, identifiers and labelling mechanisms to enable the identification of synthetic content capable of being used as misinformation or deepfakes.

Amendments to the IT Rules

A more significant development emerged with the notification of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2026.[8] Unlike the earlier MeitY advisories, which sought to address AI-generated content through existing intermediary obligations, the amendments establish a dedicated regulatory framework for ‘synthetically generated information’ (SGI). The amendments impose specific compliance obligations on intermediaries facilitating its creation or dissemination, including obligations relating to detection, labelling, traceability and platform accountability.

Viewed collectively, India’s regulatory response remains focused on the regulation of AI-generated content rather than the commercial exploitation of AI-generated digital personas. The relevant rules prescribe how synthetic content should be labelled, traced and moderated, but do not address ownership, licensing, commercial exploitation or the allocation of economic value generated through digital replication.

Lessons from the US

Unlike India, where regulatory efforts have largely focused on governing AI-generated content, the US has responded through legislative reform and industry self-regulation directed towards the commercial exploitation of AI-generated digital personas.

California: consent for the creation and use of digital replicas

Historically, performers routinely granted studios broad rights over their image, likeness and recorded performances. These agreements were negotiated in an environment where future performances ordinarily required the continued participation of the performer. However, studios can now use AI to generate entirely new performances without requiring the performer’s participation.

Against this backdrop, California enacted Assembly Bill 2602[9] in 2024. The legislation seeks to ensure that contractual consent to the creation and use of digital replicas is informed and specific. The underlying concern is that broadly drafted image-and-likeness clauses negotiated in a pre-AI environment may be used to justify forms of exploitation that were never contemplated by the parties. California’s response treats digital replicas primarily as a question of informed contractual consent. Rather than regulating AI-generated content generally, it focuses on ensuring that commercially valuable digital replicas cannot be created or exploited without clear authorisation from the performer.

California simultaneously addressed a distinct concern through Assembly Bill 1836.[10] The legislation specifically targets AI-generated digital replicas of deceased personalities. It permits legal action where a person’s likeness, voice or appearance is digitally recreated and used in a manner that falsely conveys that the deceased individual participated in or endorsed the performance.

Together, the two enactments reflect California’s attempt to address the risks posed by AI-generated replicas of both living performers and deceased personalities. However, the legislation remains targeted rather than comprehensive. It addresses specific forms of commercial exploitation involving living performers and deceased personalities but stops short of establishing a broader framework governing ownership, control and commercial exploitation of digital personas.

New York: digital personas as commercial property

In 2020, New York enacted Section 50-f[11] of the New York Civil Rights Law, introducing a post mortem right of publicity for deceased personalities and performers for a period of 40 years following death. The legislation permits successors-in-interest to seek injunctive and monetary relief against unauthorised commercial exploitation of protected identity attributes that are likely to mislead the public into believing that a deceased performer participated in or endorsed a performance. The statute, therefore, moves beyond preventing unauthorised use and addresses the broader question of who controls and economically benefits from a commercially valuable identity after death. In recognising posthumous publicity rights as proprietary interests capable of inheritance, it illustrates one possible legal model for treating digital identities as commercial assets.

SAG–AFTRA: digital replicas as a labour asset

The Screen Actors Guild–American Federation of Television and Radio Artists (SAG–AFTRA), the principal labour union representing performers in the US, approached the issue from a different perspective. During the 2023 Hollywood labour disputes, performers raised concerns that AI would permit studios to create and exploit digital replicas without corresponding economic participation by the performers themselves.

The collective bargaining agreement ultimately negotiated by SAG–AFTRA introduced a detailed framework governing digital replicas.[12] The agreement differentiates between replicas created during a performer’s engagement and replicas generated independently from existing recordings or source materials. In the former case, studios must obtain informed consent concerning the scope and intended use of the replica and provide compensation for authorised uses. In the latter case, where the replica is not tied to an ongoing employment relationship, the agreement imposes stricter consent requirements before the performer’s likeness, voice or performance may be digitally recreated. The framework, therefore, recognises that a performer’s digital persona is capable of generating continuing commercial value through AI. By linking consent with remuneration, it seeks to ensure that performers retain meaningful control over and participate in the economic benefits arising from the commercial exploitation of their digital replicas.

Considered together, these developments demonstrate that the US response extends beyond regulating AI-generated content itself. Instead, it addresses distinct aspects of the commercial exploitation of digital personas through mechanisms relating to consent, proprietary interests and economic participation. Although these interventions remain fragmented and sector specific, they illustrate legal tools that are presently absent from India’s predominantly content-centric regulatory framework.

India’s next step: regulating the commercial exploitation of digital personas

India has taken important steps towards addressing the challenges posed by generative AI. Judicial developments have expanded personality rights jurisprudence to recognise the commercial value of identity in the digital environment, while regulatory initiatives have introduced safeguards governing the dissemination of AI-generated content. These developments provide an important foundation, but they fail to appropriately address commercial exploitation of AI-generated digital personas.

The US experience demonstrates that these concerns may be addressed through legal mechanisms directed specifically at the commercial value of digital personas. California emphasises informed consent before the commercial exploitation of digital replicas. New York recognises commercially valuable identities as proprietary interests capable of posthumous control. SAG–AFTRA links AI-enabled exploitation with continuing economic participation by performers. While these approaches differ in their underlying rationale and scope, they collectively demonstrate that the regulation of AI-generated content need not be divorced from the regulation of commercially valuable digital identities.

As AI-generated digital personas become increasingly sophisticated and commercially valuable, India’s legal framework must evolve beyond regulating synthetic content alone. Future reforms should consider questions concerning ownership, licensing, transferability and commercial exploitation of digital personas, while ensuring that individuals retain meaningful control over the economic value generated through AI-enabled replication of their identities. Such a framework would complement India’s existing regulatory measures by addressing the commercial dimension of digital personas that current law largely leaves untouched.