underscored material = new
[bracketed material] = delete
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
HOUSE BILL 221
57
TH LEGISLATURE
-
STATE
OF
NEW
MEXICO
-
FIRST SESSION
,
2025
INTRODUCED BY
Tara L. Lujan and Joseph L. Sanchez
AN ACT
RELATING TO INTELLECTUAL PROPERTY; ENACTING THE VOICE AND
VISUAL LIKENESS RIGHTS ACT; PROVIDING FOR PRIVATE ENFORCEMENT;
PRESCRIBING CIVIL REMEDIES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. [NEW MATERIAL] SHORT TITLE.--This act may be
cited as the "Voice and Visual Likeness Rights Act".
SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the
Voice and Visual Likeness Rights Act:
A. "copyright holder" means the owner of an
exclusive right to an original work pursuant to the terms of a
copyright agreement;
B. "digital replica" means a computer-generated,
highly realistic electronic representation that is readily
identifiable as the voice or visual likeness of an individual
.229347.3 underscored material = new
[bracketed material] = delete
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
and is embodied in a sound recording, image or audiovisual
work:
(1) in which the individual did not perform or
appear; or
(2) is a version of a sound recording, image
or audiovisual work in which the individual performs or appears
and the fundamental character of the performance or appearance
is materially altered; and
(3) does not include the electronic
reproduction, use of a sample of one sound recording or
audiovisual work into another, remixing, mastering or digital
remastering of a sound recording or audiovisual work authorized
by a copyright holder;
C. "individual" means an actual person whose voice
or individual likeness is at issue with respect to digital
replication;
D. "online service":
(1) means a public-facing website, application
or virtual reality environment that provides a community forum
for user-generated content, including:
(a) videos, images, games, audio files
or other material;
(b) a digital music provider as defined
in 17 U.S.C. Section 115; or
(c) a social media service, social
.229347.3
- 2 - underscored material = new
[bracketed material] = delete
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
network or application store; and
(2) does not include a service by wire or
radio that provides the capability to transmit and receive data
from internet endpoints, including capabilities that are
incidental to enable the operation of the communications
service provider of online services or network access or the
operator of facilities for services;
E. "production" means the creation of a digital
replica;
F. "right holder" means a person that has acquired
the right to authorize the use of an individual's voice or
visual likeness in a digital replica;
G. "sexually explicit conduct" means actual or
simulated:
(1) sexual intercourse, including genital-
genital, oral-genital, anal-genital or oral-anal, whether
between persons of the same or opposite sex;
(2) bestiality;
(3) masturbation;
(4) sadistic or masochistic abuse; or
(5) lascivious exhibition of the anus,
genitals or pubic area of a person;
H. "sound recording artist" means a person who
performs in sound recordings for economic gain; and
I. "use" includes the commercial availability of a
.229347.3
- 3 - underscored material = new
[bracketed material] = delete
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
sound recording or audiovisual work in which the individual's
name or voice or visual likeness is readily identifiable.
SECTION 3. [NEW MATERIAL] DIGITAL REPLICATION RIGHT.--
A. The right to an individual's voice or visual
likeness is a property right exclusive to that individual. The
individual may license the use of the individual's voice or
visual likeness with instructions, limitations and conditions
provided by a licensing agreement. An individual may license
the use of the individual's voice or visual likeness as often
and to as many persons as the individual chooses. The property
right shall not expire on the death of the individual
regardless of whether the right was commercially exploited by a
right holder.
B. A right holder who is not the individual may
authorize the use of the voice or visual likeness of the
individual in a digital replica in accordance with the terms of
a licensing agreement. This right is a property right and is
licensable by the right holder. A license may survive the
individual's death. On the individual's death, the right may
be bequeathed by will or pass as personal property by operation
of law.
C. The rights provided in Subsection A of this
section are exclusive to the individual and may be transferred
during the individual's lifetime. A right holder may transfer
the rights provided in Subsection B of this section during the
.229347.3
- 4 - underscored material = new
[bracketed material] = delete
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
individual's lifetime or during the ten-year period after the
death of the individual, and the right may be terminated by:
(1) proof of the non-use of the name, likeness
or voice of an individual by a right holder for two years
subsequent to the initial ten-year period following the
individual's death; or
(2) the death of all executors, transferees,
heirs or devisees of the individual.
SECTION 4. [NEW MATERIAL] LICENSES INVOLVING ADULTS AND
MINORS.--
A. A license for an adult individual's or
emancipated minor's right while the individual is living is
valid only to the extent that the license duration does not
exceed ten years and is valid only if the license agreement:
(1) is in writing and signed by the individual
or the authorized representative of the individual; and
(2) includes a reasonably specific description
of the intended uses of the digital replica.
B. A license for a living minor's right is valid
only to the extent that the license duration does not exceed
five years but, in any case, terminates when the minor reaches
eighteen years of age. The license is valid only if the
license agreement:
(1) is in writing and signed by a parent or
guardian of the individual;
.229347.3
- 5 - underscored material = new
[bracketed material] = delete
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
(2) includes a reasonably specific description
of the intended uses of the digital replica; and
(3) is approved by a court in accordance with
the laws of the state.
C. The provisions of Subsections A and B of this
section shall not apply if the license is governed by a
collective bargaining agreement that addresses digital
replicas.
D. The provisions of Subsections A and B of this
section shall not affect terms and conditions of a license or
related contract other than those described in those
subsections, and the expiration of such license shall not
affect the remainder of the license or related contract.
SECTION 5. [NEW MATERIAL] REQUIREMENTS FOR POST-MORTEM
TRANSFER.--A post-mortem transfer is valid only if the transfer
agreement is in writing and signed by the right holder or an
authorized representative of the right holder.
SECTION 6. [NEW MATERIAL] AUTHORIZED USE AFTER EXPIRATION
OR TERMINATION OF LICENSE.--A digital replica embodied in a
sound recording, image or audiovisual work, the use of which is
authorized pursuant to the terms of a license, may be used in a
manner consistent with the terms of the license after the
expiration or termination of the license.
SECTION 7. [NEW MATERIAL] LIABILITY--CIVIL ACTION--
REMEDIES--LIMITATIONS OF ACTION--EXCLUSIONS.--
.229347.3
- 6 - underscored material = new
[bracketed material] = delete
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A. A person that produces, publishes, reproduces,
displays, distributes or otherwise makes available digital
replicas without the written consent of the individual or the
right holder is liable for a civil action. Each display made,
copy made, transmission and instance of an unauthorized digital
replica made available on an online service is a violation of
the provisions of the Voice and Visual Likeness Rights Act.
B. To incur liability, a person that engaged in the
violation shall have actual knowledge of the alleged violation,
which may be obtained through a notification from the right
holder or individual, or shall willfully avoid having knowledge
that the material is an unauthorized digital replica.
C. Unless the digital replica is used to depict
sexually explicit conduct, a violation of the provisions of the
Voice and Visual Likeness Rights Act does not occur if the:
(1) digital replica is produced or used in a
bona fide news, public affairs or sports broadcast or account;
provided that the digital replica is the subject of or is
relevant to the subject of the broadcast or account;
(2) digital replica is a representation of the
individual as the individual in a documentary or in a
historical or biographical manner, unless the production or use
of the digital replica creates the false impression that the
work is an authentic sound recording, image, transmission or
audiovisual work in which the individual participated or the
.229347.3
- 7 - underscored material = new
[bracketed material] = delete
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
digital replica is embodied in a musical sound recording that
is synchronized to accompany a motion picture or other
audiovisual work;
(3) digital replica is produced or used
consistent with the public interest in a bona fide commentary,
criticism, scholarship, satire or parody;
(4) use of the digital replica is fleeting or
negligible; or
(5) digital replica is used in an
advertisement or commercial announcement for a purpose
enumerated in Paragraphs (1) through (4) of this subsection and
the digital replica is relevant to the subject of the work
being advertised or announced.
D. A person shall not be secondarily liable for a
violation of the provisions of the Voice and Visual Likeness
Rights Act for manufacturing, importing, offering to the
public, providing or otherwise distributing an unauthorized
digital replica in a product or service, unless the product or
service:
(1) is primarily designed to produce one or
more unauthorized digital replicas;
(2) has only limited commercially significant
purpose or use other than to produce an unauthorized digital
replica; or
(3) is marketed, advertised or otherwise
.229347.3
- 8 - underscored material = new
[bracketed material] = delete
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
promoted by that person or another acting in concert with that
person with that person's knowledge for use in producing an
unauthorized digital replica.
E. An online service shall not be liable for
violating the provisions of the Voice and Visual Likeness
Rights Act if, upon receiving a notification of alleged
violation, the online service removes or disables access to the
material alleged to be an unauthorized digital replica as soon
as is practicable.
F. An online service shall not be liable for
violating the provisions of the Voice and Visual Likeness
Rights Act for storing third-party provided material that
resides on a system or network controlled or operated by or for
the online service if, upon receiving a notification of
violation, the online service removes or disables access to all
instances of the material claimed to be an unauthorized digital
replica as soon as is practicable for the online service and
takes reasonable steps to promptly notify the third party that
provided the material that the online service has removed or
disabled access to the material.
G. A civil action for a violation of the provisions
of the Voice and Visual Likeness Rights Act may be brought by:
(1) a right holder;
(2) if the individual is a minor, a parent or
guardian of the individual;
.229347.3
- 9 - underscored material = new
[bracketed material] = delete
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
(3) a person that controls, even by virtue of
a license, the right to authorize the use of the voice or
visual likeness of the individual;
(4) a person that owns or controls the right
to authorize the use of the voice or visual likeness of a
deceased person; or
(5) in the case of digital replica involving a
sound recording artist, a person that has directly or
indirectly entered into:
(a) a contract for the exclusive use of
the sound recording artist as a sound recording artist; or
(b) an exclusive license to distribute
or transmit one or more works that capture the audio
performance of the sound recording artist.
H. A civil action for private enforcement of the
provisions of the Voice and Visual Likeness Rights Act may be
brought within three years after the date on which the party
bringing the civil action discovered or with due diligence
should have discovered the violation.
I. It shall not be a defense that the defendant
displayed or otherwise communicated to the public a disclaimer
stating that the applicable digital replica was unauthorized or
disclosing that the digital replica was generated through the
use of artificial intelligence or other technology.
J. In a civil action brought pursuant to the Voice
.229347.3
- 10 - underscored material = new
[bracketed material] = delete
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
and Visual Likeness Rights Act, a person that engages in
activity violating that act is liable to the injured party in
an amount equal to the greater of:
(1) in the case of a natural person, five
thousand dollars ($5,000) per work embodying the unauthorized
digital replica;
(2) in the case of an online service, five
thousand dollars ($5,000) per violation;
(3) in the case of a person that is not an
online service, twenty-five thousand dollars ($25,000) per work
embodying the unauthorized digital replica; or
(4) actual damages suffered by the injured
party as a result of the activity, plus profits from the
unauthorized use attributable to that use and that are not
taken into account in computing the actual damages.
K. The plaintiff may seek injunctive or other
equitable relief.
L. In the case of willful activity in which the
injured party has proven that the defendant acted with malice,
fraud, knowledge or willful avoidance of knowledge that the
conduct violated the law, the court may award to the injured
party punitive damages; and if the prevailing party is the
party:
(1) bringing the court action, the court may
award reasonable attorney fees; or
.229347.3
- 11 - underscored material = new
[bracketed material] = delete
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
(2) defending the court action, the court may
award reasonable attorney fees if the court determines that the
action was not brought in good faith.
M. An online service that has an objectively
reasonable belief that material claimed to be an unauthorized
digital replica does not qualify as a digital replica pursuant
to the Voice and Visual Likeness Rights Act shall not be liable
for statutory or actual damages exceeding one million dollars
($1,000,000), regardless of whether the material is determined
to be an unauthorized digital replica.
N. In the event that the third party that provided
the material that the online service has removed or to which
the online service has disabled access files a lawsuit against
the sender of a notice of violation claiming that the notice
was false or deceptive, the online service may restore the
removed material to its network for access by members of the
public without monetary liability to either the notice sender
or the third party that provided the material that the online
service had removed or disabled access.
SECTION 8. [NEW MATERIAL] RULE OF CONSTRUCTION.--The
Voice and Visual Likeness Rights Act is a law pertaining to
intellectual property for the purposes of the federal
Communications Act of 1934.
SECTION 9. SEVERABILITY.--If any part or application of
the Voice and Visual Likeness Rights Act is held invalid, the
.229347.3
- 12 - underscored material = new
[bracketed material] = delete
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
remainder or its application to other situations or persons
shall not be affected.
SECTION 10. EFFECTIVE DATE.--The effective date of the
provisions of this act is July 1, 2025.
- 13 -
.229347.3