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April 30, 2024

ELVIS Act Puts Users of Artificial Intelligence on Notice

On March 21, 2024, Tennessee amended the Personal Rights Protection Act of 1984 (1984 Act) by passing the Ensuring Likeness Voice and Image Security (ELVIS) Act. This makes Tennessee the first state to pass a law to protect musicians from digital replicas of their voice through the use of artificial intelligence (AI). Several groups in the entertainment industry, such as Broadcast Music Inc. and the Screen Actors Guild, support the ELVIS Act.

In this day and age, it is easy to replicate the voices of singers through various AI platforms. The ELVIS Act is an important step to protect the voice and likeness of performers from the misuse of AI. Last year, the anonymous TikTok user known as Ghostwriter created a song titled “Heart on My Sleeve” featuring the AI-generated vocals of the musicians Drake and the Weeknd. The song went viral, and for a time, it was unclear to the general public that the song was not created by the musicians themselves. This resulted in takedown notices to digital service providers. Recently, Drake published the song “Taylor Made Freestyle,” which features AI vocals from the musicians Snoop Dogg and the late Tupac Shakur. This, too, was taken down, following a cease-and-desist letter from Tupac’s estate.

Causes of Action

The 1984 Act did not grant a cause of action for the misuse of an individual’s voice. The ELVIS Act defines “voice” 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.” With the expanded causes of action provided by the ELVIS Act, a person may be liable if the person:

  • “. . . knowingly uses or infringes upon the use of an individual’s name, photograph, voice, or likeness in any medium, in any manner. . . .”
  • “. . . publishes, performs, distributes, transmits, or otherwise makes available to the public an individual’s voice or likeness, with knowledge that the use . . . was not authorized. . . .” or
  • “. . .  distributes, transmits, or otherwise makes 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.”

Fair Use

The 1984 Act previously deemed it fair use for an individual’s name, photograph, or likeness to be used in the limited manner specified in the 1984 Act. Under the ELVIS Act, an individual’s voice now receives the benefit of this fair use exception.

Liabilities

Expanding the remedies under the 1984 Act, the ELVIS Act allows courts to grant injunctions for the unauthorized use of an individual’s voice. And when an individual has entered into a contract as a recording artist or an exclusive license to distribute sound recordings, the individual retains the right to bring an action under the ELVIS Act.

Generally, as explained above, the ELVIS Act sets forth liability for those who, without authorization: (a) transmit an individual’s voice knowing there is no authorization; or (b) make a technology available that produces an individual’s voice. Although not expressly addressed by the ELVIS Act, this type of liability could create exposure for violators located outside of Tennessee. For example, a non-Tennessee company could possibly face liability under the ELVIS Act by performing this type of transmission in Tennessee or making this type of technology available in Tennessee.

Looking Ahead

The ELVIS Act demonstrates the direction that state and federal law may soon take to protect the image, likeness, and voice of musicians, actors, and other individuals from the misuse of AI. Here are a few legal tips to consider before implementing or using AI:

  • Service providers, such as marketing agencies, should implement new due diligence and clearance practices consistent with the ELVIS Act. 
  • Before hiring a vendor to create or provide an AI-generated voice, the hiring party should consider adding provisions to the vendor’s contract that: 
    • prohibit the vendor from conducting the types of activities barred by the ELVIS Act or other laws applicable to this type of AI content; and 
    • indemnify the hiring party from damage and losses arising from the vendor’s violation of the covenant.  
  • Businesses should be cautious when using AI tools to create marketing materials, exercising special care with respect to the use of any voice or image that resembles or replicates the voice or image of a celebrity or famous person.
  • Businesses should be cautious before publishing tracks, songs, vocals, and videos that simulate individuals.

If you have any questions about the content of this alert, please contact Renato Smith, Data Security & Technology Practice Area co-chair, at rsmith@barclaydamon.com; Amie Mbye, law clerk, at ambye@barclaydamon.com; or another member of the firm’s Data Security & Technology Practice Area.
 

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