Navigating the ELVIS Act: Why Tennessee Case Law May Mislead on Statute of Limitations for NIL Claims

Don't lose your right to claim damages under the ELVIS Act by failing to file suit within 3 years from discovery of the misappropriation.

In June 2022, certain heirs to country music legends (the “Heirs”) discovered a Nashville business misappropriating their name, image, and likeness rights (“NIL Rights”) in contravention of Tennessee’s Personal Rights Protection Act of 1984 (the “TPRPA”). The TRPA is the predecessor to Tennessee’s Ensuring Likeness, Voice, and Image Security Act of 2024 (the “ELVIS Act”).

To be clear, the Heirs inherited the NIL Rights. Their grandparents continue to be lionized within the country music industry to this day. And, pursuant to the ELVIS Act, the Heirs’ property rights in the use of their grandparents’ name, photograph, voice, or likeness (again, the “NIL Rights”) are freely assignable and licensable, and do not expire upon the death of the Heirs’ grandparents, whether or not the NIL Rights are commercially exploited by the Heirs during the Heirs’ lifetimes. So, the NIL Rights are “descendible to the executors, assigns, heirs, or devisees” with certain caveats beyond the scope of this blog entry.

Generally, a litigator’s first task in assessing a claim includes determining the claim’s statute of limitations. Because Governor Bill Lee just signed the ELVIS Act, the issue remains one of first impression. So, I necessarily looked to the TPRPA to determine the statutes’ running under the ELVIS Act’s predecessor.

Unfortunately, the TPRPA stopped short of codifying a statute of limitations for claims brought under the TPRPA. And, assuming in arguendo, the ELVIS Act codified a statute of limitations (it does not), the codification would not change the fact the Heirs must rely on the statute of limitations in place at the time the Heirs’ claims arose.

This remains so because when a cause of action is barred by a statute of limitations in force at the time the right to sue arose, the right to rely on the statute as a defense is a vested right that cannot be disturbed by subsequent legislation. Girdner v. Stephens, 498 Tenn 280, 286 (Tenn. 1870).

In Gibbons v. Schwartz-Nobel, the Tennessee Court of Appeals mistakenly applied a one-year statute of limitations to claims brought pursuant to the TPRPA. 928 S.W.2d 922, 926 (Tenn. Ct. App. 1996).

In Gibbons, a woman filed suit alleging libel, invasion of privacy, and one violation of the TPRPA by various defendants for their part in the publication and dissemination of the book, “The Baby Swap Conspiracy” and the later telecast and distribution of the video, “Switched at Birth.” 928 S.W.2d 922, 923 (Tenn. Ct. App. 1996).

In the book and telecast, the woman’s sister recounted the siblings’ separation from their mother, their mother being placed in a mental institution, and the siblings’ subsequent placement in an orphanage. Id. In her complaint, the woman alleged the publication and dissemination of the book and telecast left “the public thinking that [her] siblings are still lost,” “that [she] may be dead,” and that the book and telecast had forced her to endure severe emotional stress and mental anguish. Id.

In its ruling, the Gibbons court stated:

“T.C.A. § 28-3-104(a)(1) provides the following actions shall be commenced within one (1) year after the cause of action accrued: …[a]ctions for libel, for injuries to person, false imprisonment, malicious prosecution, breach or marriage promise; The [TPRPA] does not provide for a separate statute of limitations. Therefore, the applicable statute of limitations as to all three theories of recovery (libel, invasion of privacy, and a violation of the TPRPA) is in accordance with the foregoing statute.”

Had the Gibbons court analyzed each theory of recovery separately, the court would have determined that libel (a privacy right) is subject to a 1-year statue, invasion of privacy (a privacy right) is subject to a 1-year statute, and a violation of the TPRPA is subject to a 3-year statue. This is because the State of Tennessee has long held that NIL Rights are property rights. See Memphis Dev. Found. V. Factors, Etc., Inc., F. Supp. 1323, 1329 -1330 (W.D. Tenn 1977).

Not only does Tennessee law treat the NIL Rights as property rights but so do does the ELVIS Act. In fact, the ELVIS Act codifies the NIL Rights as property rights. See Tenn. Code Ann. § 47-25-1103 (“Every individual has a property right in the use of that individual’s name, photograph, voice, or likeness in any medium in any manner.”). And, pursuant to Tennessee Code Annotated, section 28-3-105, torts against property are subject to a three-year statute. T.C.A. § 28-3-105.

The distinction between privacy rights and property rights has proven key to justifying the right of publicity. See Larry Moore, Regulating Publicity: Does Elvis Want Privacy?, 5 DEPAUL-LCA J. ART & ENT. L. & POL’Y 1, 4 (1995). The rationale for this different treatment is that feelings are personal and experiences by an individual, and thus personal rights that protect feelings terminate at death, whereas property, like the NIL Rights, “has a discrete existence and value that is separate from its owner” and thus can be sold or bequeathed. Id.

So, Tennessee Courts have yet to accurately determine the length of the statute of limitations for claims brought pursuant to the ELVIS Act.