IP Law Daily, PUBLICITY RIGHTS NEWS: Voices carry: Music industry-backed right of publicity bill signed into law in Tennessee, (Mar 22, 2024)

By Matthew Hersh, J.D.

The new legislation extends the right of publicity to the human voice and also adds protection against artificial intelligence sound-alikes.

Performing artists in Tennessee will now be entitled to protection for the distinctive aspects of their voices in addition to their name, image, and likeness under a bill signed into law yesterday by Governor Bill Lee. The new legislation, widely heralded by the music industry in Tennessee and nationwide, also extends protection of all statutory rights of publicity—including voices—against works created by artificial intelligence.

The bill, entitled the Ensuring Likeness Voice and Image Security Act, or ELVIS Act (the name is of course a homage to Tennessee’s most famous performer, Elvis), amends the existing Personal Protection Act of 1985 in several ways. First, the bill amends the property right defined in that act to cover the human voice, an expansion from the original law that protected only “name, photograph, or likeness.” Second, the bill now prohibits the use of another’s voice or likeness in all forms not authorized by the individual, an expansion from the original law that protected only against the use of another’s likeness in advertising or fundraising. Third, the person exposes to civil liability any person who “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.”

The bill makes Tennessee the first state to expressly ban artificial intelligence reproductions of human voices, although it is not the first state to extend protection more generally to the human voice. Bette Midler famously prevailed in a lawsuit in California against Ford Motor Company in the 1980s for using a sound-alike to perform Do You Want To Dance for a car commercial. “When a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product,” the California court held, “the sellers have appropriated what is not theirs and have committed a tort.”

The new law comes as the music industry is pressuring legislators on all fronts to combat the reproduction of human voices by artificial intelligence services. Among other things, the music industry has urged Congress to enact a federal right of publicity statute, require AI creators to be transparent about the material that is ingested into their data sets, and require that AI-generated content be labeled. The music industry has also brought their concerns to the courts, suing the company behind the AI chatbox “Claude” for its use of song lyrics without permission.

Tennessee has a long been in the center of debates over the protection of human likenesses—no doubt because of the famous (and lucrative) legacy of Elvis. The Personal Rights Protection Act of 1984 was originally enacted in order to clarify whether Tennessee law protected the right of publicity of celebrities even after their death. In 1980, the Sixth Circuit predicted that Tennessee courts, if they were to decide the issue, would conclude that the common law right of publicity did not survive death. The Second Circuit followed suit a year later. (Notably, the Second Circuit made clear that it would have decided Tennessee law differently than the Sixth Circuit would have, but felt it prudent to defer to the federal circuit court sitting in Memphis.) A Tennessee state court later issued a blistering opinion criticizing both courts and declaring that, even if it were not for the enactment of the statute, Tennessee common law extended the right of publicity after death. All three cases, not surprisingly, involved the King.

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