A new Tennessee law aimed at protecting artists from voice imitation by AI has been widely praised by the music industry, but some legal experts say the law could have unintended consequences. I am concerned that this is an “overreaction.''
Less than a year after a fake Drake song created using a new artificial intelligence tool took the music world by storm, Tennessee lawmakers announced last month that they could use just that scenario: using the person's own voice. enacted the first law in the nation aimed at preventing the use of a person's voice without permission. permission. The ELVIS Act (Ensuring the Security of Like Voices and Images) does this by expanding the state's protection against unauthorized use of a person's likeness, known as the right of publicity.
The passage of the new law was welcomed throughout the music industry. Mitch Glazier of the Recording Industry Association of America called it an “incredible result.” Harvey Mason Jr. of the Recording Academy called it a “groundbreaking achievement.” David Israelite of the National Music Publishers Association called it “an important step forward.” Music artists who have had their voices used without their permission likely share that sentiment.
However, opinions are divided among legal experts. Jennifer Rothman, a law professor at the University of Pennsylvania and one of the nation's top experts on publicity rights, sounded the alarm during a panel discussion in Nashville last week, calling Tennessee's new law unnecessary and a “rush.” He warned that it had been enacted. Law.
“We don't want a momentary overreaction to lead to the passage of legislation that makes the situation even worse, and that's what's happening now,” Rothman told his fellow panel members and the audience. “A number of serious concerns have been raised about the ELVIS Act, particularly regarding its broad liability and speech limitations.”
To combat AI voice cloning, the ELVIS Act makes a number of important changes to the law. The most direct would be to expand the country's existing right of publicity protections to explicitly include someone's voice as part of their likeness. But the new law also extends it in ways that have not received much attention, such as adding a broader definition of who can be sued for what.
Joseph Fishman, a law professor at Vanderbilt University who has been closely following the bill, said its broad language “covers a wide range of harmless practices that no one considers to be serious problems to solve.” It may include tribute bands, interpolations, or simply expressions. Sharing photos that celebrities have not authorized.
“The range of conduct that gives rise to liability is enormous,” Fishman said. signboard. “All the coverage of this law has focused on deepfakes and digital replicas, and while they will certainly be reported on, the law as written goes further.”
Here's why: Historically, publicity rights in the United States have been largely limited to commercial contexts, such as advertising that uses celebrity likenesses to appear to endorse a product. Singer Bette Midler once famously sued Ford Motor Company over a series of commercials that featured vocals by singers impersonating Midler.
The new law effectively removes that commercial restriction. Under the ELVIS Act, anyone who knowingly “makes available” someone's likeness without permission can face lawsuits. It also broadly defines protected speech as any sound that is “readily identifiable and attributable to a specific individual.”
If you're a music artist looking to sue over a song that uses a fake version of your voice, these changes are a nice change. Because the old concepts of publicity rights probably don't apply in that scenario. But Fishman said there is serious potential for collateral damage beyond the intended target.
“There's nothing that limits the output of AI, nothing that limits it to deceptive uses,” Fishman said. “A lead singer in an Elvis tribute band who sings as convincingly as The King certainly seems to fit this definition. So do Elvis impersonators.”
In an “even more extreme” hypothesis, Fishman imagined an “ugly” photo of Elvis that he knew Presley's fortune would not like. “The law seems to make me liable if I send that photo to a friend. After all, I took his likeness, knowing that the rights holder did not authorize its use. You're sending it. Stop and think about it.”
The ELVIS Act includes exceptions intended to protect free speech, including those that allow the legal use of someone's likeness in journalistic, critical, academic, parody, and other “fair use” contexts. I am. It also explicitly allows “audiovisual works” that include “representations of individuals as themselves,” but this provision does not allow Hollywood to sue in Tennessee for biographical films or other films about real people. It is thought that the purpose is to enable the company to continue making movies.
Confusingly, however, the law states that these exemptions apply only “to the extent such uses are protected by the First Amendment.” According to Rothman, this language excludes these exemptions unless and until a court rules that a particular alleged activity is a form of protected free speech. essentially means “no”, and such costly additional measures would primarily benefit those who want to participate. court. “This particular law creates great work for lawyers,” Rothman said. “A lawyer's job is tough.”
These lawyers will be filing full-fledged lawsuits against real people. Some of them are the scary voice-cloning criminals the music industry is trying to crack down on, but some are likely just ordinary people doing what's been done before. Be legal.
“This law could definitely lead to a lot of litigation,” Fishman said. “There's plenty of room here to test how far this law can go, whether it's because people object to the way they're portrayed or because they think there's an opportunity for additional licensing.” there is.”
Although this law only applies to Tennessee, the ELVIS law is even more important. Because the ELVIS Act is the first of many such legislative measures aimed at addressing AI imitation. At least five other states are currently considering amending their publicity laws to address the growing problem, and lawmakers on Capitol Hill are also considering federal legislation that would create the first national portrait law. ing.
Rothman said in a roundtable discussion last week that these efforts were misguided. He said laws already in place, including federal trademark law, existing right of publicity laws, and numerous other statutes and torts, already provide means to stop voice cloning and deepfakes. And he warned that the proposed federal bill would create even more serious problems, including allowing someone to permanently waive their image rights.
For other legal experts critical of the ELVIS Act, including Harvard Law Professor Rebecca Tushnet, future bills, whether at the state or federal level, are in fact envisioned to utilize AI. I would expect it to fit more directly into deception. deal with.
“New laws need to target more specific harms,” said Tushnet, who has written extensively on the intersection of intellectual property and free speech. “Currently, this law and other proposals go far beyond scope and threaten legitimate creative activity.”