The Commercialisation Of Identity: Post-Mortem Personality Rights Under Indian Trademark And Tort Law

Introduction

Can an algorithm inherit something that the law refuses to protect?

If the word “Jhakaas” is mentioned anywhere then you at once think of Anil Kapoor. A celebrities persona is especially important to them and has immense value attached to it. With the surge in artificial intelligence there has been a surge in a lot of voice cloning models. These models can imitate the voice of a celebrity to a tee. As a result of this there has been a violation of a lot of celebrities rights. This has resulted in a lot of ethical and legal discussions about the same. This can be seen through many cases such as Anil Kapoor v/s Simply India[1] and Arijit Singh v/s Codible Ventures.[2]

To protect their personality rights there has been a usage of John Doe orders or Ashok Kumar orders by a lot of celebrities in India however in India personality rights of a celebrity extinguish as soon as their death occurs. This is because they are not considered transmissible rights i.e. They cannot be transferred to the legal heirs or estate representatives after their death. This is because there is a noticeably big legal vacuum present in Indian laws that does not protect the personality rights of a celebrity after their death.

As of today, there is a critical gap in the intellectual property laws in India. India lacks a sui generis statutory postmortem right to publicity framework which then results in the courts stretching and using the existing rights such as Article 21 of the Constitution of India[3] and passing off laws.

The Emerging Crisis and Legal Vacuum

As can be seen above there is a lot of ambiguity surrounding whether personality rights will survive the individual’s death. In the case of Anil Kapoor v/s Simply Life India the Delhi high court said that the unauthorised usage of an actor’s name, voice, and image and especially his famous phrase “Jhakaas” was not allowed.[4] This same stance was also reinforced in the case of Arijit Singh v/s Codible Ventures where the court defended the distinctive voice style against the usage of AI. [5]As can be seen there is a legal barrier that Indian courts have consistently refused to grant personality rights to a person’s heir after their death. This can be seen through the lens of the the case laws of Deepa Jayakumar v/s A.L Vijay where the court said that the personality rights of the former Tamil Nadu chief minister ceased to exist upon her death.[6] Furthermore, in the case of Krishna Kishore Singh v. Sarla A. Saraogi (Sushant Singh Rajput Ruling) the Delhi high court held that the personality rights belong strictly to that individual. The court uses the phrase of “actio personalis mortimer cum persona” which means that a personal action dies with that person. [7]

Under Indian law tangible expressions are protected under sections 38B[8] and 57[9]. Heirs can legally stop the distortion of a deceased artist’s recorded performance, but they are completely powerless to stop a third party from commercially exploiting the deceased’s persona, name, or life story in a new creation such as an AI song. This results in a creation of a Postmortem wall.

The mentioned sections are passing off, and trademark do not cover are unsuited entirely for the above cases. The tort of passing off relies on three core pillars which are as follows: –

1. Goodwill
2. Misrepresentation and
3. Damages when occurred

AI voice imitations usually run outside of all these boundaries and therefore result in making the tort as ineffective in nature. Usually, AI voice imitations or deepfakes are deployed in unauthorised spaces or for non commercial usage which usually slips through the cracks of the boundaries of the common tort of passing off. The traditional rule of passing of relies on the fact that the consumer should be confused or be deceived by the AI generated content however in many of the scenarios it is very obvious that the content is AI generated however the personality rights of the celebrity are still injured as it is a direct injury to the personal dignity of a celebrity or even causes reputational harm to the celebrity. A lot of the times it is also used as fake merch where consumers are aware that it is fake however they still buy the merch and this therefore results in false endorsement using the AI generated content. Moreover, it is extremely hard to prove that there is damage to a business goodwill when a person’s persona is included as usually a celebrities personality rights or persona is diluted and this cannot compete with dilution of commercial goodwill.

If we look at the trademark law in India, we can conclude that this does not act like a proper remedy either because it has not been made while keeping in mind the AI generated content. Registered trademarks usually have fixed identifiers such as word marks or logos or distinct slogans they do not entirely protect a person’s vocal cadence micro expressions or conversational style. Although sound marks are recognised they are recognised in the case of commercial jingles or audio files, but they cannot protect thousands or millions of different variations of a person’s natural way of speaking. How an AI voice clone works is that it copies a person’s voice to generate a new speech or a completely new unrecorded speech which sometimes harms the dignity of the person. Therefor as mentioned before there is a noticeably big regulatory vacuum in the Indian laws as common tort law or the trademark law cannot be relied upon in its entirety.

There are also certain failures under Article 21[10] which is why it cannot be used as a protection. There are three major legal bottlenecks are as follows: –

1. The rights under Article 21[11] cannot be signed away by the celebrity
2. The celebrity cannot provide licenses for these rights to anyone because they are non commercial and personal in nature
3. And lastly the rights under Article 21[12] of the constitution of India evaporate the moment the individual passes away which results in the legal heirs being entirely defenceless against any unauthorised use of the personality rights postmortem.

There is also a very delicate balance that the courts must keep to differentiate between public discourse and commercial exploitation especially because Article 19 (1) (a).[13]

Comparative framework: Californias celebrity rights act and Continental civil laws

Around the work there are many jurisdictions that have developed laws with relation to post mortem rights. One views a celebrity’s identity as a financial commodity that needs protection and the other views it as an extension of human dignity or human rights of a person. Therefore, India has a vital roadmap to take inspiration from and make laws. One of those jurisdictions in California. California has the civil code which states that a deceased persons is inheritable in nature. Under the celebrities’ rights act which states that the posthumous right of a celebrity will survive for 70 years after their postmortem. This act enables the heirs to license, transfer and restrict the commercial usage of a celebrity’s name, voice signature etc. The code also has multiple carve outs that prevent this right from choking the rights of the others. The code exempts usage of the personas in works such as plays books or films and in the news or any public affairs or any instance of fair use. Under Californian law the right to publicity can be sold, assigned or licensed in the same manner as patents or copyrights. There is a clear chain of title i.e third parties who want to use the deceased person’s rights can easily execute legally enforceable licenses for the same.

Continental European systems also talk about posthumous protection of rights. In countries such as France and Germany view posthumous protection through the lens of fundamental human rights. In Germany such a right is protected by splitting it into two dimensions (a) financial and (b) moral. The rights are protected because distortion of a person’s life legacy is bound to their human dignity and therefore it cannot be freely sold or commercialised. Therefore, the family is given the rights, and they act as a custodian of the memory of the deceased and are allowed to act and step in to block any defamatory or gross usage of the deceased honour. These laws are grounded in Romanism traditions and they mainly look at the post mortem rights through a moral lens. Under German and French laws however these rights cannot be sold, assigned or transferred and are as a result strictly unalienable in nature. Heirs of the deceased do not act as the owners of the right but they act as guardians of the rights.

The Roadmap for India

Currently India uses a mixture of common tort law of passing off and the constitutional right to privacy under Article 21 of the Constitution of India.[14] The Supreme Court in the case of K.S Puttaswamy v/s Union of India stated that the right to privacy also includes control over identity[15] but Indian courts continue to follow “actio personalis moritur cum persona” which creates a lot of problems. The problems are as follows: –

1. After death of the celebrity when the families go to stop the unauthorised usage of the personality rights in unapproved biopics or unauthorised merchandise Indian courts have stuck to the fact that these rights extinguish upon death. This stance results in heirs being forced to take part in lengthy litigation and court proceedings and there are often inconsistent outcomes regarding the same.
2. A lot of the times AI companies do not know who to approach to get a legal license for usage of the right resulting in uncertainty and them ending up being on the other end of the lengthy litigation.

To solve this issue what India must do is not rely on piecemeal judicial cases and enact a statutory regime. The legal framework should be in such a manner that it balances both the Californian laws related to financial exploitation as well as the French and German laws related to human dignity.

What India can do is they can: –

1. Enact a sui generis right of publicity i.e a statute that is dedicated entirely to such rights that bypass the normal intellectual property rights.
2. They could also make amendments to the existing Intellectual Property laws. For example they could broaden the scope of section 2(m) of the Trademarks act to include a broader array of marks. They could also expand Section 38 of the Copyright act which talks about performers rights to include identity control.

The statute should have clear definitions and explicit carve outs so that it is balanced in nature. The statute should protect an individuals name, vocal signature etc and should also protect against biometric attributes such as unique mannerisms fingerprint scans etc.

However, safeguards should also be present such as there should be a post mortem duration of minimum 30 years to maximum 50 years and the legal heirs should before claiming anything under the statute prove that the persona of the deceased person was distinct in nature. Furthermore, there should be safe harbours that compliment Article 19 (1) (a) of the constitution of India. [16]

Conclusion

In my opinion we are at a very critical point with regards to AI cloning and India cannot rely solely on its fractured framework. India also cannot leave the governance of the same with ad hoc high court and Supreme Court judgements that are inconsistent in nature. The framework in India has a legal vacuum which leaves deceased celebrities unprotected from harm. Therefore, it is urgent that India enacts a sui generis framework that is balanced in nature and honours the rights of deceased celebrities while also protecting the rights provided under Article 19 (1) (a) of the constitution of India.[17]

Bibliography

Cases

India

1. Anil Kapoor v Simply Life India CS(COMM) 652/2023, 2023:DHC:6869
2. Arijit Singh v Codible Ventures LLP (2024) SCC OnLine Bom 2445
3. Deepa Jayakumar v AL Vijay (2021) SCC OnLine Mad 1159
4. Justice KS Puttaswamy (Retd) v Union of India (2017) 10 SCC 1
5. Krishna Kishore Singh v Sarla A Saraogi (2023) SCC OnLine Del 3998, 2023:DHC:4631

Legislation

India

1. Constitution of India 1950
2. Copyright Act 1957

United States

1. California Civil Code § 3344.1 (West 2021)

Journal Articles & Working Papers

1. Nimmer MB, ‘The Right of Publicity’ (1954) 19 Law & Contemp Probs 203
2. Prosser WL, ‘Privacy’ (1960) 48 Cal L Rev 383
3. Thakur R, ‘Tabloids Tango with the Tombstoned: A Jurisprudential Waltz through India’s Posthumous Media Landscape’ (2026) International Journal of Law and Legal Research https://www.ijllr.com/post/tabloids-tango-with-the-tombstoned-a-jurisprudential-waltz-through-india-s-posthumous-media-landsca accessed 6 September 2026

Websites & Professional Commentary

1. Lexology, ‘The Power of Anton Piller Orders in Protecting Copyrights’ (Lexology) https://www.lexology.com/library/detail.aspx?g=09412946-f230-4fc1-be52-2c794a3ed8c6 accessed 6 September 2026
2. SCC Online Blog, ‘India’s Evolving Personality Rights Law: Judicial Protection from AI-Driven Exploitation’ (SCC Online Blog, 5 December 2025) https://www.scconline.com/blog/post/2025/12/05/india-personality-rights-evolving-law-celebrity-protection/ accessed 6 September 2026
3. Vondran S, ‘Is a Deceased Celebrity’s Right of Publicity Descendible in California?’ (Vondran Legal, 5 January 2020) https://www.vondranlegal.com/is-a-deceased-celebritys-right-of-publicity-descendible-in-california accessed 6 September 2026

[1] Anil Kapoor v Simply Life India CS(COMM) 652/2023, 2023:DHC:6869

[2] Arijit Singh v Codible Ventures LLP (2024) SCC OnLine Bom 2445.

[3] Constitution of India 1950, art 21.

[4] Anil Kapoor (n 1)

[5]  Arijit Singh (n 2)

[6] Deepa Jayakumar v AL Vijay (2021) SCC OnLine Mad 1159

[7] Krishna Kishore Singh v Sarla A Saraogi (2023) SCC OnLine Del 3998, 2023:DHC:4631

[8] Copyright Act 1957, s 38B

[9] Copyright Act 1957, s 57.

[10] Constitution of India 1950, art 21.

[11] ibid

[12] ibid

[13] Constitution of India 1950, art 19(1)(a).

[14] Constitution of India 1950, art 21.

[15] Justice KS Puttaswamy (Retd) v Union of India (2017) 10 SCC 1.

[16] Constitution of India 1950, art 19(1)(a).

[17] Ibid