Tennessee
Much of Tennessee’s law on the right of publicity has been driven by the ghost of Elvis Presley. So it is no surprise that in 2024 Tennessee’s complete overhaul of its statutory right of publicity was titled the ELVIS Act. This sweeping law (effective July 1, 2024) replaced the 1984 statute that itself had been adopted primarily to guarantee that Elvis’s publicity rights would continue after his death. The new law’s primary objectives were to add “voice” to the statute and to ensure that the state law addressed concerns about AI-generated digital replicas.
Statute
YES
Tennessee provides a statutory right of publicity under the ELVIS Act (the Ensuring Likeness, Voice, and Image Security Act of 2024). It provides “a property right in the use” of an “individual’s name, photograph, voice, or likeness.”
The rights are considered “freely assignable and licensable.” The right is violated when an “individual’s name, photograph, voice, or likeness” is used “for purposes of advertising products, merchandise, goods, or services, or for purposes of fundraising, solicitation of donations, purchases of products, merchandise, goods, or services” without consent.
The right is also notably violated (as of July 2024) when 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” or 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 a particular, identifiable individual’s photograph, voice, or likeness, with knowledge that” is unauthorized.
Violation of the right gives rise to both a civil action and criminal liability (a misdemeanor offense). The law provides treble damages and attorney’s fees to prevailing members of the armed forces. The statute also allows for the destruction of goods.
The 2024 law also extends enforcement rights to those who have personal services contracts with recording artists or to distribute their sound recordings even if the person does not hold the individual’s publicity rights.
Common Law - Right of Publicity
LIKELY YES/UNCLEAR
Tennessee courts have held that there is a common law right of publicity and that the right is descendible. The ELVIS Act expressly states that the remedies are meant to be “cumulative” and “in addition to any other provided for by law.” Nevertheless, federal courts have held that the statutory right (at least the 1984 version) supplants the common law right, and state courts have not yet disagreed.
One Tennessee appellate court held that the prior publicity statute does not limit any rights retroactively, but did not decide its prospective effect.
State ex rel. Elvis Presley Intern. Mem’l Found. v. Crowell, 733 S.W.2d 89 (Tenn. Ct. App. 1987)
Marshall v. ESPN, Inc., (6th Cir., Aug. 17, 2016)
Common Law - Right of Privacy-Appropriation Tort
LIKELY YES
Tennessee recognizes a right of privacy and Prosser’s articulation of the privacy torts, including the appropriation of a person’s “name or likeness.” It is unclear how this common law tort interacts with the statutory regime under the ELVIS Act.
West v. Media General Convergence, Inc., 53 S.W.3d 640 (Tenn. 2001)
Post-Mortem Right
YES
The statute provides postmortem rights without regard to whether individuals “commercially exploited” their identity during their lifetime. The postmortem period is for ten years after death, at which time the postmortem right can terminate if there is no commercial exploitation for two subsequent years. Although it is not entirely clear, it appears that if commercial exploitation continues after the ten-year period, postmortem rights could last indefinitely under the statute.
Tennessee courts have also held that there is a common law right of publicity and that this continues postmortem, although the highest court of the state has not ruled on the matter. It is also not clear whether the statute preempts this common law right. If there is a common law postmortem right, its boundaries are unclear.
State ex rel. Elvis Presley Intern. Mem’l Found. v. Crowell, 733 S.W.2d 89 (Tenn. Ct. App. 1987)
Elvis Presley Enters. v. Elvisly Yours, Inc., 2 U.S.P.Q.2d 1660 (6th Cir. 1987)
Limits on Right
Does the law require the plaintiff or identity-holder to be a celebrity or have a commercially valuable identity?
LIKELY NO
Tennessee courts and the state statute reject a requirement of commercial exploitation in the context of postmortem rights, and have not considered the question in the context of inter vivos rights.
Does the law protect persona?
UNCLEAR
At least one federal court has applied the state right of publicity statute to lookalikes and to band names that evoke or represent individuals. The ELVIS Act makes clear that it covers digital replicas and voice clones that are not uses of an actual person’s performance, likeness, or voice but it is not clear whether this would extend beyond deceptive uses that appear or sound authentic.
Apple Corps. v. A.D.P.R., Inc., 843 F. Supp. 342 (M.D. Tenn. 1993)
Is Liability Limited to Uses on Commercial Advertising or Commercial Speech?
NO
The prior statute was more limited in scope to advertising, uses on merchandise, and for fundraising, but the 2024 ELVIS ACT also allows liability without regard to commercial context for making available a person’s voice or likeness or making available technology that has the “primary purpose or function” to make available a person’s likeness or voice. This appears only limited by the scope of the First Amendment and is a significant expansion in scope of the statutory right from its 1984 version.
Under the prior statute, federal courts had limited statutory claims to the context of advertising or promotion, excluding performances, sports broadcasts, websites, and creative works from its reach. The current statute cannot be so interpreted.
Marshall v. ESPN, Inc., 111 F.Supp.3d 815 (M.D. Tenn. 2015)
Clark v. Viacom Intern., Inc., 2014 WL 1934028 (M.D. Tenn. 2014)
Gauck v. Karamian, 805 F. Supp.2d 495 (W.D. 2011)
Apple Corps. v. A.D.P.R., Inc., 843 F. Supp. 342 (M.D. Tenn. 1993)
Statutory Defenses
The statute enumerates a number of “fair use[s]” but limits them only to instances in which “such use[s] [are] protected by the First Amendment to the United States Constitution.” So with the significant caveat that these exemptions may not be applicable without independent First Amendment analysis, here are the key enumerated potential fair uses:
- uses “in connection with news, public affairs, or sports broadcast or account”
- uses “for purposes of comment, criticism, scholarships, satire, or parody”
- “A representation of the individual as the individual’s self in an audiovisual work, as defined under 17 U.S.C. § 101, unless the audiovisual work . . . is intended to create, and does create, the false impression that the work is an authentic recording in which the individual participated”
- “fleeting or incidental” uses
- advertising for one of the enumerated uses
The statute exempts owners and employees of any medium used for advertising, if they could not have reasonably known that the use at issue was unauthorized. This expands from the actual knowledge standard of the 1984 Act. The statute also states that a use will not be for “purposes of advertising or solicitation solely because the use is commercially sponsored or contains paid advertising.”
First Amendment Analysis
Tennessee sits in the Sixth Circuit which has had occasion to consider the interaction between the First Amendment and the right of publicity in the context of other states’ laws. The Sixth Circuit has applied the “Rogers/relatedness/Restatement Test” for use of celebrity’s names as the title of expressive works. See Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989). Under Rogers, the use of a celebrity’s name in a work’s title is protected by the First Amendment unless the title is “wholly unrelated” to the work or is “simply a disguised commercial advertisement for the sale of goods or services.” It is possible that this approach will no longer be embraced given the Supreme Court’s decision in Jack Daniel’s Properties v. VIP Prods., 599 U.S. 140 (2023), in which at least some justices expressed distaste for a similar but distinct analysis in the context of trademark cases. The Sixth Circuit has also applied a transformativeness analysis to such First Amendment inquiries, similar to that adopted by the California Supreme Court in Comedy III Prods. v. Gary Saderup, Inc., 21 P.3d 797 (Cal. 2001), but that analysis may also be on less stable ground given the Supreme Court’s decision in Andy Warhol Foundation for the Visual Arts v. Goldsmith, 598 U.S. 508 (2023), which narrowed the transformativeness analysis in the context of copyright law.
Parks v. LaFace Records, 329 F.3d 437 (6th Cir. 2003)
ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915 (6th Cir. 2003)
Other Commentary
Several courts have held that Tennessee’s statutory right of publicity is preempted when it is based on the use of copyrighted works. Such preemption analysis will likely have significantly more import and traction with the adoption of the much broader ELVIS Act.
Wells v. Chattanooga Bakery, Inc., 448 S.W.3d 881 (Tenn. Ct. App. 2014)
Stanford v. Caesars Entertainment, Inc., 430 F. Supp.2d 749 (W.D. Tenn. 2006)
A Tennessee appellate court held that a parent’s consent to the taking of a minor’s photograph and its use in advertising was adequate, even though the advertisement was used decades later and in new contexts without any consent by the subject of the photos.
Wells v. Chattanooga Bakery, Inc., 448 S.W.3d 881 (Tenn. Ct. App. 2014)
Federal courts have assumed that Tennessee’s right of publicity statute is exempted from the CDA § 230 because it is understood as an intellectual property law.
Gauck v. Karamian, 805 F. Supp.2d 495 (W.D. Tenn. 2011).
Last updated on March 3rd, 2025