Arent Fox LLP
06/28/2024 | News release | Distributed by Public on 06/28/2024 11:54
ELVIS is Alive as Tennessee is First to Implement Rights of Publicity Protections Against AI Clones, Deepfakes, and Impersonations
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More specifically, GenAI-produced "voice clones," commonly seen in applications such as TikTok have become prevalent, frequently confusing fans and the public as to who performed or produced the relevant song or sound.
What is the ELVIS Act?
Initially proposed in January by the governor of Tennessee, "the ELVIS Act, short for the 'Ensuring Likeness Voice and Image Security Act of 2024,'" will take effect in Tennessee on July 1.
Given Tennessee's illustrious musical heritage and its music industry contributing over $5.8 billion to its GDP, and supporting over 60,000 jobs, it is fitting that this musical hub be the state to pioneer expansive legislation that will serve to protect its artists' and songwriters' publicity rights from potential exploitation, including via use of GenAI technologies.
The ELVIS Act dramatically broadens personality rights protections by adding "voice" to a law that had safeguards for name, image, and likeness. Voice is broadly defined in the Act 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." Such comprehensive coverage offers artists and musicians greater control over their rights of publicity and intellectual property as well as their remedies against the unauthorized use of their voice, including via GenAI technologies. The definition addresses the important reality of GenAI voice synthesis technologies, acknowledging that a voice does not need to be the actual sound made by an individual but can also include simulations that are readily identifiable and attributable to a particular individual.
The implementation of the ELVIS Act marks an essential expansion in intellectual property and publicity rights protections that go beyond the traditional parameters of name, image, and likeness, ensuring that the law covers the unauthorized use of an artist's actual voice and AI-generated impersonations of their voice.
Certain Protections and Limitations
Protection for All Ages
Notably, the ELVIS Act aims to safeguard the rights of minors. Failure to obtain consent from a minor's parent or legal guardian prior to using their voice may result in civil liability. Civil liability may also result upon failure to obtain consent from a minor's parent or legal guardian in advance of making available to the public a minor's voice or likeness with the knowledge that use of the voice or likeness had not previously been authorized. Finally, one may incur civil liability for making an algorithm, software, tool or other technology, service, or device with the primary purpose of producing a minor's voice or likeness absent express consent from such minor's parent or guardian.
Protection for Record Companies
In addition to protecting musicians, the ELVIS Act extends protection to other music industry players. For instance, record companies, producers, and other entities with contracts for a recording artist's exclusive personal services or exclusive licenses to distribute sound recordings that capture an artist's audio performances may bring civil actions to enforce the artist's expanded publicity rights under the ELVIS Act.
Use It or Lose It
The ELVIS Act imposes certain restrictions pertaining to post-mortem rights relating to an individual's voice. For instance, rights over the commercial use of one's voice or likeness may be relinquished if the individual, or in the case of a deceased individual, their executor, heirs, or devisee, does not utilize these rights. Specifically, if non-use can be substantiated for a span of two years following an initial 10-year period after the person's death, the rights associated with the individual will be deemed void. The Act defines the term "use" to include the "commercial availability of a sound recording or audiovisual work in which the individual's name, photograph, voice, or likeness is readily identifiable."
Remedies and Liability Under the ELVIS Act
The ELVIS Act empowers claimants to seek injunctive relief to prevent unauthorized use of their voice, and to move to destroy all materials developed and/or distributed in furtherance of violating their rights. Furthermore, plaintiffs in civil suits under the ELVIS Act are entitled to actual damages suffered and any profits attributable to the use or infringement which are not taken into account in computing the actual damages. In cases involving knowing use or infringement, the entitled recovery may be trebled and include reasonable attorney fees.
Further, the ELVIS Act provides harmed individuals with three separate causes of action that can be brought for unauthorized use of an individual's voice or likeness, only further emphasizing Tennessee's commitment to protecting rights of publicity in the wake of GenAI. Potential liability from this trio could arise from the following:
1. Advertising and Fundraising
Under the first cause of action, any person or company that knowingly uses or infringes upon the use of an individual's name, photograph, voice, or likeness in any medium for purposes of advertising products, merchandise, goods, or services or for purposes of fundraising, solicitation of donations, purchases of products, merchandise, goods, or services, without the individual's prior consent, could be held liable. This could have sweeping implications across a litany of industries, with the marketing and advertising industry perhaps being first and foremost. Those in that space are encouraged to exercise ample caution when deploying voices - as defined by the ELVIS Act - through any medium, to avoid landing on the wrong side of a lawsuit.
2. Unauthorized Publication
Under the second cause of action, a claim can be made against anyone who 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. This seems to narrowly target more intentional or even malicious violations of the law given the knowledge qualifier. However, it remains to be seen how this provision will be interpreted.
3. Technology Misuse
Rounding out the trio, individuals have a cause of action against anyone that 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. This could have significant consequences for software and technology companies - particularly those developing and utilizing GenAI tools - given its focus on technologies with a primary purpose of production.
In addition, the ELVIS Act notably narrows certain defenses and exemptions, with limitations touching on fair use and protections under the First Amendment.
Finally, and significantly, the ELVIS Act maintains in effect the criminal liability section of the pre-existing law that provides any person who commits "unauthorized use" commits a Class A misdemeanor. At present, Class A misdemeanor charges in Tennessee carry penalties that include up to one year of jail time and/or fines up to $2,500.
Takeaways
This Tennessee law enters the fray on the heels of other regulatory action and increased oversight in the realm of GenAI impersonation attempts, indicating that regulators and lawmakers at the state and federal levels are more focused now than ever on curbing scammers and impersonation attempts. For instance, the Illinois House of Representatives recently passed HB 4875, known as the AI Digital Replica Protections Act, which updates the state's existing Right of Publicity law to directly tackle GenAI works and digital replicas and establish enforcement mechanisms for an individual whose identity is misappropriated by GenAI. The enactment of the ELVIS Act and introduction of the bill in Illinois may signal a wave of similar state laws in the backdrop of pending federal legislation aimed at protecting the rights of individuals in the wake of AI.
As the ELVIS Act and laws like it continue to be proposed and signed into law, those in the music industry and other highly regulated sectors are urged to remain cognizant of the ever-changing legal landscape in which they work. The ArentFox Schiff Music and AI industry groups are monitoring developments and will continue to provide updates as they arise. Please contact your attorney or any author with questions or for additional information.