Tennessee Legislature Sends Right of Publicity Bill to Governor’s Desk

By Jennifer E. Rothman
March 18, 2024

Tennessee’s right of publicity law has long been driven by the ghost of Elvis, and is now likely to replace its current statute with the almost inevitable passage of the appropriately titled ELVIS Act (the Ensuring Likeness, Voice, and Image Security Act of 2024) (HB 2091/SB 2096). Last week the bill was sent to the Governor for signature, after passing both the Tennessee House and Senate in unanimous votes. Governor Bill Lee is likely to sign the legislation as he expressed his support for the bill when it was introduced in January.

The bill was fast-tracked in light of increasing attention to concerns over artificial intelligence (AI) technology, particularly in the recording industry. Notably, Tennessee’s existing right of publicity statute does not include “voice,” but instead only extends claims to uses of a person’s “name, photograph, or likeness.” There remains an open question of whether Tennessee still has a common law right of publicity, which would address voice claims even if the statute were read not to do so. This bill seeks to address the omission of voice, but greatly expands the statute in other ways.

The bill is intended to entirely replace the existing Personal Rights Protection Act of 1984,  Tenn. Code. Ann. § 74-25-1101 et seq, which was originally passed largely to extend Elvis Presley’s publicity rights into the afterlife after several courts had suggested that his estate would have to rely solely on copyright, trademark, and false endorsement laws because Tennessee did not recognize a postmortem right of publicity/appropriation tort.

The ELVIS Act would significantly amend and broaden the existing statutory right of publicity law in Tennessee. I have created a redline version of the current statute to highlight the proposed changes which can be accessed here: Rothman Redline .  I summarize below the key aspects of the changes.

Voice: First, the ELVIS Act would add explicit protections against unauthorized uses of a person’s voice.  The proposed bill adds protections for voice throughout the existing statute. This is a useful and uncontroversial clarification/extension of publicity protections in the state. It is surprising that Tennessee, a major player in the recording industry, did not include voice in its original 1984 legislation, especially given that Elvis’s death was its main impetus.  It is high time this oversight was addressed. I do, however, note, as I did in recent responses to Congressional questions, that Tennessee’s common law likely extended such protections, and the statute could have been expansively interpreted to protect voice-based claims.     

The other changes to the law, however, are much more significant than the addition of voice-based claims. They greatly expand the sweep of Tennessee’s statutory publicity protections, and greatly reduce the exemptions from liability at the same time. I highlight some (but not all) of these major changes.

Broad Scope: The Personal Rights Protection Act of 1984 only barred uses “for purpose of advertising” and potentially uses on merchandise or in fundraising. Such a narrow statute would not cover AI-generated performances, it therefore is not surprising that the law broadens out the basis for liability. I note that to the extent Tennessee’s common law remains in place, which the statute suggests, liability was already broader than the statute.

Of particular relevance for AI-based concerns, the bill would add civil liability if a person “publishes, performs, distributes, transmits, or otherwise makes available to the public an individual’s voice or likeness.”  This provision does not limit liability based on context or to performances so seems to broadly sweep in uses of a person's name, photograph, likeness, or voice in news reporting, as well as documentaries, films, and books.  Liability does require “knowledge that use of the voice or likeness was not authorized.”

The bill would also extend liability to technology companies and other individuals by creating a civil action if a “person distributes, transmits, or otherwise makes available an algorithm, software, tool, or other technology, service, or device, the primary purpose [of which] is the production of a particular, identifiable individual’s photograph, voice, or likeness” with knowledge that such a use is unauthorized.

This provision is likely to sweep in not only technology companies, journalists, and other traditional content creators, but also ordinary people using online tools and sharing images or recordings (or simply “making them available”).  The requirement of knowledge may mitigate this extreme result, but it is too early to know whether a presumption of knowledge will be imputed in some contexts.

Reduced Exemptions: The current version of Tennessee’s right of publicity statute excludes as “fair uses” any use of a person’s name or likeness “in connection with any news, public affairs, or sports broadcast or account.” The proposed bill sweeps in much more speech then the current law, as described above, and also claws back these exemptions and those which the bill adds. 

The bill says all fair uses and exemptions are contingent and only fair “to the extent such use is protected by the First Amendment.” The bill does add additional exemptions (other than uses in news and sports), but because there is this initial caveat, their scope will likely remain unclear for a long time to come as courts try to figure out whether the First Amendment requires these exemptions. The potential added defenses include uses “[f]or purposes of comment, criticism, scholarship, satire, or parody.” And, of particular import to the film industry, an added exemption for “[a] representation of the individual as the individual’s self in an audiovisual work” unless the work “is intended to create, and does create, the false impression that the work is an authentic recording in which the individual participated.” This last “exemption” appears directed at being able to depict real people in movies and television shows when played either by actors or perhaps also those that use previously recorded clips. Other “exemptions” include those for “fleeting or incidental” uses or advertisements for works that otherwise fall into the exemptions.

Even the exemption for intermediary distribution is pared back in this bill so that owners and employees of media, including “newspapers, magazines, radio and television stations, billboards, and transit ads,” can be liable if they “reasonably should have known” the uses were unauthorized. The prior version required a higher standard of actual knowledge.

The focus on performance rights is also going to create conflicts with copyright law and will make copyright preemption an important and useful defense in instances of  uses of copyrighted works.

"Individual" v. "Person" and Recording Contracts. The proposed bill has a specific subsection that allows a “person”—read as record label—who has an “exclusive personal services” contract or “exclusive license to distribute sound recordings” for a particular “individual” to bring claims under the statute. The bill also fixes a potential statutory drafting error that could have excluded individuals from enforcing their own rights because the definition of person did not include “individual.” I am not aware of any cases raising this problem, but it still seems like a good fix.

Still a Transferability Morass. The revisions do not address the prior language suggesting that the rights are “freely assignable and licensable,” even while the person is alive. This raises the danger, as I have addressed at length elsewhere, that a person’s rights to their own name, likeness, and voice could be stripped away from them and owned by others. See Jennifer E. Rothman, The Inalienable Right of Publicity, 101 Georgetown L.J. 185 (2012).

Notably, however, the other proposed amendments to the statute seem to limit this danger by requiring that the authorization that determines liability must come from the “individual” themselves, what I dub the identity-holder, at least while they are alive and not from any other persons who might hold assignments or licenses. The statute is unclear about this but could be read as indicating that assignments are not actually possible inter vivos and even licenses will not extend rights to authorize uses without additional approval by the individual, other than in the context of recording contracts. These new amendments could add to the identity thicket, that I have documented, by setting up an additional layer of uncertain conflicts between identity-holders and possible publicity-holders or licensees. See Jennifer E. Rothman, Navigating the Identity Thicket, 135 Harvard L. Rev. 1271 (2022).

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This bill is likely to become law with an effective date of July 1, 2024. This will be just one of the many changes and additions to state right of publicity laws following in the wake of concerns over AI. The sheer number of state bills being considered makes it difficult to cover them all and challenging for each state to fully vet them. This frenzy of state laws will exacerbate the identity thicket that I have written about and may lend greater fuel to support a preemptive federal law in this area.