In brief
Surrounded by an improbable retinue of country music stars and state lawmakers, on March 21, 2024 Tennessee Governor Bill Lee signed HB 2091, which amends the state’s right of publicity statute to create the Ensuring Likeness, Voice, and Image Security Act of 2024 (the “ELVIS Act”). The ELVIS Act is billed as the first law to protect “songwriters, performers, and music industry professionals’ voice from the misuse of artificial intelligence.”
The ELVIS Act arrives amid growing concern about the impact of artificial intelligence (AI)—and particularly the harms from synthetic media and deepfakes—on creative industries. Tensions around film and television production companies’ use of AI-generated performances was famously at the center of SAG-AFTRA’s recent negotiations with studios. And over the past year, content owners from visual artists to authors have alleged in litigation that their intellectual property rights are infringed through the training of generative AI applications and by the generation of new works styled on copyrighted content.
In detail
The new legislation makes several important changes to Tennessee’s right of publicity statute. Although its targeting of AI misuse of performers’ likenesses has stolen the headlines, many of the ELVIS Act’s requirements apply regardless of whether the offending conduct uses AI. Among the key provisions of the new law:
- Protection for voice: One of the most consequential amendments is the addition of a performer’s voice to the list of attributes that can be protected by the right of publicity. Under the earlier law, protection was limited to a person’s name, photograph or likeness. Although viral soundalikes like “Heart on My Sleeve” and applications like Eleven Labs have put voice emulation technology in the spotlight, it should be noted that the new law will protect unauthorized uses of a person’s voice regardless of the technology involved. Indeed, many other states’ right of publicity laws already afford right of publicity protection to a person’s voice. See e.g., Cal Civ Code § 3344(a).
- Individual liability: The ELVIS Act amendments establish individual liability for right of publicity violations, whereas the earlier act confined liability to organizational entities like corporations. While the impact of this change will doubtless extend beyond the AI sphere, the extension of liability to individuals acknowledges that the accessibility of powerful generative AI applications allows virtually anyone to create deepfakes or soundalikes.
- New causes of action: The ELVIS Act introduces two new causes of action:
- First, it establishes liability for publishing, performing, distributing, transmitting or otherwise making publicly available an individual’s voice or likeness without their authorization. This differs from Tennessee’s existing right of publicity law, under which an infringement is only actionable if it is for the purpose of advertising, fundraising or solicitation.
- Second, the ELVIS Act prohibits the distribution, transmission or making available of an algorithm, software or tool whose primary purpose is the unauthorized production of an individual’s photograph, voice, or likeness. This provision takes aim squarely at software developers offering tools that can be used to emulate well-known entertainers. Although some courts have recognized secondary liability for rights of publicity, the ELVIS Act is the first law to codify such liability for AI developers into an express prohibition.
- Third party enforcement: The ELVIS Act clarifies that, where an individual has entered into an exclusive contract as a recording artist or granted an exclusive license to distribute sound recordings featuring the individual’s voice, either the individual or the other contracting party may enforce rights of publicity.
We have prepared a redline comparison showing the changes to Tennessee’s right of publicity statute under the new law for ease of review.
Key takeaways
Much of the discussion surrounding the ELVIS Act has focused on how it reshapes the dynamics between generative AI platforms and the creative industries, especially the music industry. To be sure, developers of AI applications should review their products to ensure that don’t run afoul of the new law. This assessment may include determining both the function of applications as well as their “purpose”, including:
- Consideration of whether applications have the technical capability to allow users to create an individual’s photograph, voice, or likeness
- Review of application documentation and marketing to identify whether infringing uses are suggested or encouraged
- Assessment of licenses and contracts for provisions restricting unauthorized uses
- Audit of processes to detect infringements and suspend infringing user accounts
But even organizations outside the AI space should view the amendments as a good opportunity to review their compliance with Tennessee’s right of publicity law. The ELVIS Act expands and strengthens the protections afforded to performers—including adding voice to the list of protected attributes, adding new causes of action, and broadening enforcement. Organizations should review their practices to ensure they comply with these new measures.
