Last week, Tennessee Governor Bill Lee signed the Ensuring Likeness Voice and Image Security Act, affectionately known as the “ELVIS Act,” into law, which will take effect July 1, 2024.  The ELVIS Act supersedes Tennessee's Personal Rights Protection Act of 1984 (the “PRPA”), which prohibited the unauthorized commercial exploitation of a person's name, image and likeness.  (Footnote: the PRPA was enacted, in part, to recognize a post-mortem right of publicity in Tennessee following Elvis' death.)  Notably, the PRPA did not: (i) explicitly protect a person's voice (although, a person's likeness arguably includes their voice); and (ii) protect against the use of a person's likeness outside of a commercial context, such as using a person's likeness in deepfakes or in connection with AI technology.

The ELVIS Act addresses these two concerns with the PRPA.  First, the ELVIS Act provides that an individual has a property right in the use of that individual's name, photograph, voice, or likeness in any medium in any manner, and the ELVIS Act prohibits the unauthorized commercial exploitation of such individual property right.  Second, the ELVIS Act also provides for personal liability if a person 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.  Additionally, the ELVIS Act provides for personal liability if a 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.  Importantly, the ELVIS Act retains general exceptions for Fair Use and First Amendment protections.

Accordingly, through the ELVIS Act, Tennessee protects the unauthorized use of a person's likeness, including their voice, regardless of whether such use is commercial.   Moreover, Tennessee has opened the door for personal liability to individuals who make AI and related technologies available within the state of Tennessee.   Remedies for violating the ELVIS Act, include, but are not limited to, injunctive relief and actual damages (which may be trebled if the infringed individual is a member of the armed forces). 

So, what is the takeaway here?  Sophisticated parties were likely already clearing the commercial use of an individual's voice.  Now with the ELVIS Act, parties may also need to clear the use of an individual's voice (and other likeness) for purposes other than commercial uses, subject to exemptions for fair use and First Amendment protections.  Additionally, parties who use make available software and other tools with the purpose of producing a persona's likeness should also consider appropriate clearances or face potential liability.