February 12, 2024
Chairman Dennis Powers
Commerce Committee, Banking and Consumer Affairs Subcommittee
Tennessee General Assembly
425 Rep. John Lewis Way N.
Suite 674, Cordell Hull Bldg.
Nashville, TN 32743
Dear Chairman Powers,
The Digital Media Association (DiMA) appreciates the opportunity to share our perspective on AI and likeness rights in the context of your upcoming consideration of H.B. 2091, the Ensuring Likeness, Voice, and Image Security (ELVIS) Act of 2024. While we agree that the underlying topic of AI and likeness deserve careful and thorough consideration, we have significant concerns with the bill in its current form.
DiMA and our Members
DiMA represents the world’s leading audio streaming companies, whose investments in innovation drive the economic engine that have revitalized the music industry for the benefit of creators, rightsholders, consumers, and the economy. DiMA and its members – Amazon, Apple Music, Feed.fm, Pandora, Spotify, and YouTube – advocate for policies that ensure the continued success of the streaming economy where music fans have legal access to music anytime, anywhere they want it, and artists and songwriters can connect with old fans and make new ones around the world.
Streaming generates billions of dollars annually for the music industry. In fact, streaming accounts for 84% of recorded music revenues in the United States.[1] For every $1 in economic value generated by streaming, other sectors of the U.S. economy gain an additional $1.65.[2] In addition to the economic impact of streaming, the services we represent have invested personnel and resources in Nashville to ensure that they work closely with Music City and its creators. Several DiMA members – including Amazon, Apple Music, Pandora, Spotify, and YouTube – have dedicated teams based in Nashville who work alongside songwriters, artists, and rightsholders every day. These individuals are dedicated to working with up-and-coming and established artists alike, creating opportunities for visibility and engagement, and fostering relationships between the services and the creators. Often, emerging artists get their first big break on streaming services, connecting with audiences and developing fans.
[1] RIAA Mid-Year 2023 Revenue Report. https://www.riaa.com/wp-content/uploads/2023/09/RIAA-Mid-Year-2023-Revenue-Report.pdf
[2] An Economic Analysis of the Impact of Music Streaming. April 2023. https://dima.org/wp-content/uploads/2023/04/An-Economic-Analysis-of-the-Impact-of-Digital-Music-Streaming_April-2023.pdf
AI and the Music Industry
Questions about the use and impact of AI technology, its applications, and how they intersect with existing law are an important area of focus for all music industry stakeholders, including DiMA and our member companies. AI has been used as a tool in the music industry for many years, and as the technology continues to rapidly evolve, it has the ability to assist creators and artists, including musicians, producers, and songwriters, and improve the way music is created, distributed, discovered and consumed.
AI and Personhood
AI technology, particularly generative AI, also raises questions around the integrity of an individual’s likeness and voice that have particular resonance in the music industry. DiMA members have nothing to gain from deceptive music in their supply chain, and believe that those who would falsely capitalize on the creative identity and expression of the artists their customers love should be held accountable. Accordingly, DiMA supports appropriate safeguards to protect an individual’s personhood, and is committed to working toward solutions that ensure such protections in the age of AI. At the same time, we have significant concerns with H.B. 2091, and we urge the Committee to proceed with caution so as not to inadvertently disrupt the AI technologies that are already being deployed successfully throughout the industry, or the balance with creativity and protected speech that any policy in this area must seek to strike.
Existing Law
Tennessee law already prohibits unauthorized exploitation of an individual’s Name, Image, and Likeness for commercial purposes. This is the case today, without passage of H.B. 2091. Indeed, individuals already have a cause of action in almost every state, including Tennessee, if their likeness is used without permission on a commercial basis. Importantly, these laws as they exist today are technology neutral, which can help prevent them from becoming outdated, as technology changes more rapidly than the law. Existing laws have also developed over time to balance personhood rights with critical First Amendment protections and permitted speech.
Concerns and Approach
We are concerned that H.B. 2091would create legal and creative uncertainty, increase barriers to entry for new competition, and have a chilling effect on the current operation of audio streaming and its future growth. In particular, we are concerned that the undue expansion of rights already enshrined in law as contemplated by H.B. 2091 could ultimately chill speech, creative expression, and innovation. We have described our concerns, and some suggested approaches, in more detail below.
Liability
An important consideration in establishing any new right is who should be liable for its infringement. DiMA’s position is that liability for unauthorized digital replicas should be direct and assigned to the creator of the violative content, not to downstream parties. This reflects the structure of the content ecosystem today, where content providers stand behind the legality of the content they offer and hold their distributors harmless for infringing content. In turn, distributors have processes whereby they help their partners mitigate risks and protect their customers from deceptive or infringing content.
The current laws assigning liability for infringing content to its owners are long-standing and have been the foundational building blocks for effective development and operation of the streaming economy, and the broader content distribution market before it.
Further, we caution against approaches that presume that services hosting or distributing the material in question have any ability to determine whether or not it violates a (to-be-determined) digital replica right. Today’s music streaming services offer over 100 million songs, and at that scale, DSPs must rely on the representations and metadata supplied by their content providers to know that the music those providers deliver is legitimate, and in what genre or other category to classify it. Data challenges, however, are prevalent in the music industry today – an issue that long predates AI. Works are often distributed to services missing significant metadata identifiers, or with data inaccuracies, and there is no single technological standard for receiving and processing such data. There is likewise no industry-wide identifier to flag AI-created works (or system to receive it), much less something that identifies whether a work is AI-assisted, as many songs are in some way today.
Overly Broad Language
The bill is drafted in such a way that it could be interpreted to include, and provide cause of action for the use of, products already widely used in the market (digital cameras, voice assistants, etc). This could not only harm future innovation, but also current products, creating legal confusion and chilling the creative process for artists.
The bill also adds a very broad new right, potentially perpetual in duration, against unauthorized use of a voice or likeness, departing from the existing statute and instead expanding the law to cover uses beyond advertising and/or merchandising.
First Amendment Protections
Any legislative area that impacts speech requires First Amendment protections. Numerous states have enacted “expressive works exemptions” to their right of publicity laws, recognizing that right of publicity statutes could impede or chill categories of speech. Such exceptions are critically important to preserving First Amendment protected speech, including depictions of individuals for a variety of purposes (e.g., docudramas, biographical purposes, parodies, political cartoons). New and amended laws should build upon these safeguards, not dilute them. Unfortunately, we are concerned that H.B. 2091 would further dilute what exemptions do exist in Tenn. Code 47-25-1107(a), undermining the very purpose of the exemptions in the first place.
Partner for Solutions
DiMA’s members invest significantly to ensure their platforms provide quality content that fans and consumers want to hear. As such, DiMA and its members are aligned with other stakeholders seeking to protect an individual’s personhood, including voice, from replica or appropriation by bad actors that seek to create content that can confuse consumers and strip individuals of their identity, livelihood, and creative expression.
Our members care deeply about protecting the integrity of the music ecosystem and stand ready to serve as a resource to the Committee as considerations continue. We look forward to ongoing discussions with Committee members and appreciate your attention to this matter and to the views of all impacted stakeholders.
Sincerely,
/s/
Graham Davies
President and CEO, DiMA
