By JC HeinbockelLauren Gregory Leipold, and Owen Wolfe

Seyfarth Synopsis: Tennessee has joined the ranks of states regulating, in various ways, the use of artificial intelligence to manipulate an individual’s likeness.  On March 21, 2024, Gov. Bill Lee said “thank you very much” to the Tennessee legislature and signed into law the Ensuring Likeness, Voice, and Image Security (“ELVIS”) Act of 2024, HB 2091/SB 2096, which updates Tennessee’s right of publicity statute.  The new law is groundbreaking because Tennessee has gone beyond other states that regulate AI-generated, sexually explicit “deepfakes.”  The ELVIS Act represents the broadest prohibition yet on the unauthorized use of an individual’s voice or likeness

The right of publicity (sometimes called the right of personality) is a patchwork framework of laws that differ from state to state, built out of both statutes and common law.  The general purpose of such laws is to prevent the unauthorized commercial exploitation of a person’s likeness.  Many states, including Tennessee, extend protection to the deceased (which, in the case of Tennessee, was motivated largely by the iconic Memphis resident whose name is reflected in the law’s title, Elvis Presley). 

Prior to the ELVIS Act, Tennessee’s right of publicity law broadly held that “[e]very individual has a property right in the use of that person’s name, photograph, or likeness in any medium in any manner.”  Tenn. Code Ann. § 47-25-1103 (2021).  The ELVIS Act adds “voice” to the list of protected items.  HB 2091/SB 2096 § 4.  The Act defines “voice” as “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.”  Id.§ 3 (emphasis added).

The Act goes further, too, in expanding the scope of what acts create liability.  Prior to the ELVIS Act, a person would be liable for unauthorized use of a likeness “for purposes of advertising products, merchandise, goods, or services, or for purposes of fund raising, solicitation of donations, purchases of products, merchandise, goods, or services…”  Tenn. Code Ann. § 47-25-1105.  But the ELVIS Act expands liability to any person who “publishes, performs, distributes, transmits, or otherwise makes available to the public an individual’s voice or likeness” without authorization, regardless of purpose, and to any person who “distributes, transmits, or otherwise makes available an algorithm, software, tool, or other technology, service, or device” to produce a person’s voice or likeness without authorization.  HB 2091/SB 2096 § 6.  Although Tennessee’s law has an exemption for “fair use,” the ELVIS Act clarifies that the exemption only applies “to the extent such use is protected by the First Amendment.”  Id. § 10.

The bill passed unanimously and the ELVIS Act becomes effective as of July 1, 2024. Publicity rights are often a minefield for brands and advertisers.  Changes in technology, including the ability of AI to manipulate and mimic the images and voices of public figures, have accelerated concerns about the unauthorized exploitation of likeness rights, including AI generated images and videos appearing in advertisements or AI generated “deepfake” music.  We may see more bills like the ELVIS Act in the future to ensure that there is no need for suspicious minds when encountering a person’s likeness.