INTRODUCTION
AI stopped being just a productivity tool a while ago. Somewhere along the way it started reaching into something far more personal — a person’s voice, their face, the small gestures and speech patterns that make them recognisable. People have started calling this “digital resurrection”: using AI to recreate deceased individuals, whether for a film, a classroom, an advertisement, or simply because someone wanted to talk to a version of a parent who had passed. As recreations of actors, musicians, and politicians have shown up more often, the questions around reviving someone’s identity after death have become harder to avoid.
There is genuine value here — in film, education, and preserving cultural memory. But it is worth asking some uncomfortable questions too. Can a company profit from a dead person’s likeness without the family ever agreeing to it? Do personality rights survive the person who held them? Who is actually in charge of someone’s digital identity once that person can no longer speak for themselves? A number of jurisdictions already have statutes protecting posthumous publicity rights. India does not. This piece looks at what Indian law currently offers, where it falls short, and why the gap probably needs Parliament to close it rather than the courts.
WHAT COUNTS AS A DIGITAL REPLICA
An AI-generated digital replica is, at its core, a rebuilt version of a person — assembled through machine learning, generative models, voice synthesis, and facial reconstruction. Feed a system enough footage, audio, and public data, and it can start reproducing not just what someone looked like, but how they spoke and carried themselves. This has already gone commercial: deceased actors have been digitally recreated for new films, advertisers have used AI-cloned voices of musicians who are no longer alive, and chatbot products now exist specifically to simulate conversations with a dead relative. The line between innovative use of technology and exploiting someone who cannot object has blurred fast, and Indian law has not kept pace.
THE EXISTING INDIAN LEGAL FRAMEWORK
PERSONALITY RIGHTS
There is no Indian statute that spells out personality rights directly, but courts have acknowledged, in practice, that a person’s identity carries commercial value. The Delhi High Court said as much in ICC Development (International) Ltd v Arvee Enterprises, holding that the right of publicity flows from personality itself and protects against unauthorised commercial exploitation of one’s identity.[1] DM Entertainment Pvt Ltd v Baby Gift House went a step further, restraining the unauthorised commercial use of singer Daler Mehndi’s persona.[2] Both cases, however, concern living people. Whether that protection survives death is a question Indian courts have not yet answered — and that silence is exactly where AI-generated replicas of the deceased currently sit.
RIGHT TO PRIVACY
In Justice K.S. Puttaswamy (Retd.) v Union of India, the Supreme Court held that privacy is a fundamental right under Article 21,[3] covering informational privacy, bodily autonomy, and decisional autonomy.[4] That right, however, is generally understood to end at death. A company recreating a deceased person’s likeness may therefore not, strictly speaking, be violating any constitutional privacy right — because there is arguably no one left to hold that right. That is the gap, plainly put.
THE DIGITAL PERSONAL DATA PROTECTION ACT, 2023
The DPDP Act builds its structure around consent — to process someone’s personal data, one needs their permission.[5] That works for the living, but the Act is silent on data belonging to people who have already died. In theory, an AI developer could use a deceased person’s photographs, videos, voice recordings, and social media posts to build a replica without technically breaking the law — a gap that becomes especially uncomfortable once that replica is monetised.
COPYRIGHT PROTECTION
The Copyright Act, 1957 protects specific works — literary, artistic, dramatic, musical, and cinematographic.[6] It does not protect a face, a voice, or a personality as such. A recorded speech may be protected; the underlying voice and mannerisms are not. A replica built from publicly available material can therefore often bypass copyright law entirely, leaving families with little to stand on.
THE REGULATORY VACUUM
Put these pieces together and a few problems stand out. There is no statutory recognition of posthumous personality rights in India, so unless a copyright or trademark is infringed, commercially exploiting a deceased person through AI is, functionally, unregulated. Consent is unresolved too — a person cannot meaningfully agree in advance to a recreation that does not yet exist, and there is no legal mechanism for advance digital directives, nor clarity on whether family members can consent on the deceased’s behalf. Misrepresentation is a further risk: a digitally recreated person can be made to endorse a product, a politician, or an opinion they never held in life, and this is no longer hypothetical. Finally, the commercial incentive keeps growing — a studio can feature a deceased actor in a new film without negotiating with the heirs, and a brand can use a cloned voice in an advertisement while sidestepping the intellectual property obligations that would otherwise apply.
COMPARATIVE INTERNATIONAL APPROACHES
Other jurisdictions have already addressed this. California recognises post-mortem publicity rights under Section 3344.1 of its Civil Code, letting heirs’ control commercial use of a deceased celebrity’s identity for seventy years after death,[7] and several other US states treat publicity rights as inheritable, folding them into the deceased’s estate. The EU’s AI Act takes a different approach — it is concerned with high-risk AI systems generally, not posthumous rights specifically — but it does require disclosure where AI-generated content could mislead people.[8] What these examples share is a basic premise: AI-generated identity needs its own rules rather than being patched onto existing intellectual property law.
THE NEED FOR LEGISLATIVE REFORM
Given how quickly India’s AI sector is growing, this cannot wait for a slow accumulation of case law. Parliament could legislate posthumous personality rights directly, letting heirs control commercial use of a person’s identity for a defined period after death, broadly along the lines of California’s model. Individuals should be able to leave behind a legally binding digital identity directive specifying whether AI replicas of them may be created after death and who may authorise it. AI developers ought to be required to obtain informed consent before commercially reproducing a person’s likeness, voice, or personality, with civil liability and regulatory penalties for failing to do so. Any AI-generated replica used publicly should carry a mandatory disclosure that it is artificial, since transparency does a great deal to preserve public trust. Finally, the DPDP Act, or whatever legislation follows it, should directly address posthumous personal data — who owns it, how it may be processed, and what say a family has in the matter.
CONCLUSION
AI-generated digital replicas sit at an odd intersection — genuinely useful in education, entertainment, and cultural preservation, yet capable of causing real harm to a person’s dignity and identity in ways the law was never built to anticipate. Indian law currently offers only a patchwork of privacy law, copyright law, personality rights doctrine, and data protection legislation, none of which was written with posthumous digital replicas in mind. That leaves both families and AI developers guessing. Waiting for courts to work this out case by case will not close the gap quickly enough. Parliament needs to legislate — recognise posthumous personality rights, build consent-based governance around digital replicas, and require transparency from those who build them. None of this need slow innovation down; it would simply ensure that the technology develops alongside some basic respect for the people it recreates.
Author(s) Name: Niharika Aggarwal (Maharaja Agrasen Institute of Management and Studies (MAIMS))
References:
[1]ICC Development (International) Ltd v Arvee Enterprises 2003 (26) PTC 245 (Del).
[2]DM Entertainment Pvt Ltd v Baby Gift House 2010 SCC Online Del 4790, CS(OS) No 893 of 2002 (Del HC, 29 April 2010).
[3]Justice KS Puttaswamy (Retd) v Union of India (2017) 10 SCC 1.
[4]Constitution of India 1950, art 21.
[5]Digital Personal Data Protection Act 2023 (India), s 4.
[6]Copyright Act 1957 (India), s 13.
[7]California Civil Code, s 3344.1.
[8]Regulation (EU) 2024/1689 of the European Parliament and of the Council of 13 June 2024 laying down harmonised rules on artificial intelligence (Artificial Intelligence Act) [2024] OJ L, 2024/1689, arts 50, 52.