Author: Namit Bathla, Law Centre-1, Faculty of Law, University of Delhi

The convergence of artificial intelligence with digital identity has created unprecedented legal challenges with regards to the ownership and control of AI-generated avatars of deceased individuals, the ones who don’t exist anymore in the physical realm. This research paper tries to examine the legal framework governing posthumous personality rights in India, with particular focus on the emerging phenomenon of "digital resurrection"—the concept which goes on like  recreating a deceased persons' voices, images, and personas through AI tech. Through different analysis, the paper evaluates whether existing Indian laws, including the Copyright Act 1957, the Digital Personal Data Protection Act 2023, and judicial precedents on personality rights, adequately address questions of ownership, consent, and control over digital existence or remains. The study reveals significant gaps in India's legal standing, including the absence of statutory recognition for posthumous privacy, unclear succession rights for digital assets, and lack of regulation for AI-generated similarity. Drawing on international approaches from jurisprudence across the world, the paper proposes a framework for protecting posthumous digital identity through statutory reforms, digital existence’s planning mechanisms, and platform/intermediaries accountability measures. The paper concludes that India must urgently develop a coherent legal architecture balancing innovation with dignity, autonomy, and the enduring interests of deceased individuals and their families.

Keywords: Digital Resurrection, Posthumous Privacy, AI-generated Avatars, Digital Inheritance, Right of Publicity, India.

In February 2021, the genealogy platform MyHeritage launched "DeepNostalgia," a service enabling users to animate still photographs of deceased relatives, generating millions of animated portraits that flooded social media platforms worldwide. This seemingly harmless technological feature highlighted a broader phenomenon: the capacity of artificial intelligence to resurrect the dead in digital form. Today, sophisticated algorithms can recreate voices, generate lifelike avatars, and simulate conversational patterns of deceased individuals using their digital footprints in form of emails, photographs, voice recordings, and social media interactions. All converging into a single avatar.

The implications are profound and far-reaching, not just with legal point of view but psychological. In South Korea, a mother was reuni ted with her deceased seven-year-old daughter through virtual reality, an encounter so realistic that she reached out to touch the child's digital avatar. The psychological implications of such tools can be fear reaching especially when dealing with a deceased. In the United States, a documentary featuring the late chef Anthony Bourdain incorporated AI-generated voice recordings speaking words Bourdain never actually uttered, sparking intense debate about posthumous consent and artistic integrity. Meanwhile, Indian celebrities including Amitabh Bachchan, Anil Kapoor, and Aishwarya Rai Bachchan have successfully approached courts to restrain unauthorized commercial exploitation of their personas, including through AI-generated content and deepfakes.

Although the celebrities mentioned above are alive and rocking the entertainment realm, these developments do raise urgent legal questions that Indian jurisprudence has barely begun to address: Who owns the rights to a deceased person's digital likeness? Can heirs control AI recreations of their ancestors? Do personality rights, traditionally extinguished upon death, extend to protect against unauthorized digital resurrection? What happens when an AI avatar continues to generate content, enter transactions, or interact with the living long after the biological individual has perished?

The urgency of these questions is compounded by India's unique position. With one of the world's largest and fastest-growing digital populations, Indians generate vast quantities of personal data daily. Yet the legal framework governing posthumous digital identity remains virtually nonexistent. The Digital Personal Data Protection Act, 2023 protects only living individuals. The Copyright Act, 1957 offers limited protection for creative works but not for personality per se. Succession laws, designed for tangible property, struggle to accommodate digital assets governed by platform terms of service rather than statutory inheritance rules.

This paper argues that India must urgently develop a coherent legal framework for posthumous digital identity. Part 2 reviews existing literature on digital death and personality rights. Part 3 outlines the methodology employed. Part 4 analyzes the legal status of posthumous data and digital avatars under Indian law. Part 5 examines comparative approaches from other jurisdictions. Part 6 proposes a framework for India, and Part 7 concludes.

Conceptualizing Digital Death and Posthumous Identity

The phenomenon of digital death has attracted increasing scholarly attention over the past decade. Öhman and Floridi conceptualize digital remains as possessing inherent value analogous to human remains, arguing they should not be exploited solely for commercial gain. They propose treating digital remains with a respect similar to that accorded to corpses, an insight particularly relevant to AI-generated avatars that simulate the deceased's personality.

Harbinja, Edwards, and McVey examine "ghostbots" which signifies digital reincarnations of deceased persons created through AI techniques, and identify potential harms including emotional distress, commercial exploitation, and distortion of historical memory. They propose "do not bother me" clauses in wills as an early solution, allowing individuals to veto posthumous digital recreation. This concept resonates with the principle of testamentary freedom central to Indian succession law.

Birnhack and Morse developed a structure to digital remains by arguing that law should protect the "reasonable expectations of the living regarding their post-mortem condition, subject to balancing them with competing interests and rights of the living." 

This framework acknowledges that posthumous rights are fundamentally about protecting the autonomy and dignity of the individual during their life, a perspective compatible with Article 21 of the Constitution.

Personality Rights: From Privacy to Publicity

The theoretical foundations of personality rights trace to Warren and Brandeis's seminal 1890 article articulating the "right to be let alone." This privacy-based conception gradually evolved to recognize economic dimensions, particularly for celebrities. In Haelan Laboratories v. Topps Chewing Gum, the U.S. courts recognized a distinct "right of publicity", which is the right to control commercial exploitation of one's identity.

In India, personality rights have developed through judicial interpretation rather than legislation. The Supreme Court in R. Rajagopal v. State of Tamil Nadu recognized the right to privacy as a "right to be let alone," balancing it against freedom of expression. The Delhi High Court in ICC Development v. Arvee Enterprises clarified that personality rights vest only in natural persons and cannot be transferred to corporations.

Recent decisions have significantly expanded protection. In Amitabh Bachchan v. Rajat Negi, the Delhi High Court issued an injunction restraining unauthorized commercial exploitation of the actor's voice and likeness. In Anil Kapoor v. Simply Life India, the court extended protection to AI-generated content, deepfake videos, and digital replicas, recognizing that personality rights must evolve with technology. The Bombay High Court in Arijit Singh v. Codible Ventures similarly protected the singer's voice and singing style from unauthorized AI cloning.

However, these cases involved living celebrities. The question of posthumous personality rights remains largely unexplored in Indian jurisprudence. As Raman observes, "the Indian legal system's current inability to adequately address the complexities introduced by AI in replicating a deceased individual's voice with high accuracy raises pressing questions about consent, ownership, and control after death."

Posthumous Data Protection: Comparative Perspectives

The treatment of posthumous data varies significantly across jurisdictions. The EU's General Data Protection Regulation explicitly excludes deceased persons, Recital 27 providing that it "does not concern deceased persons." However, individual member states may legislate posthumous protections. France's Digital Republic Act 2016 allows individuals to set binding directives for posthumous data handling and grants heirs certain access rights. Germany's Federal Court of Justice held in 2018 that digital accounts are inheritable, comparing Facebook messages to personal letters that pass to heirs under succession law.

In the United States, the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) provides a framework for fiduciary access to digital assets, prioritizing user instructions, then platform terms, then court orders. Approximately forty-five states have adopted some version of RUFADAA. Posthumous publicity rights are recognized in about twenty-five states, with durations ranging from ten to one hundred years.

China's courts have recognized digital assets including photographs, chat logs, and e-wallet balances as inheritable property, demonstrating greater willingness to compel platform access for families. However, this approach prioritizes family rights over individual privacy concerns.

India currently lacks comparable frameworks. As Mukherjee notes, "India currently lacks a dedicated legal framework for digital death" despite urgent gaps including "lack of posthumous privacy law, no recognition of digital inheritance, [and] no regulation of AI avatars or deepfake misuse."

AI Resurrection Technologies: Ethical Dimensions

The technological capacity for digital resurrection has outpaced ethical reflection. Voice cloning technologies can replicate voices with minimal training data. For example, in one case, the AI recreated President John F. Kennedy's voice from 831 analog recordings to deliver the speech he never gave. In South Korea, singer Kim Kwang-seok's voice was recreated with family consent, performing a new song decades after his death.

These kinds of uses raise fundamentally ethical questions. Harbinja develops a concept of post-mortem privacy based on harm to the persona before death i.e. the "chilling effect" during life from knowing one's data may be misused after death, and the prospect of "forced immortality-by-proxy" contrary to the individual's wishes. Stokes argues that digital remains allow persons to persist as "ethical patients" after biological death, creating obligations not to delete them.

Del Valle situates these debates within broader philosophical and religious frameworks, observing that Hindu and Buddhist conceptions of impermanence and rebirth may view clinging to digital personas as spiritually counterproductive, while Islamic scholars distinguish between textual chatbots (analogized to grave visitation) and animated avatars (crossing ethical lines).

The literature thus reveals a significant gap: while theoretical frameworks for posthumous digital identity exist, and while comparative legal approaches are emerging, India lacks both scholarly engagement with these questions and legislative responses tailored to its constitutional framework and cultural context. This paper seeks to address that gap.

This paper employs a doctrinal legal research methodology, analyzing primary legal sources including statutes, judicial decisions, and constitutional provisions alongside secondary sources including scholarly articles, reports, and comparative materials.

The doctrinal approach is appropriate for examining how existing legal frameworks like the Copyright Act 1957, the Digital Personal Data Protection Act 2023, the Indian Succession Act 1925, and judicial precedents on personality rights; apply or fail to apply to AI-generated avatars of deceased individuals. This involves interpreting legal texts, identifying gaps and inconsistencies, and evaluating the adequacy of current law.

Comparative analysis examines approaches in the United States (particularly RUFADAA and state publicity laws), the European Union (GDPR and member state implementations), and select Asian jurisdictions (China and Japan). This comparison illuminates alternative models and identifies best practices potentially adaptable to India.

Case analysis examines recent Indian decisions on personality rights, including Amitabh Bachchan v. Rajat Negi, Anil Kapoor v. Simply Life India, and Arijit Singh v. Codible Ventures, to identify emerging judicial trends and their implications for posthumous protection.

The paper acknowledges limitations. The rapid evolution of AI technologies means legal frameworks are always catching up. Empirical data on public attitudes toward digital resurrection in India is limited. Comparative analysis cannot capture every nuance. Nevertheless, the methodology provides a systematic foundation for analyzing the legal challenges and proposing reforms.

Personality Rights: Dignified Living, Posthumous Uncertainties

Indian courts have developed robust protection for personality rights of living individuals, but the posthumous extension remains uncertain. The Supreme Court in K.S. Puttaswamy v. Union of India affirmed privacy as a fundamental right under Article 21, rooted in dignity and autonomy. This dignitarian framework could support posthumous protection in case dignity survives death, as suggested in philosophical literature and cultural traditions.

Recent High Court decisions have expanded personality rights to encompass digital manifestations. In Amitabh Bachchan v. Rajat Negi, the Delhi High Court restrained unauthorized use of the actor's name, image, and voice, recognizing these as protectable attributes. The court issued a John Doe order, the first in India for personality rights-demonstrating willingness to adapt remedies to digital personas.

In Anil Kapoor v. Simply Life India, the court explicitly addressed AI-generated content, restraining unauthorized use of the actor's persona "including AI-generated content, deepfake videos, ringtones, and GIFs." The court emphasized protection not only for the plaintiff but also for family members against tarnishing exploitation. This recognition of family interests is significant for posthumous contexts, where family members may be the primary stakeholders.

The Bombay High Court in Arijit Singh v. Codible Ventures protected the singer's voice and singing style from unauthorized AI cloning, recognizing that voice constitutes an integral aspect of personality. The court's willingness to restrain AI-generated content suggests judicial openness to addressing technological challenges.

However, all these cases involved living plaintiffs. No Indian court has squarely addressed whether personality rights survive death. The traditional common law position, inherited from English law, is that personal rights die with the person. 

Copyright Protection: Voices, Avatars, and AI-Generated Works

Copyright law offers limited protection for posthumous digital identity. The Copyright Act 1957 protects "original literary, dramatic, musical and artistic works" and confers performer's rights under Sections 38A and 38B. However, a person's voice, likeness, or personality per se is not a "work" protectable by copyright.

As Raman notes, in Midler v. Ford Motor Co., the U.S. Ninth Circuit determined that vocal sounds are not "fixed" and therefore cannot be protected by copyright. Indian copyright law similarly requires fixation in tangible form. A voice, as such, is not fixed; only recordings of the voice are fixed. Thus, the underlying voice, something that the attribute AI cloning replicates, falls outside the purview of copyright protection.

AI-generated works present additional complexities. For copyright protection, a work must be "original" and authored by a human. In Naruto v. Slater, the "monkey selfie" case, U.S. courts held that animals lack standing for copyright claims, implying that non-human authors cannot assert copyright. Indian courts would likely follow similar reasoning: AI cannot be an "author" under the Copyright Act. Consequently, AI-generated avatars may lack copyright protection altogether, or protection may vest in the human user who directed the AI's creation but not in the deceased person whose likeness was used.

The practical implication is significant: copyright law provides no mechanism for controlling AI-generated avatars of deceased individuals. Even if the avatar reproduces the deceased's voice, image, and mannerisms, copyright offers no remedy unless the avatar incorporates pre-existing copyrighted works (e.g., recorded songs or photographs). The core problem that is the unauthorized use of a deceased person’s identity remains unaddressed.

Data Protection Law: The Living-Only Limitation

The Digital Personal Data Protection Act 2023 (DPDPA) represents India's first comprehensive data protection framework, but its application is expressly limited to living individuals. The Act defines "personal data" as data about an individual who is identifiable, without extending protection posthumously.

This limitation reflects international patterns like how the GDPR similarly excludes deceased persons but this also creates a significant gap in the Indian context. Posthumous data, including photographs, messages, and voice recordings, may be processed, shared, or used to train AI models without any statutory restrictions. Heirs have no right to access, correct, or delete such data under the DPDPA. 

Mukherjee identifies this as a critical gap: "The Digital Personal Data Protection Act, 2023 (DPDPA) protects only the living. No statutory mechanism for digital wills, posthumous data rights, or avatar protection exists." He notes that platform terms consequently dominate digital legacy governance, with companies rather than law determining what happens to deceased users' data.

Succession Law: Digital Assets and Testamentary Gaps

The Indian Succession Act, 1925 governs inheritance of property, but its application to digital assets remains unclear. Digital assets like the email accounts, social media profiles, cloud storage, cryptocurrency, and AI avatars are necessarily those assets that do not fit neatly within traditional property categories.

Several complications arise. First, most digital platforms provide only licenses to use content, not ownership rights. Upon death, licenses may extinguish, leaving nothing to inherit. Second, passwords and encryption may render digital assets inaccessible despite legal entitlement. Third, data stored on international servers raises jurisdictional conflicts. Fourth, behavioral data and AI-trained models may be considered non-transferable platform properties.

Indian courts have not squarely addressed digital inheritance. The absence of statutory guidance means families must rely on platform policies, which vary widely. Facebook offers "memorialization" and "legacy contact" features allowing designated users to manage memorialized profiles. Google's Inactive Account Manager permits users to specify posthumous data handling. Apple's Legacy Contact feature enables designated contacts to access account data. However, these mechanisms are contractual, not statutory, and may conflict with succession laws.

Mukherjee observes that "executors frequently face more resistance from private corporations than from family members, demonstrating the imbalance between private digital governance and formal legal structures." This imbalance is particularly acute in India, where statutory frameworks for digital inheritance remain absent.

Religious and Cultural Dimensions

Indian attitudes toward death and remembrance are profoundly shaped by religious and cultural traditions. Hinduism emphasizes the soul's (ātman) journey toward rebirth or liberation (moksha). Rituals such as Śrāddha honor ancestors but also facilitate the soul's progression, not its continued presence. An AI avatar simulating the deceased might be viewed as fostering attachment contrary to spiritual detachment.

Islamic traditions, followed by approximately 200 million Indians, generally discourage attempts to communicate with the dead, viewing such practices as contrary to the finality of death and the intermediary state (Barzakh). Recent Islamic scholarship distinguishes between textual chatbots (permissible if analogized to grave visitation) and animated avatars (problematic as crossing ethical lines).

Christian communities in India, while diverse, draw on traditions that value respectful remembrance but discourage attempts to contact the dead. Sikhism emphasizes acceptance of God's will (hukam) and focuses on the eternal rather than temporal attachments.

These cultural perspectives have legal implications. Any framework for posthumous digital identity must respect religious diversity and individual conscience. The principle of testamentary freedom could accommodate religious preferences which means, allowing individuals to specify, based on their beliefs, whether they consent to digital recreation.

United States: Property-Oriented Framework

The U.S. approach combines state-level digital access statutes with posthumous publicity rights. RUFADAA, adopted in modified form by most states, establishes a hierarchy: user instructions (via online tools or wills) govern; absent instructions, platform terms control; and fiduciaries may seek court orders for access. This framework prioritizes user autonomy while respecting platform policies.

Posthumous publicity rights are recognized in approximately twenty-five states, typically for celebrities but sometimes for all individuals. California Civil Code Section 3344.1 protects personality rights for seventy years after death. Indiana Code Title 32 extends protection for one hundred years. Tennessee's Protection of Personal Rights Act, enacted largely to protect Elvis Presley's likeness, provides robust post-mortem protection.

The New York Right of Publicity Law, amended in 2020, explicitly addresses digital replicas of "deceased performers," prohibiting unauthorized use for forty years after death. The law defines "digital replica" as "newly created, original, computer-generated, electronic performance... that is so realistic that a reasonable observer would believe it is a performance by the individual being portrayed." This represents the first U.S. statute specifically targeting AI-generated celebrity replicas.

European Union: Dignity-Oriented Framework

The EU approach emphasizes dignity and privacy rather than property. While the GDPR excludes deceased persons, individual member states have developed protections. France's Digital Republic Act 2016 allows individuals to set binding directives for posthumous data handling and grants heirs limited access rights. The French data protection authority (CNIL) has issued guidance on implementing these provisions.

Germany's Federal Court of Justice held in 2018 that Facebook accounts are inheritable, comparing digital content to personal letters. The court rejected arguments that access would violate telecommunications secrecy, reasoning that heirs step into the deceased's contractual position. This decision effectively treats digital accounts as property subject to succession, while acknowledging third-party privacy interests.

Italy's data protection authority has opined that email contents may be disclosed to heirs when necessary for estate administration.

Asian Approaches

China's courts have recognized digital assets as inheritable property in multiple cases. Chinese regulators have also addressed deepfakes, requiring clear labeling of AI-generated content to prevent misinformation.

Japan, with its strong traditions of ancestor veneration, has seen innovation in digital memorialization. Some Buddhist temples offer "digital graveyards" where families can preserve and interact with digital traces of loved ones. However, Japan lacks dedicated statutes on digital inheritance, relying on general succession principles and platform policies.

Lessons for India

Comparative analysis reveals several lessons for India. First, statutory frameworks are essential as relying solely on judicial development or platform policies creates uncertainty. Second, user autonomy should be prioritized: individuals should have mechanisms to specify posthumous wishes regarding their digital identity. Third, the balance between deceased privacy and family access requires nuanced thinking. Fourth, AI-specific issues like digital replicas, deepfakes, and avatar governance require targeted provisions. Fifth, cultural and religious diversity must be respected, suggesting an opt-in rather than one-size-fits-all approach

Statutory Recognition of Posthumous Personality Rights

India should enact legislation recognizing posthumous personality rights, extending protection for a defined period after death. Drawing on California's seventy-year model and New York's digital replica provisions, such legislation could:

1. Define "personality rights" to include name, image, likeness, voice, signature, and other identifiable attributes

2. Extend protection for a specified term (e.g., fifty years) after death

3. Grant standing to legal heirs or designated representatives to enforce rights

4. Prohibit unauthorized digital replicas, including AI-generated avatars and deepfakes

5. Require clear disclaimers for authorized digital recreations

6. Provide exceptions for bona fide news reporting, commentary, and artistic expression

This statutory framework would address the core gap identified in the Indian law: the absence of posthumous protection despite robust living protections.

Digital Estate Planning Mechanisms

India should establish legal mechanisms for digital estate planning, enabling individuals to specify posthumous wishes regarding their digital assets and identity. Drawing on RUFADAA and French models, such mechanisms could:

1. Recognize "digital wills" as valid instruments

2. Allow individuals to designate digital executors with authority to manage digital assets

3. Permit binding instructions regarding account deletion, memorialization, or transfer

4. Establish hierarchy of authority: user instructions > platform terms > statutory default rules

5. Create presumption in favor of user privacy

These mechanisms would empower individuals to control their digital legacy while providing clarity for platforms and families.

Platform Accountability and Governance

India should impose statutory obligations on platforms regarding deceased users' data, drawing on consumer protection principles and data protection frameworks. Such obligations could include:

1. Transparent policies for digital death, publicly disclosed and readily accessible

2. Mechanisms for verified heirs to request account access or deletion

3. Timely response obligations with specified timeframes

4. Prohibition on unilateral override of user instructions

5. Penalties for non-compliance with statutory obligations

These provisions would address the current imbalance where platform terms effectively govern digital legacy without statutory oversight.

Regulation of AI Avatars and Digital Clones

India should enact specific provisions addressing AI-generated avatars of deceased individuals, recognizing the unique challenges these technologies pose. Drawing on New York's digital replica provisions and emerging ethical guidelines, such provisions could:

1. Prohibit unauthorized creation or operation of AI avatars simulating deceased individuals

2. Require explicit, informed consent during lifetime for any posthumous AI recreation

3. Mandate transparency and clear labeling for authorized avatars

4. Establish accountability for harmful or defamatory avatar outputs

5. Impose limits on commercial exploitation of posthumous avatars

6. Provide for "retirement" of avatars after specified periods or at family request

These provisions would address the specific challenges of AI resurrection technologies while respecting individual autonomy and family interests.

Constitutional Foundations

These legislative proposals find constitutional support in Article 21's protection of life and personal liberty, interpreted expansively to include dignity and autonomy. The Supreme Court in Puttaswamy affirmed that privacy is "a constitutional value which is part of the right to life." This dignitarian framework extends logically to posthumous contexts: if dignity is intrinsic to personhood, it does not simply cease upon death, at least in contexts where the individual's identity continues to affect the living.

The right to reputation, also protected under Article 21, should support posthumous protection against defamatory digital recreations. While traditional defamation law does not protect the dead, AI avatars capable of generating new statements in the deceased's voice create reputational risks that living persons could not have anticipated. Statutory protection addresses this gap.

Freedom of speech under Article 19(1)(a) requires balancing against these interests. Exceptions for news reporting, commentary, and artistic expression, modeled on existing exceptions in defamation and copyright law, would ensure that legitimate expression is not unduly restricted.

The capacity to resurrect the dead through artificial intelligence by creating their voices, images, and interactive avatars that simulate deceased individuals presents one of the most profound legal challenges of the twenty-first century. India, with its vast digital population and rich cultural diversity, must urgently develop legal frameworks addressing these challenges.

This paper has demonstrated that existing Indian law is inadequate. Personality rights, robustly protected for the living, have no clear posthumous extension. Copyright law protects creative works but not identity per se. Data protection law excludes deceased persons entirely. Succession law, designed for tangible property, cannot accommodate digital assets governed by platform terms. Religious and cultural traditions, while deeply relevant, provide no unified guidance.

Comparative analysis reveals alternative approaches. The U.S. property-oriented framework emphasizes inheritance and commercial rights. The EU dignity-oriented framework prioritizes privacy and autonomy. Asian jurisdictions demonstrate varying degrees of judicial and regulatory engagement. Each offers lessons for India, but none can be transplanted wholesale.

A coherent Indian framework must reflect constitutional values, respect cultural diversity, and address technological realities. It should recognize posthumous personality rights for a defined term, establish mechanisms for digital estate planning, impose platform accountability, and specifically regulate AI-generated avatars. It must balance individual autonomy with family interests, and protection with freedom of expression.

The alternative is damaging. Without clear rules, platform policies will govern digital legacy, families will face uncertainty and grief, and commercial interests may exploit deceased individuals' identities without consent or compensation. The dead cannot speak for themselves; the law must speak for them. 

As Mukherjee observes, "digital death marks one of the most profound legal frontiers of the 21st century... the law must safeguard these emerging forms of existence." India has the opportunity to develop a framework that honors human dignity, respects cultural diversity, and embraces technological innovation while ensuring that even in the digital afterlife, the rights and autonomy of individuals are protected.

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