California Right of Publicity Laws in Light of Tennessee’s ELVIS Act

April 02, 2024

In the realm of intellectual property and privacy rights, California stands at the forefront with robust legislation protecting individuals' right of publicity. The California Civil Code, specifically section 3344, outlines the unauthorized use of a personality's name, voice, signature, photograph, or likeness. This statute imposes liability on any individual or entity that exploits these attributes without prior consent, ensuring that damages, profits from the unauthorized use, and punitive damages can be sought by the injured party.

Los Angeles, Calif. (April 2, 2024) – In the realm of intellectual property and privacy rights, California stands at the forefront with robust legislation protecting individuals' right of publicity. The California Civil Code, specifically section 3344, outlines the unauthorized use of a personality's name, voice, signature, photograph, or likeness. This statute imposes liability on any individual or entity that exploits these attributes without prior consent, ensuring that damages, profits from the unauthorized use, and punitive damages can be sought by the injured party.

New and evolving technologies have created additional avenues through which bad actors can use individuals’ attributes without their consent. In particular, the emergence of artificial intelligence (AI) has given rise to “deepfakes,” hyper-realistic videos and audio created through AI manipulation. These deepfakes have raised significant concerns regarding privacy violations and unauthorized use of individuals' likenesses. Recent cases have highlighted the potential harm caused by deepfakes, emphasizing the need for stringent legal protections against their misuse.

In a landmark move, the state of Tennessee has enacted the "Ensuring Likeness Voice and Image Security (ELVIS) Act" to safeguard its artists from the unauthorized use of their voices and likenesses in artificial intelligence (AI) applications.

The ELVIS Act, signed into law by Governor Bill Lee in late March, expands upon the state's existing "Personal Rights Protection Act" by explicitly including protections for an individual's voice, in addition to their name, photograph, and likeness. This legislation aims to address the growing concerns around the rise of AI-powered voice cloning and deepfakes, which have the potential to exploit artists' intellectual property without their consent.

The ELVIS Act is seen as a crucial step in addressing the challenges posed by the rapid advancements in AI technology, which have the potential to undermine the rights and livelihoods of musicians, performers, and other creative professionals. The legislation not only protects against the unauthorized use of an artist's voice for commercial purposes but also extends to the use of their voice in documentaries, songs, books, and other mediums.

This groundbreaking law in Tennessee comes on the heels of a bipartisan federal effort to address the issue of AI-driven impersonation. The No Artificial Intelligence Fake Replicas And Unauthorized Duplications Act (No AI FRAUD Act), introduced in the U.S. House of Representatives, aims to establish a nationwide framework for protecting individuals' voices and likenesses from exploitation.

Given the progressive nature of California's legal landscape, it is imperative for the state to consider adopting similar measures to safeguard individuals' rights in the face of advancing AI technologies. By incorporating provisions like those in the ELVIS Act, California can enhance its existing right of publicity laws to encompass voice replication and AI-generated content.

In conclusion, as technology continues to evolve, so must our legal frameworks to ensure adequate protection for individuals' rights. California's robust right of publicity laws provide a solid foundation on which to build further safeguards against emerging threats like deepfakes. By drawing inspiration from recent legislative developments such as Tennessee’s ELVIS Act, California can reinforce its commitment to upholding privacy rights in an increasingly digital world.

As attorneys and lawmakers navigate this complex landscape, it is crucial to remain vigilant and proactive in addressing challenges posed by technological advancements while upholding fundamental principles of privacy and individual rig

For more information on this topic, contact the author of this alert. Visit our Intellectual Property & Technology Practice page to learn more about Lewis Brisbois' capabilities in this area.

Author:

Sarkis Yeretsian, Associate