Generative AI has shown that it can bring the dead back to life digitally. This has led to situations in which the identity of a deceased person has been used and misused. Significant questions have arisen about who gets to control the identity of the deceased, to what extent, and the manner in which it is utilised. In that light, in this submission for the SpicyIP–Jhana Blogpost Writing Competition 2025, Krisha Tiya Sahay argues that the identity of a deceased is a quasi-property and must be inheritable by the deceased’s estate, which should have the limited power to commercialise the deceased’s identity while also ensuring that the deceased’s identity is not distorted or misused. Krisha is a 2nd year student at RGNUL, Patiala, with a keen interest in Intellectual Property Law, Consumer Protection Law and Constitutional Theory.
Rest in IP: Posthumous Personality Rights in the Age of Deepfakes
By Krisha Tiya Sahay
With the advancements in Artificial Intelligence (AI), synthetic media—colloquially known as “deepfakes”— has materialised from a speculative science fiction trope into a routine feature of our digital life. These realistic digital forgeries that can mimic a person’s voice and likeness. We have witnessed the non-consensual recreation of Anthony Bourdain’s voice, the holographic resurrection of Tupac Shakur, and most recently, AI-generated recreations Kishore Kumar and Sidhu Moosewala.
The technology is both vast and accessible, from platforms offering “digital immortality” for the bereaved (see here) to apps allowing instant AI generated videos (see here). With such tools at our fingertips, the risks are substantial; synthetic media can create false impressions, placing lives and reputations at stake. These risks are acute posthumously, where individuals cannot contest the narrative, and the existing legal framework remains ill-equipped.
The Dead Are Talking. The Law Isn’t.
Despite the persistence of identity beyond death, the existing legal framework in India remains tethered to the living, leaving posthumous personality rights that encompass both dignitary and economic dimensions, inadequately addressed. The Indian judiciary has developed a robust jurisprudence protecting the economically oriented subset of these rights namely, the publicity rights of public figures during their lifetimes, which entitle them to control and profit from the commercial exploitation of their persona. This approach has been extended to protection against contemporary harms, including deepfakes, with courts intervening to restrain the unauthorised digital misuse of the identities of figures including Akshay Kumar, Sunil Shetty, and Shilpa Shetty Kundra, among others (see here for a detailed discussion on protection offered by courts against synthetic media). However, this protection has been consistently circumscribed by the individual’s life. As reaffirmed in Krishna Kishore Singh v. Sarla A. Saraogi, personality rights do not survive the death of the individual, a position consistent with precedent but one that forecloses posthumous enforcement of identity-related interests by identifiable representatives such as estate or legal heirs, who would otherwise be best placed to challenge any deceptive or exploitative distortions of the deceased’s persona.
By contrast, the US has adopted a markedly different approach. In Martin Luther King v. American Heritage Products Inc, the Supreme Court of Georgia ruled that the right to publicity is inheritable. Over 25 US states now extend publicity rights beyond death for 10 to 100 years, equating personality rights to a transferable property right (see here). Most recently, NewYork’s 2020 legislation introduced post-mortem publicity rights lasting forty years after the death of a public figure. What sets this statute apart is that it expressly regulates deceptive “digital replicas” of deceased individuals, thereby anticipating the unique risks posed by AI technology.
Denmark goes further, perhaps too far, in its approach to regulating deepfakes. Under a proposed 2025 amendment to the Danish Copyright Act, identity rights are sought to be treated as copyrightable assets protected both during an individual’s lifetime and for fifty years after, applicable to all individuals, not just public figures. There has been widespread discussion about this proposed amendment (see here and here), particularly regarding the risk of over-protection, chilling effect on free speech, and the dissonance of assigning property-equivalent rights over biological traits under a regime intended to incentivise innovation.
In this context, India stands at a critical juncture; the realities of contemporary technologies make it increasingly difficult to deny that personality interests can, and often do, persist beyond death. This is not to suggest that the deceased retain any conscious stake in their own image. Rather, it is to acknowledge that the commercial, emotional and reputational significance of a person’s identity outlives them and its misuse produces tangible harms: economic loss to the estate, distress to close relatives and distortion of public discourse (see here for an instance of fabricated political endorsement by Martin Luther King Jr). This economic loss occurs as a deceased person’s likeness possesses market value as a social fact, fame generates consumer attention, and that capacity does not automatically extinguish at death. The question, therefore, is not whether such value exists, but who should be entitled to capture. Vesting this entitlement in heirs finds support in the following considerations: firstly, when third parties commercially exploit a deceased person’s likeness, they capture value accrued through the deceased’s life and labour, permitting strangers to appropriate that value without compensation results in unjust enrichment. Secondly, designating heirs as the identifiable parties with standing ensures orderly enforcement and prevents market confusion. The law need not assume a right to exclude, it only needs to recognise that it is fairer for the benefits of a person’s legacy to flow to their successors than to unrelated third parties seeking a free ride.
The challenge lies in determining the character and limits of protection. Should it be a property entitlement surviving death, a tort claim extinguishing with the individual, or something in between? This post argues for a quasi-property right: one that does not grant heirs exclusive dominion but a limited entitlement to sue against unauthorised commercial exploitation. As recognised in DM Entertainment, such a right protects against unfair commercial gain rather than conferring absolute control, allowing post-mortem enforcement while safeguarding non-commercial and creative uses.
Guardrails not Gags: A Quasi-Property Approach
If India is to meaningfully address post mortem publicity rights, the answer does not lie at either extremes. On one hand is the current Indian position of non-recognition based on “actio personalis moritur cum persona” or personal cause of action dies with the parties and Section 306 of the Indian Succession Act barring inheritance of claims for “personal injuries.” On the other is the risk of absolute propertisation, as is feared by Denmark’s proposed model.
This post argues for a middle path through the recognition of personality rights as a quasi-property interest: one that is inheritable in a limited sense, enforceable against clearly defined harms, and balanced against constitutional guarantees of free speech. This framework overcomes the objection posed by Section 306 as the claim here is not for a personal injury but for the extension of a proprietary interest already recognised during life (see DM Entertainment). The personal injury bar does not apply where the estate has been tangibly affected (see here) and the proposed framework, grounded in preventing unjust enrichment, falls within this exception.
Support for such an approach can be found in foreign jurisdictions. For instance, French law protects personality rights without letting identity collapse into absolute property. Operating as a dualist model, this right is protected both as a dignitary interest and where applicable, as a patrimonial interest enforceable for 20 years following death (see here). This has been clearly illustrated in the Raimu decision, where the court held that the patrimonial aspect of an individual’s identity survives their death and accordingly awarded damages (see here). Pertinently, this protection is not absolute; it is balanced by exceptions for parody, public interest, and expressive use, ensuring that the protective regime does not turn into a licensing regime.
This restrained recognition closely aligns with the quasi-property interest proposed here. In fact, the foundations for such an approach have already been laid in Indian jurisprudence, endorsing a quasi-property conception during the individual’s lifetime. In DM Entertainment, the Court recognised personality rights as a “quasi-property” interest capable of commercial exploitation, clarifying that the right has both personal and property dimensions (see here). This foundation can be extended, with safeguards, beyond death. Building on this, the proposed framework treats the commercial value of a persona as an intangible asset that survives death and passes to heirs.
A quasi-property framework offers a balanced alternative. Rather than granting heirs a general veto over all depictions, it would require them to prove that the unauthorised use constitutes commercial exploitation, that is, the use of a deceased person’s likeness in any revenue-generating context that appropriates the economic value of their persona. Most importantly, it ensures that posthumous personality rights are used not as a tool of perpetual monetisation, but as a targeted mechanism of preventing financial harm to the estate due to unauthorised commercial exploitation, while preserving space for free speech and creative expression that do not appropriate the economic value of the deceased’s persona.
Despite this balanced approach, questions still persist; can heirs meaningfully consent to the posthumous use of a person’s likeness, particularly where such use simulates behaviours the individual never actually expressed? Equally unsettled is the problem of non-commercial deepfakes, which cause profound emotional and reputational harm despite resulting in no monetary injury, thus remaining outside the protection offered by law. This is best captured by the response of Robin Williams’ daughter, who expressed discomfort with fan-created digital recreations of her father bringing him back in ways he had not consented to (see here). Platforms like OpenAI’s Sora further add complications by enabling the creation of synthetic media without commercial transactions, which nevertheless retain the capacity to distort legacy. In an era where the dead can be convincingly made to speak, the question is not if the law should act, but where it must draw the line.