On July 1, 2024, the Tennessee Ensuring Likeness, Voice, and Image Security Act of 2024 (“ELVIS Act” or “the Act”) will go into effect, bolstering the limitations on the unauthorized commercial use of an individual’s voice. The Act, which amends the Tennessee Personal Rights Protection Act of 1984, was enacted in response to the growing proliferation of AI-generated and deepfake music that has mimicked the work of many stars and celebrities. The Act broadly proscribes the distribution of “an individual’s voice or likeness” if the distributor has knowledge that use of the voice or likeness was not authorized by the individual. The Act specifically targets deepfakes by also proscribing distribution of a person’s voice, image, or likeness where the unauthorized user “distributes, transmits, or otherwise makes available an algorithm, software, tool, or other technology, service, or device, the primary purpose or function of [which] is the production of a particular, identifiable individual’s photograph, voice, or likeness….”
Persons in violation of the Act can be liable in a civil action, through which both monetary and injunctive relief are available remedies. The ELVIS Act also establishes criminal sanctions by making any person who violates it guilty of a Class A misdemeanor—which in Tennessee carries the potential penalty of up to eleven months and twenty-nine days of imprisonment.
In order to tailor the breadth of the ELVIS Act’s restrictions, the Act also contains a few key exemptions. First, the Act exempts the use of an individual’s name, photograph, voice, or likeness if the use is protected by the First Amendment to the United States Constitution and is included in one of the following categories:
- The use is in connection with any news, public affairs, or sports broadcast or account;
- The use is for the purposes of comment, criticism, scholarship, satire, or parody;
- The use is a representation of the individual as the individual’s self in an audiovisual work, as defined under 17 U.S.C. § 101, unless the audiovisual work containing the use is intended to create, and does create, the false impression that the work is an authentic recording in which the individual participated;
- The use is fleeting or incidental; or
- The use is for an advertisement or commercial announcement for a work connected to any one of the four enumerated categories above.
Second, the ELVIS Act establishes an exemption for owners and employees of distribution mediums, such as television stations, newspapers, or magazines, who publish advertisements or solicitations in violation of the ELVIS Act unless those owners or employees “had knowledge or reasonably should have known of the unauthorized use of the individual’s name, photograph, voice, or likeness….”
The ELVIS Act was introduced into the Tennessee General Assembly on January 10, 2024, and was signed into law on March 21, 2024 after receiving broad bi-partisan support for its passage. Its enactment also gained the support of popular country music celebrities including artists Luke Bryan and Chris Janson, both of whom were present at the bill’s signing by Tennessee Governor Bill Lee.
The expanding proliferation of artificial intelligence and deepfake technology has sparked global concern. In 2023, the World Economic Forum released a report estimating that, by 2026, potentially 90% of online content could be synthetically generated. Tennessee’s passage of the ELVIS Act represents the first state law passed by a legislature to enact restrictions that target the growing proliferation of deepfakes as related to one of the state’s critical industries. Other states, like California and New York, have proposed bills seeking to protect their own critical industries but have not yet enacted those into law. In 2023, the California Assembly introduced AB 459, which, designed to protect actors, would make unconscionable any agreement that would allow for the creation of digital replica of an individual’s voice or likeness in the place of work. In New York, the proposed SB 2477D is designed to protect workers in the modeling industry by prohibiting model management companies from “creat[ing], alter[ing], or manipulat[ing] a model’s digital replica using artificial intelligence without clear, conspicuous and separate written consent from the model.” On the federal level, although some bills designed to combat deepfakes have also been introduced in Congress, those proposed acts have largely remained in committee.
