Feedback Needed Regarding the ELVIS Act

Tennessee’s proposal of the ELVIS Act might sound like something fun for fans, but in fact has the potential to create problems for fans engaging in a variety of fannish activities. This legislation is moving forward next week under pressure from Tennessee Governor Lee, but there is still some time to voice concerns and message the governor about how this act will hurt the public interest.

A number of organizations including the American Society for Collective Rights Licensing, Authors Guild, Copyright Clearance Center, National Music Publishers Association (NMPA), and Recording Industry Association of America (RIAA) are sponsoring this act. The proposed legislation creates a new right of publicity “in any medium in any manner” for life + 10 years.

OTW Legal is concerned about the potential impact of this Act, and believes Tennessee fans should be aware of the profound risks posed to both RPF and fictional fanworks that invoke an actor’s image. One part of the law is relatively minor: it adds “voice” to the existing right of publicity, which covers commercial uses. But it goes further. There is new, broad liability for anyone who knowingly “publishes, performs, distributes, transmits, or otherwise makes available to the public” content that includes someone’s voice or likeness, with no limitation to commercial uses. This could potentially harm artists, authors who describe an actor (or a character played by a particular actor), vidders, and other fannish creators. There is also broad liability for anyone who “distributes, transmits, or otherwise makes available an algorithm, software, tool, or other technology, service or device” whose purpose is to make the replicas.

Because the ELVIS Act establishes liability for both the “user” and the “developer/platform”, it means that — without clear definitions –- there could be a legal free-for-all on social media. The act’s wording could mean that anyone clicking on an infringing document could be at legal risk. One of the OTW’s partner organizations, NetChoice has more information about why the ELVIS Act could put fans at risk just for posting concert photos or for being associated with violations. As their post points out, there could be better laws passed instead to ban deep fakes.

The ELVIS Act is unnecessary as Tennessee law already adequately handles fraud, deception, and misappropriating someone’s likeness. If you are also concerned about this Act, let Tennessee officials know.

Legal Advocacy

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