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In Brief: ELVIS means something new in Tennessee.
Here’s What Happened:
Elvis. You know who that stands for. The name has an additional meaning for recording artists in Tennessee.
Tennessee enacted the Ensuring Likeness, Voice and Image Security Act (ELVIS) of 2024 (kudos to the legislative assistant who made that string of words). Tennessee has always had robust statutory right of publicity protection by prohibiting the use of an individual’s name, photograph and likeness without permission. As of July 1, 2024, when ELVIS goes into effect, the protection will be expanded to meet the challenge of today’s world of AI-generated deep fakes and sound-alikes (sometimes called “generative AI”).
ELVIS enlarges existing Tennessee right of publicity law in two main ways:
First, the law expands the right of publicity to an individual’s voice. The definition of "voice" includes "a sound in a medium that is readily identifiable and attributable to a particular individual, regardless of whether the sound contains the actual voice or a simulation of the voice of the individual." The broad definition appears to include existing sound recordings of someone’s voice and a digitally generated record or audiovisual content that sounds like the individual.
Second, ELVIS creates secondary liability for any person or company that:
· "Publishes, performs, distributes, transmits, or otherwise makes available to the public an individual's voice or likeness, with knowledge that use of the voice or likeness was not authorized by the individual"; or
· "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 an individual's photograph, voice, or likeness without authorization from the individual."
These two provisions appear to target third party “actors” who contribute to the creation and dissemination of a deep fakes. The first provision could be interpreted to mean social media platforms. The second provisions seems to be aimed at providers of technology to create generative AI.
The remedies have stayed largely the same including injunctive relief, actual damages, lost profits and impounding or destroying of materials that violate the statute. However, ELVIS gives standing to recording companies to sue on behalf of their artists with exclusive contracts.
Also new is the narrowing of the fair use defense. Fair use will be a defense when used for news, public affairs or sports broadcasts but only to the extent that the protection raises First Amendment concerns.
The exemption for use in advertising will not apply when the defendant has knowledge or reasonably should have known about unauthorized use.
Why You Should Know This: Today’s blog is a companion piece to last week’s post about the George Carlin deep fake. Deep fakes and sound-alikes are here to stay. As the technology evolves, so does the law. The law may lag behind the technology, but anyone using, publishing, or distributing generative AI of a celebrity should be cautious.
Case Information: T. C. A. § 47-25-1101 et seq.