The Briefing: Tennessee’s ELVIS Act – Is This Attempt to Protect Musicians (and Record Labels) in the AI Era Enforceable?

Tennessee’s recent legislative move, the ELVIS Act (Ensuring Likeness, Voice, and the Image Security Act of 2024), has garnered attention for its efforts to address the challenges posed by artificial intelligence in the music industry. Signed into law on March 21, 2024, the ELVIS Act represents a big step by a state with a huge music industry presence to prevent the unauthorized use of artificial intelligence (AI)-generated musician soundalike content. But is it enforceable?

The ELVIS Act builds upon Tennessee’s existing right of publicity statutes, which traditionally safeguarded an individual’s (or a deceased individual’s) name, photograph, or likeness in any medium in any manner. One could argue that likeness included voice, but the ELVIS Act clarifies that a person’s voice is among the personal property rights this statute now protects.

Under the ELVIS Act, a person’s voice is broadly defined as any sound in a medium readily identifiable and attributable to a particular individual, regardless of whether it is the actual voice or a simulated version. This definition encompasses AI-generated imitations that replicate an individual’s voice with remarkable accuracy. It also comprises soundalikes, including Elvis impersonators and tribute bands.

The primary objective of the ELVIS Act is to prevent the unauthorized use of a person’s name, photograph, voice, or likeness for commercial purposes, including advertising, merchandise, and fundraising activities. Moreover, the bill imposes civil liability on individuals or entities knowingly distributing or transmitting an individual’s voice or likeness without proper authorization.

A notable aspect of the ELVIS Act is its potential impact on AI technology providers and companies specializing in voice replication. The legislation holds liable any entity that develops or distributes technology primarily intended for producing an individual’s voice or likeness without authorization. This provision is a deterrent against the proliferation of AI-generated content infringing on musicians’ rights.

Furthermore, the ELVIS Act expands the scope of potential plaintiffs in legal actions related to voice infringement. In addition to individual performers, the bill grants recording labels the right to pursue legal remedies for violations.

Previous federal court decisions have limited the scope of Tennessee’s right of publicity statute to the advertising or promotional context and excluded performances, sports broadcasts, websites, and creative works from its reach. The ELVIS Act appears to intentionally target creative works, such as the numerous A.I. soundalike sound recordings presently proliferating the Internet.

However, the broad language of the ELVIS Act raises questions regarding its compatibility with existing copyright law, particularly that portion of the Copyright Act that addresses soundalike recordings. While the statute aims to address creative works featuring AI-generated soundalikes, it may encounter challenges under Section 114(b) of the Copyright Act, which permits soundalike recordings. A publication by the U.S. Copyright Office specifically says that “under U.S. copyright law, the exclusive rights in sound recordings do not extend to making independently recorded ‘sound alike’ recordings.” And if this isn’t clear enough, the notes to Section 114 by the House Judiciary Committee provide as follows:

“Subsection (b) of section 114 clarifies that statutory protection for sound recordings extends only to the particular sounds of which the recording consists and would not prevent a separate recording of another performance in which those sounds are imitated….Mere imitation of a recorded performance would not constitute a copyright infringement, even where one performer deliberately sets out to simulate another’s performance as precisely as possible.”

It seems certain that numerous lawsuits will arise from the ELVIS Act, particularly regarding its interaction with federal copyright law. Defendants in such cases assert preemption, citing federal law’s authority in regulating copyright matters.

Learn more in the latest episode of The Briefing by the IP Law Blog.