Authors:
Khyati Miteshchandra Patel
Shraddha Uba
FROM SELFIES TO STATUTES
Who is an influencer, one must ask. Well, as the name itself suggests, an influencer is a person who holds the power to influence. Given the gravity of the responsibility and trust involved, it has oftentimes been found to be misused by the very people handling it or by those surrounding them, i.e., third parties acting in their name. and it’s the rise in social media culture that has resulted in the birth of influencers in such large numbers.
Social Media platforms are no longer a medium for casual interaction. Today, it has moved far beyond that casual role and has now become an integral part of daily life for children, teenagers, adults, to even older age groups. They use it not only for communication but for information, entertainment, and lifestyle choices. Social media tries to make an inevitable influence on the decision of users, which is also stronger than the traditional forms of India. What was once seen as a casual sharing platform has now become an indispensable part of the modern lifestyle.
In recent times, influencers have evolved from being casual creators to becoming influential figures on the global level social media marketplace. The content which they create reaches millions instantly, through which the population around the world makes informed choices. Their personal identity being a face, name, style or expression acquires market value which makes them more than content creators.They become brand themselves in their own right with their digital persona functioning as a source of connection and a form of commerce too.Reports estimate that the influencer marketing economy crossed $21 billion worldwide in the year 2023, where India comes out to be one of the fastest-growing markets.
This rapid growth, no doubt is a contribution to the economy, but also brings a bag full of legal challenges.This area has unanswered legal questions like; can influencers claim enforceable rights over their image and persona? Should their phrases, hashtags or names for that matter receive trademark protection? What responsibilities do they carry in ensuring transparency in terms of endorsements? And subsequently how should law proceed to answer threats such as unauthorized commercial use or AI-generated imitations? These questions indicate that it is need of an hour to have a legal framework that can truly balance out the protection of influencers and the audience with the innovation of digital culture.
WHOSE FACE IS IT ANYWAY?
In the era of increasing use and commercialisation in social media platforms, an influencer’s identity be it their name, their voice, their face, or their way of expression becomes a mode of earning in form of commercialisation and becomes a brand in itself.This personal details of the influencer can generate revenue by way of endorsements, content details and partnership. For these reasons, protecting the commercial use of identity becomes inevitable.
In Indian context specifically, there is no legal framework which addresses image or personality rights.When faced with such complex legal issues, the court instead use the principles of privacy, intellectual property, and constitutional law.Personality rights or the right to publicity typically seeks to protect an individual’s identity and reputation, despite of there being no legal framework being framed for these purposes.Usually, court after identifying the gaps have time and again attempted to fill this legal gap using trademark, passing-off and copyright law principles whereby they also refer to constitutional law provisions, specifically, Article 21 which guarantees right to privacy. In the landmark case of ICC Development (international) Ltd. Vs. Arvee Enterprises, the Delhi High Court has held that the right of publicity comes from the very right of privacy and it is applicable to individuals and not on events or organisers for that matter.And the courts have subsequently rejected attempts made by non-human entities to claim this right.The court has further clarified that personality rights reside in an individual and not in the event or the organizers.
Despite the efforts made to fill in the gaps, the framework still remains incomplete. Influencers continue to face risks such as unauthorized use of their image, misuse of brand or AI generated impersonations, which they have to face on a daily basis while using such social media platforms.Enforcement of the legal framework without codification is unpredictable and inconsistent.A structured legal framework which addressed this concern is need of an hour to assure that the influencers can protect and legally commercialise their persona on the social platforms.
WHEN A NAME BECOMES A BRAND
Influencers today are no more the persona who are just limited to promote products but they have themselves become a brand name in themselves.Their name, hashtag, taglines, also carries a huge commercial value, because of which the companies’ objective of profit aligns with them and they seek to join hands with them, but there remains risk of misuse.Multiple times it happens on the social media platform that influencer’s name or image is used without their due permission which mislead the promotions, which not only damages their reputation but also confuses audiences with the same respect. In order to overcome this lacuna, influencers these days are preferring trademark law to safeguard themselves. Registering their names, phrases or other identifiers as trademarks helps them to stop others from misusing their identity and ensures that they are safeguarded with the same respect.
There are multiple global examples which substantiates the same.Kylie Jenner, for instance has trademark her name “kylie” for use in cosmetics and merchandise.This action was opposed by singer Kylie Minogue who argued that the mark being registered would cause confusion in the audience and users as she was already widely known for that name.This case reflected how even something as personal as name can become a contesting legal right when the same is carrying a commercial weight.Similarly, the Kardashian family has had to fight legally, when others attempted commercially misuse their name and taglines.These cases around the globe serve as evidence as to why trademarks are so important in the influencer era as they allow influencers control their identity and prevent commercial and other kind of misuse or exploitation in a fast-moving digital social media market.
LAWS WITHOUT BORDERS, INFLUENCERS WITHOUT LIMITS
Influencer economy is inherently borderless, and even more so in the era of internet. Now, a single Instagram post by an influencer in Jaipur can reach millions of followers around the Globe within seconds. This global outreach is a commercial dreamand simultaneously a legal nightmare when it comes to fixing jurisdictions. The prime questions being- whose law applies, and under whose enforcement?
Influencers operate in a digital space where content, audience and commercials travel national boundaries however, Intellectual Property laws- whether trademark, copyright or publicity rights remain territorialthereby creatinga fiction. But without its harmonisation, the influencers risk violating laws of countries that they have never even visited.Different jurisdictions have different threshold of protection leading to inconsistent obligations like the US and EU codify image rights but not India.The challenges involved here relates to firstly, the jurisdiction i.e., does a US court have jurisdiction over an Indian influencer, possibly if the content had a substantial impact in US market. Secondly, even if the US court awards damages, its enforcement in India will depend on the principles of reciprocity and domestic recognition of foreign degrees. Thirdly, financial constraints as some creators may find it difficult to defend themselves in foreign litigation and the brands may use IP law to silence the competition. Even though copyrights and trademarks are territory-specific monopolies, influencer activity is territory-agnostic and this mismatch is the heart of enforcement quandaries.
AI GENERATED INFLUENCERS, DEEPFAKES AND DIGITAL IDENTITIES
Technology has led to an emergenceof new IP riddles like AI generated influencers, Deepfakes and Digital Identities. Virtual influencers like Lil Miquela from USA or Imma from Japanhave a following in millions and thereby attract lucrative brand deals. But who exactly is the owner of their persona? Is it the tech company that built it? Or the programmer who programmed it? Or is it the brand licencing them? The existing laws struggle to answer whether AI-generated “faces” and personalities can be protected like the human image rights.
Similarly, AI tools can also superimpose an influencer’s face or voice to generate advertisements or promotional videos without consent. this also misleads the consumers and Indian law has no statutory remedy against deepfakes and the ones existing rely upon privacy rights and torts. It’s often observed that influencers trademark their names, hashtags, logos or catchphrases to protect their “digital image.” But what about the avatars and emojis and 3DD semblance and can they be treated as IP? The courts while debating this issue have begun to accept that the digital doubles should enjoy the same protection as physical likeness. However, it has become an accepted fact that the traditional frameworks designed for protecting logos, films and books won’t suffice for something a fluid as digital identity.
CATCHING UP WITH THE CLICKS: LEGAL REFORMS AND GLOBAL PARTICIPATION
Influencers today blur the difference between personhood and brand identity. The famous example of Kylie Jenner isn’t just an individual but a registers global trademark. Another example is CarryMinati, in India. There is a need for the law to realise dual roles of influencers as both the creators and commercial identities. It should also simplify trademark registration for personal brands while ensuring a proper balance between providing protection and preventing monopolization.
At the same time, Indialags behind in implementing a statutory framework to protect image or publicity rights and instead solely relies upon judicial interpretations which often leaves the influencers and celebrities exposed to unauthorised exploitation of their persona. Whereby, a codified regime would help to clearly define constituents of “image rights” and “digital semblance” and penalise unauthorized commercial use of an influencers name, face, voice, etc.There’s a need for stricter enforcement of advertising rules and regulations mandating disclosure of sponsored content and its proper compliance.