Tennessee Snatches “Voice” from the Jaws of Artificial Intelligence

Tennessee’s Ensuring Likeness Voice and Image Security Act

On March 21, 2024, Tennessee passed the Ensuring Likeness Voice and Image Security (“ELVIS”) Act¹ and in doing so, became the first U.S. state to protect songwriters, performers, and music industry professionals from the unauthorized replication of an individual’s voice through the use of artificial intelligence.

The ELVIS Act amends Tennessee’s existing Protection of Personal Rights (“PPR”) Act, which was passed in 1984 to protect against the unauthorized use of an individual’s name, image, and likeness.² It should come as no surprise that Tennessee passed the ELVIS Act; the music industry in Tennessee supports more than 61,617 jobs across the state, contributes $5.8 billion of GDP to the U.S. economy, and fills over 4,500 music venues across the globe.³

In a press release from January 10, 2024, Tennessee Governor Bill Lee noted that the PPR Act does not “address new, personalized generative AI cloning models and services that enable human impersonation and allow users to make unauthorized fake works in the image and voice of others.” With the rise of generative AI, the unauthorized replication of a voice through the use of AI has become a concern.

This is demonstrated by a 2023 collaborative duet featuring Drake and The Weeknd, which went viral. The problem was that neither Drake nor The Weeknd were involved with the creation of the song. A songwriter named “Ghostwriter977” used AI voice-cloning tools to produce the hit song. This resulted in Universal Music Group taking legal action.

Changes to the PPR Act

The ELVIS Act makes the following two changes to the PPR Act:

1. a person is now liable to a civil action if such person “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, with knowledge that distributing, transmitting, or otherwise making available the photograph, voice, or likeness was not authorized by the individual or, in the case of a minor, the minor’s parent or legal guardian, or in the case of a deceased individual, the executor or administrator, heirs, or devisees of such deceased individual.”;⁴ and
2. the unauthorized use of an individual’s “voice”⁵ is now prohibited in the same way that an unauthorized use of an individual’s name, photograph, or likeness was previously prohibited by the PPR Act.

The first change to the PPR Act set forth above is the reason why the ELVIS Act is described as “first-of-its-kind legislation.”

Protection of “Voice” in Other States

However, the second change to the PPR Act set forth above, i.e., the protection of an individual’s “voice” from unauthorized use, is not a new concept. The legal framework for protection of an individual’s “voice” varies, with certain U.S. states providing protection by a common law right of publicity, a statutory right of publicity, and/or a right of privacy. The terms, elements of a legal claim, and the extent of protection associated with such rights can also vary greatly between the U.S. states which recognize these rights. 

In California, the unauthorized use of an individual’s “voice” is protected by both the common law⁶ and a statutory right of publicity.⁷ However, in New York, the unauthorized use of an individual’s “voice” is not protected by the common law right of publicity. Instead, in New York, the unauthorized use of a: (a) living individual’s “voice” is protected by a right of publicity which exists solely as an aspect of the statutory right of privacy;⁸ and (b) deceased individual’s “voice” is protected by a statutory right of publicity.⁹ The legal framework used by Tennessee is generally similar to that used by California (i.e., protection is provided by both the common law¹⁰ and a statutory right of publicity¹¹).

Watch this Space

The ELVIS Act takes effect on July 1, 2024. Time will tell how the ELVIS Act will impact songwriters, performers, and music industry professionals in Tennessee, and whether it achieves the express goal of protecting the “future of Tennessee’s creators, the jobs that they support across the state and country, and the bonds between fans and their favorite bands.”¹²

Footnotes

_{1 https://www.capitol.tn.gov/Bills/113/Amend/HA0578.pdf
2 https://law.justia.com/codes/tennessee/2021/title-47/chapter-25/part-11/
3 https://www.tn.gov/governor/news/2024/1/10/tennessee-first-in-the-nation-to-address-ai-impact-on-music-industry.html
4 ELVIS Act; Section 6(a)(3).
5 “Voice” means 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.
6 Downing v. Abercrombie & Fitch, 265 F.3d 994, 1001 (9th Cir. 2001); Montana v. San Jose Mercury News, Inc., 34 Cal. App. 4th 790, 793-94 (1995).
7 Cal. Civ. Code §§ 3344 and 3344.1.
8 Stephano v. News Grp. Publ'ns, Inc., 485 N.Y.S.2d 220, 224 (1984).
9 N.Y. Civ. Rights Law § 50-f.
10 State ex rel. Elvis Presley Int'l Mem'l Found. v. Cromwell, 733 S.W.2d 89, 96-97 (Tenn. Ct. App. 1987).
11 T.C.A. §§ 47-25-1101 to 47-25-1108.
12 https://www.tn.gov/governor/news/2024/1/10/tennessee-first-in-the-nation-to-address-ai-impact-on-music-industry.html}