The king is dead; Long Live the King: Tennessee's Updated Right to Publish Law | Seyfarth Shaw LLP


Tennessee is among the states that regulate the use of artificial intelligence to manipulate a person's likeness in different ways. On March 21, 2024, Governor Bill Lee said “Thank you” to the Tennessee Legislature and signed the Ensuring Likeness, Voice, and Image Security (“ELVIS”) Act of 2024, HB 2091/SB 2096 Updates Tennessee's right to law Publication. The new law is groundbreaking as Tennessee goes beyond other states that regulate AI-generated, sexually explicit “deepfakes.” The ELVIS Act represents the most comprehensive prohibition to date on the unauthorized use of a person's voice or image.

The right of publicity (sometimes called the right of privacy) is a patchwork of laws that vary from state to state and consist of both statutory and common law. The general purpose of such laws is to prevent the unauthorized commercial use of a person's likeness. Many states, including Tennessee, provide protection for the deceased (which, in the case of Tennessee, was primarily established by the famous Memphis resident whose name is reflected in the law's title, Elvis Presley).

Before the ELVIS Act, Tennessee's publicity law was broadly: “[e]Each individual has a proprietary right to the use of that person's name, photograph or likeness in any media and in any manner.” Tenn. Code Ann. § 47-25-1103 (2021). The ELVIS Act adds “voice” to the list of protected items. HB 2091/SB 2096 § 4. The law defines “voice” as “a sound in a medium that is easily identifiable and attributable to a specific person, regardless of whether the sound contains the actual voice.” or a simulation of the voice of the individual.” Id.§ 3 (emphasis added).

The law goes one step further by expanding the scope of actions that give rise to liability. Before the ELVIS Act, a person was liable for the unauthorized use of an likeness “for the purpose of advertising any product, merchandise, merchandise, or service, or for the purpose of raising funds, soliciting donations, or purchasing any product, merchandise, merchandise, or service…” Tenn . Code Ann. § 47-25-1105. But the ELVIS Act extends liability to any person who “publishes, performs, distributes, transmits, or otherwise makes available to the public the voice or likeness of an individual without authorization,” regardless of the purpose, and to any person that “distributes, transmits or otherwise makes available to the public.” otherwise makes available any algorithm, software, tool or other technology, service or device to generate the voice or likeness of any person without authorization. HB 2091/SB 2096 § 6. Although Tennessee law provides a “fair use” exception, the ELVIS Act clarifies that the exception applies only “to the extent such use is protected by the First Amendment.” ID. § 10.

The bill passed unanimously and the ELVIS Act will come into force on July 1, 2024.

Advertising rights are often a minefield for brands and advertisers. Changes in technology, including AI's ability to manipulate and mimic the images and voices of public figures, have increased concerns about the unauthorized exploitation of likeness rights, including AI-generated images and videos appearing in advertisements, or AI-generated “deepfake” music. We may see more bills like the ELVIS Act in the future to ensure that there is no suspicion of suspicion when encountering a person's likeness.