/>iTennessee has passed a law, considered one of a kind, geared at deterring unauthorized use of an individual’s voice via artificial intelligence (AI). Tennessee’s new AI law is inspired by the state’s close connection with many recording artists who live, record or perform there.
On March 21, 2024, Tennessee Governor Bill Lee signed into law the Ensuring Likeness, Voice and Image Security (ELVIS) Act. AI’s ever expanding capabilities may represent the best of times, or worst of times depending whom you ask and the circumstances. For example, last year a record label reportedly objected to an anonymous AI-generated tune imitating vocals of famous musicians Drake and The Weeknd as a copyright violation.1 On the other hand, recording artist Grimes has invited fans to make music with AI-generated versions of her voice in posts on X,2 and the Beatles reportedly used AI to help release a “final” song.3 The distinction with respect to how AI is viewed may hinge in large part on whether the AI “inputs” (an image, voice or other content) were used with consent. Tennessee’s new law seeks to address that aspect. Indeed, billboard reports the new amendment had wide support from over 180 industry groups.4
The Elvis Act isn’t entirely new; it amends and becomes the name of the state’s prior right of publicity law (formerly known as “Tennessee Personal Rights Protection Act”). The Elvis Act relies on many portions of the prior law to attempt to protect voices in addition to maintaining former protections of the law. Controlling use of one’s voice is considered an individual property right in Tennessee under the Elvis Act – same as controlling use of one’s name, image and likeness has been under the law amended by the Elvis Act. The original law dated from 1984 and rose from efforts in Tennessee to protect commercial use of musical legend Elvis’s legacy by his estate. Many states have laws protecting rights of publicity of varying scope. For example, Tennessee’s law extends to personal attributes of both alive and dead individuals (e.g., Elvis).
The Elvis Act on its own is not a panacea against unwanted AI voice impersonation. However, the Act does represent an arrow in one’s quiver to help defend against or enjoin unpermitted use of one’s personal attributes, including voice. Consider the law’s limitations. To avail oneself of the law, which has a private right of action, requires suing the alleged AI perpetrator, who may or may not be known.
The Elvis Act on its own is not a panacea against unwanted AI voice impersonation. However, the Act does represent an arrow in one’s quiver to help defend against or enjoin unpermitted use of one’s personal attributes, including voice.
Some of the AI-directed provisions of the Elvis Act try to reach to technology, limiting distribution of “an algorithm, software, tool, or other technology, service, or device, the primary purpose or function of which is to produce a particular, identifiable individual’s photograph, voice, or likeness, if the person knows that distributing, transmitting, or otherwise making available the photograph, voice, or likeness was not authorized by the individual.” This has the potential to be overbroad and suck in technologies that have multiple applications, not merely an unpermitted application, and represents one of the challenges trying to put guard rails around AI.
Violation of the Elvis Act is a misdemeanor in Tennessee beyond permitting recovery of damages and possible injunctive relief to halt an offending use in a civil suit. Obtaining these remedies carries some burden for the injured party, and may or may not have strong enough deterrent effect for offenders, particularly offenders acting anonymously. Actual damages for a creative impersonation can be tricky to prove, particularly for “regular” individuals who are not well-known public figures able to monetize their famous personas. That’s because actual damages in Tennessee historically appeared to be tied to unauthorized commercial exploitation of a person’s name or likeness (such as “for purposes of advertising products, merchandise, goods, or services, or for purposes of fundraising, solicitation of donations, purchases of products, merchandise, goods, or services”). Celebrities, professional musicians and other public figures are more likely to be able to prove damage from unauthorized commercial exploitation compared to someone not in the public eye.
The commercial tie-in is still present in the Elvis Act and extends across unpermitted use of a name, likeness or voice. However, a separate, new part of the Act also seems to add a new lower standard to halt unpermitted use of a voice via AI (without a commercial-tie). It limits “publish[ing], perform[ing], distribut[ing], transmit[ting] or otherwise mak[ing] available to the public an individual's voice or likeness, with knowledge that use of the voice or likeness was not authorized…” (without a commercial-tie). How permissively courts interpret this new section remains to be seen.
The Elvis Act includes minors (whose parent or legal guardian did not consent) within the group of individuals protected by the law.
Not all uses under the Elvis Act require consent or are actionable. The law has exceptions for “fair use” in news, public affairs, or sports reporting, though AI voice cloning generally doesn’t seem “fair” or necessary in any context like that.
No doubt the Elvis Act is a step forward in navigating unpermitted uses of AI, but it has its scope limitations, some of which are described above. It will be interesting to watch how the law is enforced, whether other states adopt a “copy cat” approach, and whether Tennessee’s bellwether step forward may help galvanize federal legislators to adopt a uniform national standard (federal legislation has been introduced but has not made it to “law” yet).
Industry groups also have AI top of mind. Shortly after Tennessee adopted the Elvis Act, SAG-AFTRA announced its members ratified “the 2023 Television Animation Agreement and the 2023 Basic Cable Animation Agreement with the Alliance of Motion Picture and Television Producers,” which address (among many provisions) use of AI with respect to human actors’ voices and require producers to obtain actor consent in connection with reproduction of their voices via AI.5 This SAG-AFTRA example is merely mentioned given its close proximity in time to passage of the Elvis Act. Numerous other contemporaneous efforts wrangling with appropriate uses of AI abound.
References to recording artists are merely given as examples of current developments around AI in current culture. Other examples could also have been chosen.
1Tennessee becomes the first state to protect musicians and other artists against AI by Rebecca Rosman for NPR, March 22, 2024 (last visited March 28, 2024) (providing this example: “Last year, music fans responded with disbelief after an anonymous TikTok user used AI to simulate the voices of artists Drake and The Weeknd to create the viral song ‘Heart on My Sleeve." The artists' label owner Universal Music Group invoked copyright violation to get the song removed from [assorted social media] platforms.”)
2The Beatles Are Using AI To Release One Last Song–Why Aren’t More Musicians Doing The Same?By Hugh McIntyre for Forbes (last visited March 28, 2024) (describing AI use: “…AI isn't replicating the Beatles's voices but rather enhancing the original material, resulting in a cleaner and more refined sound…”)
3 See assorted tweets from @grimezez account on X platform in April 2023.
4Tennessee Adopts ELVIS Act, Protecting Artists’ Voices from AI Impersonation by Kristin Robinson for billboard, March 21, 2024 (last visited March 28, 2024) (stating about the ELVIS Act, “The initiative has buy-in from more than 180 organizations worldwide, including [various well-known examples].”)
5 SAG-AFTRA News Update: SAG-AFTRA Members Ratify TV Animation Contracts, dated March 22, 2024 (last visited March 28, 2024). The press release includes a summary of contract terms, including the AI voice consent provision.
