Redefining Trademark Dilution in Indian Jurisprudence
Contributor: Shravit Arora
Virtual influencers, sometimes referred to as CGI influencers, are digitally generated personalities intended to fill the responsibilities normally filled by real people on social media. Artificial intelligence (AI), advanced computer graphics, and animation techniques are used to create these virtual beings. On social media, they are able to create and distribute material, interact with their followers, and recommend things. Virtual influencers are more manageable and adaptable for brands and marketers than real influencers because they don’t age, need downtime, or have personal scandals. Lil Miquela, a digital model and musician with millions of Instagram followers, and Shudu, the first digital supermodel in history, are two well-known examples of virtual influencers.
The development of AI and digital animation technologies is fundamental to the rise of virtual influencers. Early examples of virtual personalities were computer-generated characters in animated movies and video games. The lifelike appearance and behavior of these artificial beings have been greatly improved by the development of motion capture technologies, accurate 3D rendering, and sophisticated AI algorithms. Social media platforms offered an ideal environment for the emergence of virtual influencers in the 2010s. They can now communicate with consumers in a more personalized and interesting way than ever before thanks to technological developments like deep learning and neural networks, which have almost completely replaced human interaction in these systems.
There are significant distinctions between virtual and human influencers, despite the fact that both play comparable roles in social media engagement and marketing. Genuineness, firsthand knowledge, and emotional ties are what human influencers offer to their audience, and these elements are particularly effective in fostering relatability and trust. Virtual influencers, on the other hand, are completely under the creators’ control, meaning that there is no chance of human behavior-related problems like scandals or controversies and that brand alignment and messaging consistency can be achieved precisely. Virtual influencers might not, however, be able to provide the same level of spontaneity and real emotional depth as human influencers. Notwithstanding these distinctions, influencers of both kinds are still capable of reaching and influencing audiences, with virtual influencers providing particularly advantageous benefits in relation to dependability and personalization.
Intellectual Property Rights in the Creation of Virtual Influencers
A multitude of digital materials, software, and algorithms interact intricately to create virtual influencers, and each of these elements may be protected by copyright laws. Usually created by tech businesses or creative teams, these influencers are designed and animated using proprietary software and algorithms. Copyright law, which gives the creators the only authority to use, distribute, and alter their software, protects these applications. In addition, copyright protects the digital assets, which include graphics, animations, and 3D models. Copyright law protects these materials as original works of writing, therefore unauthorized use or copying may result in serious legal issues.
It might be difficult to ascertain who owns the creative components of a virtual influencer, such as their voice, personality, and style. The copyright to these aspects usually belongs to the company or individuals that produce the virtual influencer. This includes the voice, which is frequently produced by voice actors or voice synthesis technology, as well as the visual design, which comprises the character’s look, attire, and accessories. As original creative works, the virtual influencer’s personality and background are also protected by copyright, which makes them essential for fostering audience engagement. When these components are owned, the creators can decide how the virtual influencer is used and grant licenses for these qualities to be used for business.
Virtual influencers are frequently the product of teamwork between several creatives, such as voice performers, animators, graphic designers, and AI engineers. Because of this collaborative character, disagreements regarding the ownership and rights of the virtual influencer may arise. Having explicit contractual agreements that specify the obligations and rights of each party is crucial in these kinds of situations. These contracts ought to outline who owns the copyrights to each virtual influencer’s creation and how earnings from their efforts will be distributed. Ownership disputes may occur in the absence of explicit agreements, which may require legal action and resolution.
Virtual Influencers and Trademark Law
The protection of virtual influencers’ names and likenesses is largely dependent on trademark law. Virtual influencers can register their distinguishing physical qualities, names, logos, and other identifiers as trademarks, much like traditional brands and celebrities do. By preventing unlawful use of these components by outside parties, this legal protection helps maintain the virtual influencer’s brand identity’s distinctiveness and exclusive association with its legitimate owner. In addition to guarding against direct copying, trademark registration keeps a brand’s identity and worth intact by avoiding tarnish or dilution through association with subpar or inappropriate goods and services.
Using trademark law to regulate virtual influencers can be complicated and difficult, as demonstrated by a number of noteworthy examples. For example, Lil Miquela, a virtual influencer, may have violated her trademark due to unapproved use of her name and likeness by companies looking to profit from her notoriety. Shudu, the digital supermodel, was embroiled in a legal battle in another instance when a clothes company improperly utilized her resemblance without her consent, casting doubt on the scope of her likeness’s trademark protection. These cases highlight how crucial it is to have strong legal frameworks and for virtual influencer makers to take aggressive steps to safeguard their intellectual property by registering their trademarks and pursuing enforcement procedures.
In trademark law, the growing field of virtual influencers offers both new opportunities and legal concerns. Clear legal standards and protections are more and more necessary as these digital personas grow in popularity and influence. More extensive trademark portfolios for virtual influencers that include not just their names and likenesses but also their catchphrases, signature styles, and other distinguishing characteristics may be a trend in the future. Furthermore, as technology develops, new types of trademark infringement—like deepfakes and unapproved digital copies—may arise. To successfully combat these growing risks, trademark rules will need to be continuously updated. Protecting the trademark rights of virtual influencers is a critical responsibility for legal professionals and creators in order to ensure their long-term success and legal protection.
Content Created by Virtual Influencers
As unique works of authorship, the material produced by virtual influencers—such as photographs, films, and social media posts—is shielded by copyright laws. The creators have the only authority to copy, distribute, and exhibit the content thanks to this protection. Because virtual influencers frequently generate large amounts of media, these safeguards are essential to avoiding unlawful use or duplication by outside parties. When someone utilizes copyrighted content without authorization, it is considered infringement and may result in lawsuits for damages and orders to cease the infringement. Making sure this content is properly registered for copyright can strengthen defenses in court and provide enforcement avenues more clarity.
Companies usually enter into license agreements with the creators or owners of these digital identities when they want to deploy virtual influencers for marketing efforts. These agreements outline the conditions for using the virtual influencer’s likeness and content, including the kind, extent, and length of use. In order to guarantee that the content is utilized in ways that complement the virtual influencer’s brand image and further the company’s marketing goals, licensing agreements play a critical role in outlining the rights and obligations of both parties.
The digital format of virtual influencers’ work creates special opportunities and obstacles for licensing and copyright management. Digital platforms enable virtual influencers to reach large audiences by facilitating the broad diffusion and economic exploitation of content. However, the ease of sharing and duplicating content digitally means that strong copyright enforcement measures are required. To quickly identify and resolve such infringements, businesses and authors need to monitor internet platforms and utilize digital rights management (DRM) tools. To guarantee that all parties’ rights are upheld and that the commercial potential of virtual influencers is fully exploited, explicit and thorough license agreements that cover a range of digital uses and platforms must be drafted.
Rights of the Original Creators
The programmers and artists who are the developers of virtual influencers have moral rights because their work acknowledges their personal connection to it. The right to integrity, which guards the work against disparaging changes that can damage the creators’ reputations, and the right to attribution, which guarantees that the creators are fairly acknowledged for their efforts, are examples of moral rights. These rights are particularly important in the case of virtual influencers because the elaborate appearance, demeanor, and actions of the virtual influencers frequently mirror the creative vision and technical proficiency of their creators. In the digital sphere, moral rights offer a layer of protection that recognizes and upholds the creators’ integrity on a personal and professional level.
A team of experts, including voice actors, animators, graphic designers, and AI engineers, often works together to create a virtual influencer. Each of these individuals contributes a distinct creative element to the finished work. The establishment of legal safeguards for these contributions can be facilitated by copyright law, which acknowledges joint authorship in works produced by several people. Having explicit agreements that define each collaborator’s ownership and rights is crucial to preventing disagreements. These contracts ought to outline the distribution of copyright, the allocation of virtual influencer earnings, and the management of influencer use and modification rights.
Clear legal frameworks are necessary due to the collaborative nature of building virtual influencers, but it’s also important to strike a balance between individual and collective rights. Detailed contracts that specify the extent of each collaborator’s rights and obligations are frequently used to achieve this balance. Such contracts must to outline how moral rights are upheld in a collaborative setting, guaranteeing that each person’s contributions are recognized and safeguarded. In order to provide the creators with continuous protection as the digital persona changes, these agreements may also contain provisions pertaining to the usage and adaption of the virtual influencer in the future. Creators can protect their contributions and promote creativity and innovation in the growth of virtual influencers by addressing both collective and individual rights.
Guidelines with Respect to Virtual Influencers
For celebrities, influencers, and virtual influencers on social media platforms, the Department of Consumer Affairs, under the Ministry of Consumer Affairs, Food, and Public Distribution, has developed a set of recommendations known as “Endorsements Know-hows!” The principles are intended to guarantee that people do not deceive their audiences when promoting goods or services and that they adhere to all related regulations and the Consumer Protection Act.
According to the standards, recommendations must be declared in plain, uncomplicated language. Terms like “sponsored,” “advertisement,” “collaboration,” or “paid promotion” are acceptable. People are not allowed to recommend any good or service that they have not personally used or experienced, or for which they have not done their own research. The department has noted that there is a lack of clarity regarding the appropriate disclosure word for each type of partnership. Therefore, any of the following disclosures—”advertisement,” “ad,” “sponsored,” “collaboration,” or “partnership”—may be used for paid or barter brand promotion. But the word needs to be mentioned in the headline text or as a hashtag. According to the guidelines, influencers and celebrities who possess authority, knowledge, position, or a close relationship with their audience, which enables them to impact their audience’s opinions about a brand, product, service, or experience, must disclose.
According to the rules, the disclaimer needs to be included in the endorsement message in a way that is easy to see, understand, and highly visible. Links or hashtags shouldn’t be combined with disclosures. Disclosures about endorsements in photos should be sufficiently overlaid so that visitors may see them. Disclosures for endorsements in videos or live streams must be provided in both audio and visual formats, and they must be shown consistently and prominently during the entire event.
According to the standards, influencers and celebrities should always verify that the sponsor can support the promises stated in the campaign. It’s also advised that the endorser have firsthand familiarity with the product or service. In summary, the principles are intended to guarantee that people do not deceive their audiences when promoting goods or services, and that they adhere to all relevant regulations and guidelines, including the Consumer Protection Act. Following these rules is crucial for celebrities, influencers, and virtual influencers to stay genuine and transparent with their audience.
