The "Fake Drake" Fix: Why Each State Should Adopt Tennessee's ELVIS Act in the Age of AI-Deepfakes

Vincent Melara, The "Fake Drake" Fix: Why Each State Should Adopt Tennessee's ELVIS Act in the Age of AI-Deepfakes, 25 Wake Forest J. Bus. & Intell. Prop. L. 101 (2024). 

Recently, the entertainment industry has grappled with the dangers posed by artificial intelligence (“AI”) impersonations of artists. In April of 2023, a disgruntled “ghostwriter in the music industry” published a song on Spotify, Apple Music, YouTube, TikTok, and other digital streaming platforms (“DSPs”) called “Heart on My Sleeve,” featuring AI-soundalikes of Canadian artists Drake and The Weeknd. The publisher, who goes by @ghostwriter977 (“Ghostwriter977”) on TikTok, used an AI-trained voice filter to engineer his own voice to sound “virtually indistinguishable” from Drake’s and The Weeknd’s voices. The track went viral instantly, and many listeners expressed “disbelief” that these fake voices were not “the work of real artists.” Shortly after the release of “Heart on My  Sleeve,” Universal Music Group (“UMG”), the largest music company in the world and the label for both Drake and The Weeknd, issued copyright takedown orders to multiple DSPs. Despite the orders, platforms were subsequently overwhelmed with AI-generated music, imitating the likes of Bad Bunny, Travis Scott, 21 Savage, and more. This contributed to UMG removing its entire music catalog from TikTok for failing to protect UMG artists’ music from being used to train and generate AI music on the platform.

Until recently, no state explicitly protected the Right of Publicity from non-human-generated soundalikes or deepfakes (i.e., AI), and only about a dozen states protected “voice” as a property interest in their Right of Publicity schemes. On March 21, 2024, Tennessee became the first state to update its laws to address name, image, likeness, and voice protections against AI-soundalikes and deepfakes when Governor Bill Lee signed the Ensuring Likeness, Voice, Image, and Security (“ELVIS”) Act. Industry stakeholders, such as the Recording Academy and the Recording Industry Association of America (“RIAA”), helped draft and lobby for the ELVIS Act to protect freedom of speech by including a fair use exception. The ELVIS Act aims to prohibit unauthorized commercial use of one’s identity. It protects every Tennessean—celebrities and private citizens alike— from the identity misappropriation that is increasingly common in the Digital Era. However, the ELVIS Act is limited in scope because it can only protect against infringement subject to Tennessee’s jurisdiction. Fortunately, the speed with which Tennessee passed the ELVIS Act demonstrates how quickly individual state governments can provide adequate protection from a growing issue.

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