Tennessee to the Rescue: What you need to know about the ELVIS Act.
Will other states follow suit? Will the US Congress?
The dangers of artificial intelligence and deepfakes has been written about before in this space and in my other Substack, Creative Confidential. Over the past year or so, there has been a proliferation of deepfake audio using the voice models that can very closely simulate the voices of recording artists on songs they never recorded. The verisimilitude of the deepfakes is convincing. The pressing question then is exactly how can a rule be created to protect people’s name, image and/or likeness (“NIL”) from unauthorized deepfake content?
Traditionally, NIL laws are designed to protect against the unauthorized use of images of people, either in photographs or videos. The existing laws are much more geared to visual media. The law needed to catch up to technology.
It turns out there is a very simple solution: expand the existing NIL laws to include protections for the unauthorized use of a person’s voice.
Yesterday, Tennessee Governor Bill Lee signed into law the Tennessee Ensuring Likeness, Voice, and Image Security Act of 2024 (“ELVIS” or the “Act”)1. At the time this piece is being written, the final text of the Act was not yet publicly available according to the Tennessee Secretary of State’s office, which I find incredibly odd. However, once the text of the Act is publicly available, there will be a more detailed analysis to follow.
From the General Assembly’s website, an abstract of the Bill is as follows:
This bill adds to the present law by providing that any person who knowingly uses or infringes upon the use of an individual's voice, in any manner directed to any person other than such individual, 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 such individual's prior consent, or, in the case of a minor, the prior consent of such minor's parent or legal guardian, or in the case of a deceased individual, the consent of the executor or administrator, heirs, or devisees of such deceased individual, is also liable to a civil action.
The Act also provides that a person is liable in a civil action if that 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 an individual's photograph, voice, or likeness without authorization from 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.
Again, without the text of the Act it is impossible to know for certain, but there is a word noticeably absent in the abstract: knowingly. Generally, one would expect liability to attach if the prohibited conduct is done knowingly (i.e. liability exists if one knowingly distributes, transmits or otherwise makes available……). What if the defendant in such a civil action had no actual or constructive knowledge that the voice being used was that of a real person who did not consent? Without the inclusion of a “knowing” element, this almost sounds like a strict liability statute. Again, once the final text is available, we will know.
One would expect California or New York to lead the way on this issue in terms of legislation to address the deepfake problem. Tennessee, however, is undeniably now the center of the music industry.
The Bill passed both chambers of the General Assembly unanimously: 93-0 in the House and 30-0 in the Senate.
What’s truly remarkable is that this bill was introduced into the Tennessee General Assembly less than sixty days ago on January 24, 2024, and it has already been signed by the governor. For anyone familiar with the glacial pace at which most deliberative bodies work, the speed with which ELVIS Act passed and was signed into law is astonishing.
Stay tuned. Much, much more to come on this topic.
Those legislators love their acronyms don’t they?
J. Bryan Tuk, Esq. is the principal of Tuk Business & Entertainment Law. In addition to twenty five years of private practice as an attorney, Bryan is also a professional musician and producer, and a member of The Recording Academy and the American Society of Composers and Producers.