By Nikola Neufeld

            Artificial intelligence (“AI”) now enables nearly identical simulations of a person’s voice or likeness known as digital replicas.[1] In April 2023, an AI-generated song imitating Drake and The Weeknd went viral, earning millions of streams from genuine fans before being taken down.[2] The “Fake Drake” scandal shows that artists can easily be replicated without consent, raising urgent legal questions about ownership rights, exploitation, and free expression.[3]

            Without amending federal legislation, states with prominent music industries moved quickly to protect their artists.[4] Tennessee’s Ensuring Likeness, Voice, and Image Security (ELVIS) Act amended its right of publicity statute to explicitly prohibit AI-generated voice and likeness impersonations.[5] New York followed with its Digital Replica Law, which scrutinizes artist agreements, specifically contracts authorizing the use of digital replicas.[6]

            Both Tennessee’s ELVIS Act and New York’s Digital Replica Law attempt to protect artists from AI misuse, but each raise First Amendment concerns.[7] Tennessee’s sweeping liability regime risks unconstitutional overbreadth, while New York’s narrower, contract-based approach still constrains contractual speech by limiting employment agreements.[8] A federal framework, such as the proposed NO FAKES Act, should learn from these state models and strike a balanced that safeguards artists without chilling free expression.[9]

 I. State Responses: Tennessee and New York

A. Tennessee’s ELVIS Act

            Effective in July 2024, Tennessee’s ELVIS Act, makes “voice” a protected attribute under the state’s right of publicity.[10] The Act defines voice broadly to include both actual and simulated sounds “readily identifiable and attributable to a particular individual.”[11] Liability extends to replica authors, host platforms and distributors, and the developers of tools with the “primary purpose” of creating replica content.[12] Violations can result in civil damages, injunctive relief, and even criminal penalties.[13]

            The Act contains fair use exemptions news, public affairs, and sports broadcasts, but limits them only “to the extent such use is protected by the First Amendment.”[14] This vague language leaves reporters, commentators, or satirists unsure whether their content is shielded from liability.[15] Practitioners also highlight the state law’s expansive reach, warning that it imposes obligations on out of state platforms and risks unconstitutional overbreadth.[16]

B. New York’s Digital Replica Law

            New York’s Digital Replica Law, effective January 2025, takes a narrower approach. It voids contracts that authorize a replica to 1) replace work the performer would otherwise have done in person, 2) fail to clearly define the intended use, or 3) were negotiated without artist representation.[17] The law also targets contracts to help protect artists by voiding contracts with certain provisions.

            By targeting exploitative contracts, New York’s law mirrors principles in collective bargaining agreements, including the Screen Actors Guild—American Federation of Television and Radio Artists’ (SAG AFTRA’s) AI provisions.[18] Unlike the ELVIS Act, this statute emphasizes bargaining power and informed consent instead of broad liability. Keeping the law contract-focused makes the law more defensible under the First Amendment.[19] Still, because it restricts contractual speech, some practitioners worry that it limits permissible artist agreements and expressive uses in entertainment markets.[20] The New York State Bar Association warns that poorly tailored restrictions risk chilling legitimate AI applications, even with consent.[21]

II. Toward a Federal Framework

           Recognizing the rapid rise of AI-generated works and limits of state regulation, Congress has begun considering federal action.[22] The NO FAKES Act, proposed in 2023, would create a federal right against unauthorized digital replicas, however its initial draft is highly criticized as overbroad and potentially unconstitutional.[23] In 2024, the U.S. Copyright Office concluded that state laws are inadequate and called for consistent federal legislation that balances protection with First Amendment concerns.[24] The Office recommended limiting liability to distribution of unauthorized replicas, adopting safe harbor provisions for platforms, and creating a flexible balancing framework instead of categorical exemptions.[25]

           Professional associations also support federal regulation. The American Bar Association’s 2025 Resolution 501 urged Congress to enact legislation “protecting an individual’s right to authorize or prevent” digital replicas of their likeness and voice. It emphasizes strong safeguards to ensure future laws align with the First Amendment and addresses publicity rights, privacy, innovation, and third-party liability.[26]

Conclusion

           AI-generated replicas pose real risks to artists, but state efforts reveal the dangers of overcorrection. Tennessee’s ELVIS Act recognizes the importance of protecting voice and explicitly addresses AI-generated replicas, yet its sweeping liability section risks chilling various expressive works. New York’s Digital Replica Law, by contrast, emphasizes informed consent and voids exploitative contracts, though it still regulates speech through chilling over restriction.

           As Congress revisits the NO FAKES Act, it should draw inspiration from both: adopt ELVIS’s recognition of voice and AI replicas as protectable interests, while rejecting its overbroad liability provisions, and incorporate New York’s contract-based safeguards to ensure informed consent. A federal framework built on these principles can help protect artists from exploitation without undermining the expressive freedoms outlined in the First Amendment.

[1] U.S. Copyright Off., Copyright and Artificial Intelligence, Part 1: Digital Replicas 1 (2024).

[2] NPR, AI-Generated Song Mimicking Drake and The Weeknd Pulled from Streaming Services (Apr. 17, 2023), https://www.npr.org/2023/04/17/1170461967/ai-drake-weeknd-song.

[3] Melissa Schneider, “Fake Drake”: Vindicating Copyright Ownership in the Advent of Generative AI Music, 98 S. Cal. L. Rev. 663 (2025).

[4] Ensuring Likeness, Voice, and Image Security Act, Tenn. Code Ann. tit. 47, § 1102 (West 2024); N.Y. Gen. Oblig. Law § 5-302 (McKinney 2025).

[5] Title 47, § 1102;  Ralph Z. Levy et al., Suspicious Minds: Protecting Tennessee Artists from Generative AI, Dickinson Wright: Client Alert (June 2024), https://www.dickinson-wright.com/news-alerts/client-alert-tennessee-artists-generative-ai.

[6] Gen. Oblig. Law § 5-302(1).; Miguel A. Lopez et al., New York’s Digital Replica Law and Its Impact on Artificial Intelligence and the Entertainment Industry, Littler (Jan. 21, 2025), https://www.littler.com/publication-press/publication/new-yorks-digital-replica-law-and-its-impact-artificial-intelligence.

[7] Lopez et al., supra note 6.; Levy et al., supra note 5.

[8] Wright, supra note 5; N.Y. State Bar Ass’n, Generative Artificial Intelligence and the Legal Profession 18 (2024).; Lopez et al., supra note 6.

[9] Kate Given, A New Age of Publicity: The NO FAKES Act and Federal Regulation on AI Replicas, Columbia Undergraduate L. Rev. (Aug. 17, 2025), https://www.culawreview.org/journal/a-new-age-of-publicity-the-no-fakes-act-and-federal-regulation-on-ai-replicas; see generally U.S. Copyright Off., supra note 1, at 22–36.; Am. Bar Ass’n, Resolution 501 (2025).

[10] Title 47, § 1102(6).

[11] Id.

[12] Id. at § 1105(a)(2)-(3).

[13] Id; Catie Lane Bailey, Tanisha Pinkins & Lauren Caverly Pratt, First-of-Its-Kind AI Law Addresses Deep Fakes and Voice Clones: Tennessee’s ELVIS Act Seeks to Protect Artists’ Voices, Names, Images and Likenesses from the Misuse of Artificial Intelligence, Holland & Knight  (Apr. 1, 2024), https://www.hklaw.com/en/insights/publications/2024/04/first-of-its-kind-ai-law-addresses-deep-fakes-and-voice-clones.

[14] Title 47, § 1107(a).

[15] Ralph Z. Levy et al., Suspicious Minds: Protecting Tennessee Artists from Generative AI, Dickinson Wright: Client Alert (June 2024), https://www.dickinson-wright.com/news-alerts/client-alert-tennessee-artists-generative-ai.2–3; Kate Given, A New Age of Publicity: The NO FAKES Act and Federal Regulation on AI Replicas, Columbia Undergraduate L. Rev. (Aug. 17, 2025), https://www.culawreview.org/journal/a-new-age-of-publicity-the-no-fakes-act-and-federal-regulation-on-ai-replicas.

[16] Id.

[17]  Gen. Oblig. Law § 5-302(1)(c).; Lopez et al., supra note 6.

[18] Miguel A. Lopez, Brad Kelley & Shreya Mantrala, New York’s Digital Replica Law and Its Impact on Artificial Intelligence and the Entertainment Industry, Littler (Jan. 21, 2025), https://www.littler.com/publication-press/publication/new-yorks-digital-replica-law-and-its-impact-artificial-intelligence.

[19] Id.; Sarah (Sarang) Lim, Copyright Law in the Age of AI: Navigating Authorship, Infringement, and Creative Rights, N.Y. State Bar Ass’n (June 20, 2025), https://nysba.org/copyright-law-in-the-age-of-ai-navigating-authorship-infringement-and-creative-rights/.

[20] Lim, supra note 19.

[21] Id.

[22] Kate Given, A New Age of Publicity: The NO FAKES Act and Federal Regulation on AI Replicas, Columbia Undergraduate L. Rev. (Aug. 17, 2025), https://www.culawreview.org/journal/a-new-age-of-publicity-the-no-fakes-act-and-federal-regulation-on-ai-replicas; U.S. Copyright Off., Copyright and Artificial Intelligence, Part 1: Digital Replicas 22 –36, 43 (2024).

[23] Id.

[24] U.S. Copyright Off., supra note 22, at  22–36, 43.

[25] Id.

[26] Ellie K. Vilendrer, Update on Generative AI Litigation: A Future Hanging in the Balance, ABA Sci. & Tech. Lawyer (May 9, 2025) https://www.americanbar.org/groups/science_technology/resources/scitech-lawyer/2025-spring/generative-ai-litigation-future-update/; Am. Bar Ass’n, Resolution 501 (2025).