The use of artificial intelligence (AI) to create various forms of media raises interesting legal issues relating to the protection of intellectual property. Generative AI is being used to create songs that have vocals and other characteristics that mimic the sound and style of famous musicians. In 2023, AI was used to create a song that listeners would understand was created by musicians Drake and The Weeknd. This song has come to be known as the “Fake Drake.” How deepfakes like the Fake Drake implicates an artist’s rights of publicity has been an open question. Recently, however, Tennessee answered with a statute that is designed to protect against the misuse of AI to impersonate a musician’s voice.
Tennessee’s music industry supports more than 60,000 jobs across the state and contributes to $5.8 billion to the nation’s GDP. On July 1, 2024, Tennessee’s Ensuring Likeness Voice and Image Security (ELVIS) Act goes into effect. The goal of the ELVIS Act is to protect songwriters, performers, and music industry professionals’ voices from unauthorized cloning with AI technology. Traditional statutes protecting against the misappropriation of a person’s name, image, and likeness (NIL) do not specifically address generative AI tools that allow users to make unauthorized works that impersonate an individual’s voice. The ELVIS Act is the first legislation of its kind to make “voice” a right of publicity protected from improper impersonation with AI technology.
The magic music creates is unique, commercially valuable, and provides a highly important cultural contribution. The rights of publicity protected by traditional NIL statutes are particularly vulnerable in light of the power of generative AI technology, especially when it is misused by bad actors to create deepfakes, soundalikes, and improperly profit or create chaos.
Notably, this is not the first time Tennessee’s legislators have taken steps to protect artists’ publicity rights. Tennessee’s Personal Rights Protection Act (PPRA) of 1984 was enacted to protect the post-mortem NIL of Tennessee’s most famous singer and songwriter, Elvis Presley. Tennessee’s legislators understood the importance of preserving the unique talent embodied in the King’s persona and ensuring that any commercial exploitation of those rights be exclusively reserved to his heirs. The PPRA prohibited using a person’s NIL for commercial purposes, and created civil and criminal actions for the unauthorized use of those rights. However, in 1984, when the PPRA was enacted, the potential misappropriation of a person’s voice with AI was not a consideration.
Below are some key takeaways relating to the ELVIS Act:
- The ELVIS Act marks a groundbreaking shift by making a person's voice a protected property right. "Voice" is broadly defined by the ELVIS Act to cover an individual's authentic voice and any simulated versions.
- The ELVIS Act protects an individual’s fundamental right to control the commercial use of their own identity, which now includes name, image likeness, and Voice (NIL +V).
- The Act makes it unlawful to exploit an individual’s identity for commercial gain without the necessary authorization, including endorsements, advertisements, and media misrepresentations.
- The Act creates additional safeguards to preserve privacy in an era where digital personal data is a valuable asset.
- Violations of the ELVIS Act can result in civil lawsuits and criminal prosecution as a Class A misdemeanor. This offense carries penalties of up to 11 months and 29 days of incarceration and fines reaching $2,500.00.
- In light of the ELVIS Act, music labels holding contracts with artists may pursue legal action against infringing parties. However, it is important to note that these remedies are exclusive to Tennessee residents.
Rights of publicity protections, including safeguarding individuals from unauthorized commercial exploitation of their NIL, vary among the states. Approximately forty states have enacted or proposed NIL legislation. The lack of uniformity among the states’ NIL laws complicates the enforcement of an individual's ownership over these rights. While Tennessee's ELVIS Act isn't the pioneer in including voice protection (NIL+V), as California has long-established NIL+V safeguards, it notably stands as the first to explicitly guard against AI-based infringements on an individual's rights to their own NIL+V.
A singer’s voice is at the core of their unique expression, and legislators around the country are focused on addressing this issue to protect against misusing AI to create soundalikes in the entertainment and music industries. For example, California introduced a bill earlier this year that would create liability for the “simulation of the voice or likeness” of a “readily identifiable” individual (i.e., a celebrity) through the use of digital technology. And, Kentucky has proposed a new law protecting commercial rights in “the use of names, voices, and likenesses.”
Similar bills have been recently introduced into Congress. Specifically, the Nurture Originals, Foster Art, and Keep Entertainment Safe (NO FAKES) Act of 2023, establishes liability for people, companies, and platforms that produce or distribute unauthorized AI-generated digital replicas in an audiovisual work or sound recording. Also, the No Artificial Intelligence Fake Replicas and Unauthorized Duplications Act (No AI FRAUD Act) would establish a federal right in an individual’s likeness and voice.
AI’s voice synthesis technology, or “voice cloning,” has the power to mislead fans and diminish the value of artist’s talent, or worse – generate a deepfake of an artist making a statement that is discriminatory or abusive. When technology can be used to replicate a person’s voice for improper commercial motives or potentially nefarious purposes, legislation should be enacted to mitigate the harm that can result from abusing AI tools, and in the case of the ELVIS Act, preserve the value and contributions of music to our country. This is precisely what the ELVIS Act is designed to accomplish.
As AI technology advances, it will undoubtedly have a significant impact on the arts, particularly the music industry. Legal protections for NIL+V encourage creativity and innovation by providing artists, creators, and entertainers with the confidence that their personal identity will be respected and protected in commercial endeavors. This fosters a vibrant creative ecosystem where individuals feel empowered to express themselves without fear of exploitation.
In conclusion, legislation that protects musicians’ names, images, likenesses, and voices is important in the age of AI. Such laws not only safeguard personal rights, but thwart exploitation, ensure equitable compensation, foster creativity and innovation, bolster trustworthiness in powerful technologies, such as AI, and address the challenges of our digital era. To learn more about the ELVIS Act or inquire about potential violations of artists' publicity rights through AI usage, or seek guidance on safeguarding your name, image, likeness, and voice rights, please reach out to the authors for further assistance.
