Tennessee’s ELVIS Act Expands Publicity Rights for Individuals’ Voices & Protects Against AI Misuses

Client Alert

On March 21, 2024, Tennessee Governor Bill Lee signed into law the Ensuring Likeness, Voice, and Image Security (ELVIS) Act of 2024, expanding the State’s statutory right of publicity to include an individual’s voice and guarding against AI misuses.

The ELVIS Act updates Tennessee’s Personal Rights Protection Act of 1984,1 which provided statutory protections for individuals’ property rights in their name, photograph and likeness “in any medium in any manner”2—but which did not explicitly protect individuals’ voices. In a move befitting the state that is home to Nashville’s “Music City,” the ELVIS Act extends protections for individuals’ voices “regardless of whether the sound contains the actual voice or a simulation of the voice of the individual.”3

The Act creates civil liability when:

  • Any person “knowingly uses or infringes” upon an individual’s rights in his or her name, photograph, voice or likeness for purposes of advertising goods or services or fundraising/soliciting donations, among other purposes;4
  • Any person “publishes, performs, distributes, transmits or otherwise makes available to the public an individual’s voice or likeness” with knowledge that the use was unauthorized;5 and
  • Any 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 the use was not authorized. 6

The ELVIS Act builds upon existing law7 by empowering courts to enjoin unauthorized uses of an individual’s voice8 and permits claimants to recover actual damages and any additional profits attributable to that infringement.9 It also allows recording artists personally to pursue claims under the Act even if they have “entered into a contract for . . . exclusive personal services as a recording artist or an exclusive license to distribute sound recordings that capture [that] individual's audio performances.”10

Finally, the ELVIS Act adds to and makes more explicit a “fair use” carve-out “[t]o the extent such use is protected by the First Amendment to the United States Constitution,” such as when the use of a name, photograph, voice or likeness is made “[f]or purposes of comment, criticism, scholarship, satire, or parody.”11 It also expands liability for owners and employees of “any medium used for advertising, including, but not limited to, newspapers, magazines, radio and television stations, billboards, and transit ads” who publish any advertisement or solicitation in violation of the Act if they knew12—or “reasonably should have known”13—about the unauthorized use.

These changes to existing law have the potential to expand significantly civil liability for infringing uses to not just the companies and individuals that may be directly involved in creating them, but also the technology companies that make the underlying technology available and the platforms that publish the offending content. The Act can thus provide artists and individuals with a powerful tool to combat infringements, with practical impacts extending beyond any one violation.

That said, potent defenses remain available for companies and individuals that may be accused of violating the Act. The “fair use” exceptions—the contours of which Tennessee courts will likely be called upon to clarify—protect journalistic and other expressive content. And, in the case of copyrighted works, copyright preemption can provide an important defense to this state-law claim.

The ELVIS Act goes into effect on July 1, 2024.

1 Tenn. Code Ann. § 47-25-1101.

2 Tenn. Code Ann. § 47-25-1103(a).

3 https://www.capitol.tn.gov/Bills/113/Amend/HA0578.pdf at p.1.

4 Id. at p. 2.

5 Id. at p. 2.

6 Id. at pp. 2-3.

7 See Tenn. Code Ann. § 47-25-1106(a).

8 https://www.capitol.tn.gov/Bills/113/Amend/HA0578.pdf at p. 3.

9 Tenn. Code Ann. § 47-25-1106(d)(1).

10 https://www.capitol.tn.gov/Bills/113/Amend/HA0578.pdf at p. 3 (“Where a person has entered into a contract for an individual's exclusive personal services as a recording artist or an exclusive license to distribute sound recordings that capture an individual's audio performances, an action to enforce the rights set forth in this part may be brought by the person or the individual.”).

11 Id. at pp. 3-4.

12 Tenn. Code Ann. § 47-25-1107(c).

13 https://www.capitol.tn.gov/Bills/113/Amend/HA0578.pdf at p. 4.



pursuant to New York DR 2-101(f)

© 2024 Manatt, Phelps & Phillips, LLP.

All rights reserved