By: Thompson (Senate Sponsor - Patrick) H.B. No. 3125
(In the Senate - Received from the House May 12, 2011;
May 12, 2011, read first time and referred to Committee on
Jurisprudence; May 21, 2011, reported favorably by the following
vote: Yeas 5, Nays 0; May 21, 2011, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to the offenses of unauthorized duplication, unauthorized
recording, unauthorized operation of recording device, and
improper labeling of recordings.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 641.001(4), Business & Commerce Code, is
amended to read as follows:
(4) "Recording" means a tangible medium on which
sounds, images, or both are recorded or otherwise stored,
including:
(A) an original phonograph record, disc, tape,
audio or video cassette, wire, film, electronic storage device, or
other medium now existing or later developed; or
(B) a copy or reproduction that wholly or partly
duplicates the original.
SECTION 2. Section 641.052, Business & Commerce Code, is
amended to read as follows:
Sec. 641.052. UNAUTHORIZED RECORDING OF LIVE PERFORMANCE.
(a) In this section:
(1) "Artist" means a person who contracts to perform
or entertain at a live entertainment event.
(2) "Live entertainment event" means an event that
occurs on a specific date and at which:
(A) an individual or a group of individuals,
physically present at the venue, performs for the purpose of
entertaining a person who is present at the event;
(B) a traveling circus or animal show performs
for the purpose of entertaining a person who is present at the
event; or
(C) a historical, museum-quality artifact is on
display at an exhibition.
(3) "Live performance" means a recitation, rendering,
or playing of a series, in an audible sequence, of:
(A) images;
(B) musical, spoken, or other sounds; or
(C) a combination of images and sounds.
(4) "Promoter" means an individual contracted by an
artist to promote, organize, coordinate, operate, and manage a live
entertainment event. The term includes services related to:
(A) the provision of staff for the live
entertainment event; or
(B) the scheduling and promotion of an artist
performing or entertaining at the live entertainment event.
(b) A person commits an offense if the person, with the
knowledge that a live performance has been recorded or fixed
without the consent of the owner:
(1) for commercial advantage or private financial
gain, advertises, offers for sale, sells, rents, or transports,
causes the sale, resale, rental, or transportation of, or possesses
for one or more of these purposes a recording containing sounds of
the live performance; or
(2) with the intent to sell for commercial advantage
or private financial gain, records or fixes the live performance,
or causes the live performance to be recorded or fixed on a
recording.
(c) [(b)] An offense under this section is punishable by:
(1) imprisonment for a term of not more than five
years, a fine not to exceed $250,000, or both, if:
(A) the offense involves at least 1,000
unauthorized recordings embodying sound or at least 65 unauthorized
audiovisual recordings during a 180-day period; or
(B) the defendant has been previously convicted
under this section;
(2) imprisonment for a term of not more than two years,
a fine not to exceed $250,000, or both, if the offense involves more
than 100 but fewer than 1,000 unauthorized recordings embodying
sound or more than seven but fewer than 65 unauthorized audiovisual
recordings during a 180-day period; or
(3) confinement in the county jail for a term of not
more than one year, a fine not to exceed $25,000, or both, if the
offense is not otherwise punishable under Subdivision (1) or (2).
(d) A promoter and an artist shall, regarding a contract for
the artist's performance at a live entertainment event:
(1) comply with the terms of the contract regarding
the distribution of recording revenue or event proceeds between the
promoter and the artist; and
(2) agree to and secure permission for the recording
of the live entertainment event in writing before the event is
recorded.
(e) [(c)] In the absence of a written agreement or law to
the contrary, the performer or performers of a live performance are
presumed to own the rights to record or fix those sounds.
(f) [(d)] For purposes of this section, a person authorized
to maintain custody and control over business records that reflect
whether the owner of a live performance consented to having the live
performance recorded or fixed is a proper witness in a proceeding
regarding the issue of consent. A witness called under this
subsection is subject to the rules of evidence relating to the
competency of a witness to testify and the relevance and
admissibility of the testimony offered.
SECTION 3. Section 641.001(2), Business & Commerce Code, is
repealed.
SECTION 4. The change in law made by this Act applies only
to an offense committed on or after the effective date of this Act.
An offense committed before the effective date of this Act is
governed by the law in effect at the time the offense was committed,
and the former law is continued in effect for that purpose. For
purposes of this section, an offense was committed before the
effective date of this Act if any element of the offense occurred
before that date.
SECTION 5. This Act takes effect September 1, 2011.
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