Texas 2025 - 89th Regular

Texas House Bill HB3950 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	89R10617 SRA-F
2	2	By: Hunter H.B. No. 3950
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7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to digital replication rights in the voice and visual
10	10	likeness of individuals; providing private causes of action;
11	11	authorizing a fee.
12	12	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
13	13	SECTION 1. The Business & Commerce Code is amended by adding
14	14	Title 14A to read as follows:
15	15	TITLE 14A. DIGITAL REPLICAS
16	16	SUBTITLE A. DIGITAL REPLICATION RIGHTS
17	17	CHAPTER 651. VOICE OR VISUAL LIKENESS
18	18	SUBCHAPTER A. GENERAL PROVISIONS
19	19	Sec. 651.001. DEFINITIONS. In this chapter:
20	20	(1) "Digital replica" means a newly created,
21	21	computer-generated, highly realistic electronic representation
22	22	that is readily identifiable as the voice or visual likeness of an
23	23	individual that:
24	24	(A) is embodied in a sound recording, image,
25	25	audiovisual work, including an audiovisual work that does not have
26	26	any accompanying sounds, or transmission:
27	27	(i) in which the individual did not
28	28	actually perform or appear; or
29	29	(ii) that is a version of a sound recording,
30	30	image, or audiovisual work in which the individual did perform or
31	31	appear, but in which the fundamental character of the performance
32	32	or appearance has been materially altered; and
33	33	(B) does not include the electronic
34	34	reproduction, use of a sample of one sound recording or audiovisual
35	35	work into another, remixing, mastering, or digital remastering of a
36	36	sound recording or audiovisual work authorized by the copyright
37	37	holder.
38	38	(2) "Digital replication right" means the right
39	39	established under Subchapter B.
40	40	(3) "Eligible plaintiff" means a person authorized to
41	41	bring an action under Section 651.201.
42	42	(4) "Individual" means a natural or deceased person.
43	43	(5) "Minor" means a person younger than 18 years of age
44	44	who:
45	45	(A) has never been married; and
46	46	(B) has not had the disabilities of minority
47	47	removed for general purposes.
48	48	(6) "Online service" means:
49	49	(A) any publicly accessible Internet website,
50	50	online application, mobile application, or virtual reality
51	51	environment, including a social media service, social media
52	52	network, or online application store, that predominantly provides a
53	53	community forum for user-generated content, including the sharing
54	54	of videos, images, games, audio files, or other material; and
55	55	(B) a digital music provider, as defined by 17
56	56	U.S.C. Section 115(e).
57	57	(7) "Online service provider" means the owner of an
58	58	online service.
59	59	(8) "Production" means the creation of a digital
60	60	replica.
61	61	(9) "Right holder" means:
62	62	(A) the individual whose voice or visual likeness
63	63	is simulated or otherwise copied in or as a digital replica; and
64	64	(B) if applicable, any other person other than
65	65	the individual described by Paragraph (A) that acquires, through a
66	66	license, inheritance, or otherwise, the right to authorize the use
67	67	of the individual's voice or visual likeness in a digital replica.
68	68	(10) "Sound recording artist" means an individual who
69	69	creates or performs in sound recordings for economic gain or for the
70	70	livelihood of the individual.
71	71	Sec. 651.002. APPLICABILITY. This chapter applies only to
72	72	an individual who:
73	73	(1) is a resident of this state; or
74	74	(2) was a resident of this state on the date the
75	75	individual died.
76	76	SUBCHAPTER B. DIGITAL REPLICATION RIGHTS
77	77	Sec. 651.051. DIGITAL REPLICATION RIGHTS; PROPERTY RIGHT
78	78	ESTABLISHED. An individual or other right holder has the right to
79	79	authorize the use of the voice or visual likeness of the individual
80	80	in a digital replica. The right is:
81	81	(1) a property right;
82	82	(2) licensable, wholly or partly, exclusively or
83	83	nonexclusively, by the right holder, subject to the terms of a
84	84	contract, including a licensing agreement, or testamentary
85	85	instrument conveying digital replication rights to a right holder;
86	86	and
87	87	(3) not assignable during the life of the individual.
88	88	Sec. 651.052. DIGITAL REPLICATION RIGHTS ON DEATH OF
89	89	INDIVIDUAL. (a) A digital replication right does not expire on the
90	90	death of an individual, regardless of whether the right is used
91	91	commercially by the individual during the individual's lifetime.
92	92	(b) Subject to Chapter 26, Property Code, and other
93	93	applicable law, on the death of an individual:
94	94	(1) the individual's digital replication right is
95	95	transferable and licensable, wholly or partly, by the executors,
96	96	heirs, assigns, licensees, or devisees of the individual; and
97	97	(2) ownership of the right may be transferred, wholly
98	98	or partly, by operation of law, will, or intestate succession.
99	99	(c) A digital replication right is exclusive to:
100	100	(1) the individual, subject to the licensing of the
101	101	right during the lifetime of the individual; and
102	102	(2) the right holder:
103	103	(A) for a period of 10 years after the death of
104	104	the individual; and
105	105	(B) subject to Section 651.151, if the right
106	106	holder demonstrates active and authorized public use of the voice
107	107	or visual likeness of the individual during the 2-year period
108	108	preceding the expiration of the 10-year period described in
109	109	Paragraph (A), for an additional 5-year period, subject to renewal
110	110	for additional 5-year periods, only if the right holder can
111	111	demonstrate authorized public use of the voice or visual likeness
112	112	of the individual during the 2-year period preceding the expiration
113	113	of each additional 5-year period.
114	114	(d) A digital replication right terminates on the earlier
115	115	of:
116	116	(1) the date on which the 10-year period or 5-year
117	117	period, as applicable, described by Subsection (c)(2) expires
118	118	without renewal; or
119	119	(2) the date that is 70 years after the death of the
120	120	individual.
121	121	(e) If a right holder died before September 1, 2025, the
122	122	right holder's digital replication rights vest in the executors,
123	123	heirs, assigns, or devisees of the right holder.
124	124	Sec. 651.053. UNAUTHORIZED USE OF DIGITAL REPLICA. Except
125	125	as provided by Section 651.054 and subject to Section 651.104, a
126	126	person may not:
127	127	(1) produce a digital replica without the written
128	128	consent of the right holder; or
129	129	(2) publish, reproduce, display, distribute,
130	130	transmit, or otherwise make available to the public a digital
131	131	replica without the written consent of the right holder.
132	132	Sec. 651.054. PERMITTED USES. (a) Except as provided by
133	133	Subsection (b), a person may use a digital replica without the right
134	134	holder's consent if the digital replica is:
135	135	(1) produced or used in a bona fide news, public
136	136	affairs, or sports broadcast or account, provided that the digital
137	137	replica is the subject of, or is materially relevant to, the subject
138	138	of the broadcast or account;
139	139	(2) a representation of the individual in a
140	140	documentary, biographical, or historical manner, including some
141	141	degree of fictionalization, unless:
142	142	(A) the production or use of that digital replica
143	143	creates the false impression that the digital replica is an
144	144	authentic sound recording, image, transmission, or audiovisual
145	145	work in which the individual participated; or
146	146	(B) the digital replica is embodied in a musical
147	147	sound recording that is synchronized to accompany a motion picture
148	148	or other audiovisual work, except to the extent that the use of that
149	149	digital replica is protected by the First Amendment to the United
150	150	States Constitution;
151	151	(3) produced or used consistent with the public
152	152	interest in bona fide commentary, criticism, scholarship, satire,
153	153	or parody;
154	154	(4) used in a fleeting or negligible manner; or
155	155	(5) used in an advertisement or commercial
156	156	announcement for a purpose described by Subdivisions (1) through
157	157	(4) and the digital replica is relevant to the subject of the
158	158	advertisement or announcement.
159	159	(b) Subsection (a) does not apply to a digital replica used
160	160	to depict sexual conduct, as defined by Section 21.16, Penal Code.
161	161	Sec. 651.055. AUTHORITY TO LICENSE DIGITAL REPLICATION
162	162	RIGHT. Except as provided by Section 651.056 or 651.057, an
163	163	individual may, during the individual's lifetime, license the
164	164	individual's digital replication right. A license under this
165	165	section is valid only:
166	166	(1) to the extent the duration of the license does not
167	167	extend beyond the 10th anniversary of the date the license
168	168	agreement is entered into; and
169	169	(2) if the license agreement:
170	170	(A) is in writing and signed by the individual or
171	171	an authorized representative of the individual; and
172	172	(B) includes a reasonably specific description
173	173	of the intended uses of the digital replica.
174	174	Sec. 651.056. AUTHORITY TO LICENSE DIGITAL REPLICATION
175	175	RIGHTS OF CERTAIN MINORS. Except as provided by Section 651.057, a
176	176	license of the digital replication rights of a minor is valid only:
177	177	(1) to the extent the duration of the license does not
178	178	extend beyond the earlier of:
179	179	(A) the fifth anniversary of the date the license
180	180	agreement is entered into; or
181	181	(B) the minor's 18th birthday;
182	182	(2) if the license agreement:
183	183	(A) is in writing and signed by the minor's
184	184	parents or legal guardians; and
185	185	(B) includes a reasonably specific description
186	186	of the intended uses of the digital replica; and
187	187	(3) if the agreement is approved by a court in
188	188	accordance with Subchapter B, Chapter 1356, Estates Code.
189	189	Sec. 651.057. COLLECTIVE BARGAINING AGREEMENTS. Sections
190	190	651.055 and 651.056 do not apply if the license is governed by a
191	191	collective bargaining agreement that addresses digital replicas.
192	192	Sec. 651.058. REQUIREMENTS FOR POSTMORTEM TRANSFER. A
193	193	postmortem transfer or license of a digital replication right is
194	194	valid only if the testamentary instrument transferring the right or
195	195	the license agreement is in writing and signed by the right holder
196	196	or an authorized representative of the right holder.
197	197	Sec. 651.059. CONTINUED USE BY FORMER LICENSEE OF DIGITAL
198	198	REPLICA. Unless expressly prohibited by the license agreement, a
199	199	digital replica that is embodied in a sound recording, image,
200	200	audiovisual work, including an audiovisual work that does not have
201	201	any accompanying sounds, or transmission, and the use of which is
202	202	authorized under the terms of a license agreement, may continue to
203	203	be used in a manner consistent with the terms of that license after
204	204	the expiration or termination of the license agreement.
205	205	Sec. 651.060. VESTING OF CERTAIN DIGITAL REPLICATION
206	206	RIGHTS. Subject to Section 651.052(d)(2) and to the terms of a
207	207	contract, including a license agreement, or testamentary
208	208	instrument entered into before September 1, 2025, if a right holder
209	209	died before September 1, 2025, the right holder's digital
210	210	replication rights vest in the executors, heirs, assigns, or
211	211	devisees of the right holder.
212	212	SUBCHAPTER C. ONLINE SERVICE PROVIDER DUTIES
213	213	Sec. 651.101. DESIGNATION OF ONLINE SERVICE AGENT FOR
214	214	REPORTING CERTAIN VIOLATIONS; NOTIFICATIONS. (a) An online
215	215	service provider shall designate an agent to receive notifications
216	216	of violations of Section 651.053 that are alleged to have occurred
217	217	on the online service. The online service provider shall post in a
218	218	conspicuous, publicly accessible location on the online service the
219	219	name, address, telephone number, and e-mail address of the
220	220	designated agent.
221	221	(b) A notification under Subsection (a) must:
222	222	(1) be in writing:
223	223	(2) be submitted by and include the physical or
224	224	electronic signature of:
225	225	(A) the right holder or other eligible plaintiff;
226	226	or
227	227	(B) a person authorized to act on behalf of the
228	228	right holder or other eligible plaintiff;
229	229	(3) identify the individual whose voice or visual
230	230	likeness is being used in the alleged unauthorized digital replica;
231	231	(4) identify the material containing the alleged
232	232	unauthorized digital replica, including information sufficient to
233	233	allow the online service provider to locate the replica;
234	234	(5) include contact information reasonably sufficient
235	235	to permit the online service provider to contact the notifying
236	236	party, such as an address, telephone number, or e-mail address;
237	237	(6) include a statement that the notifying person
238	238	believes in good faith that the material is an unauthorized use of a
239	239	digital replica;
240	240	(7) if the notifying party is not the right holder or
241	241	other eligible plaintiff, include a statement that the notifying
242	242	party has the authority to act on behalf of the right holder or
243	243	eligible plaintiff, as applicable; and
244	244	(8) for the purposes of Section 651.102, include
245	245	information reasonably sufficient to:
246	246	(A) identify the reference or link to the
247	247	material or activity claimed to be an unauthorized digital replica
248	248	that is to be removed or to which access is to be disabled; and
249	249	(B) permit the online service provider to locate
250	250	the reference or link described in Paragraph (A).
251	251	Sec. 651.102. REMOVAL OF DIGITAL REPLICA. On receiving a
252	252	notification under Section 651.101, the online service provider
253	253	shall:
254	254	(1) remove from or disable access to the material that
255	255	is claimed to be an unauthorized digital replica on the online
256	256	service as soon as is technically and practically feasible; and
257	257	(2) if the online service hosts or otherwise stores
258	258	third-party provided material on a system or network controlled or
259	259	operated by or for the online service:
260	260	(A) remove or disable access to all instances of
261	261	the material or an activity using the material that is claimed to
262	262	be an unauthorized digital replica as soon as is technically and
263	263	practically feasible for that online service; and
264	264	(B) take reasonable steps to promptly notify the
265	265	third party that provided the material that the online service
266	266	provider has removed or disabled access to the material.
267	267	Sec. 651.103. FALSE OR DECEPTIVE NOTICE PROHIBITED. A
268	268	person may not submit a notice under Section 651.101 that falsely or
269	269	deceptively states that:
270	270	(1) the material requested to be removed is or
271	271	embodies an unauthorized digital replica;
272	272	(2) the person is authorized to submit the notice
273	273	under Section 651.101(b)(2); or
274	274	(3) use of the digital replica is not authorized by the
275	275	right holder or by other law.
276	276	Sec. 651.104. PRODUCTS AND SERVICES CAPABLE OF PRODUCING
277	277	DIGITAL REPLICAS; EXCEPTIONS AND VIOLATIONS BY MANUFACTURERS AND
278	278	DISTRIBUTORS. A person does not violate Section 651.053 by
279	279	manufacturing, importing, offering to the public, providing, or
280	280	otherwise distributing a product or service unless the product or
281	281	service:
282	282	(1) is primarily designed to produce one or more
283	283	unauthorized digital replicas;
284	284	(2) has limited commercially significant purpose or
285	285	use other than to produce an unauthorized digital replica; or
286	286	(3) is marketed, advertised, or otherwise promoted for
287	287	use in producing an unauthorized digital replica by:
288	288	(A) that person; or
289	289	(B) another:
290	290	(i) acting in concert with that person; or
291	291	(ii) with that person's knowledge.
292	292	SUBCHAPTER D. REGISTRATION OF POSTMORTEM RIGHTS
293	293	Sec. 651.151. REGISTRATION OF POSTMORTEM RIGHTS. The
294	294	renewal of a right described by Section 651.052(c)(2) is only
295	295	effective if, before the two-year period described by that section,
296	296	the right holder files a notice with the secretary of state that
297	297	contains:
298	298	(1) the name of the deceased individual;
299	299	(2) a statement, under penalty of perjury, that the
300	300	right holder has engaged in active and authorized public use of the
301	301	voice or visual likeness during the applicable two-year period;
302	302	(3) the identity of and contact information for the
303	303	right holder; and
304	304	(4) any other information the secretary of state deems
305	305	necessary.
306	306	Sec. 651.152. POSTMORTEM DIGITAL REPLICATION RIGHTS
307	307	DIRECTORY. (a) The secretary of state shall maintain and make
308	308	available to the public a directory of postmortem digital
309	309	replication rights registered under Section 651.151.
310	310	(b) A right holder may voluntarily apply to the secretary of
311	311	state for inclusion on the directory described by this section by
312	312	filing a notice with the secretary of state that complies with the
313	313	form, content, and filing procedures prescribed by rule by the
314	314	secretary of state.
315	315	(c) The secretary of state may impose a filing fee on a right
316	316	holder for inclusion in the directory described by this section in
317	317	amounts necessary to cover the cost of administering the directory.
318	318	SUBCHAPTER E. ENFORCEMENT
319	319	Sec. 651.201. AUTHORITY TO BRING UNAUTHORIZED USE ACTION:
320	320	ELIGIBLE PLAINTIFF. An action under Section 651.202 or 651.203 may
321	321	be brought only by:
322	322	(1) a right holder;
323	323	(2) if the individual who is the subject of a digital
324	324	replica is a minor, the parent or guardian of the individual;
325	325	(3) any other person that controls, including through
326	326	a license, the right to authorize the use of the voice or visual
327	327	likeness of the right holder;
328	328	(4) any other person that owns or controls the right to
329	329	authorize the use of the voice or visual likeness of a deceased
330	330	individual; or
331	331	(5) in the case of a digital replica of an individual
332	332	who is a sound recording artist, any person that has, directly or
333	333	indirectly, entered into:
334	334	(A) a contract for the exclusive personal
335	335	services of the sound recording artist as a sound recording artist;
336	336	or
337	337	(B) an exclusive license to distribute or
338	338	transmit one or more works that capture the audio performance of the
339	339	sound recording artist.
340	340	Sec. 651.202. INJUNCTIVE RELIEF FOR UNAUTHORIZED USE. An
341	341	eligible plaintiff may bring a private cause of action against a
342	342	person who violates or threatens to violate this chapter to obtain:
343	343	(1) injunctive relief; or
344	344	(2) other equitable relief.
345	345	Sec. 651.203. PRIVATE CAUSE OF ACTION FOR UNAUTHORIZED USE.
346	346	(a) In this section, "knowingly" means having actual knowledge of
347	347	or acting with deliberate ignorance of the prohibition involved.
348	348	(b) An eligible plaintiff may bring a cause of action
349	349	against another person who knowingly violates Section 651.053.
350	350	(c) For purposes of Subsection (a), a person may be presumed
351	351	to have acted knowingly if the person:
352	352	(1) is an online service provider that received a
353	353	notification under Section 651.101 and failed to remove or disable
354	354	access to the material under Section 651.102; or
355	355	(2) wilfully avoided having knowledge that:
356	356	(A) the applicable material is a digital replica;
357	357	and
358	358	(B) the digital replica was not authorized by a
359	359	right holder.
360	360	(d) A person must bring a cause of action under this section
361	361	not later than the third anniversary after the date on which the
362	362	person discovered, or with due diligence should have discovered,
363	363	the violation.
364	364	(e) It is not a defense in a cause of action brought under
365	365	this section that the person alleged to have violated Section
366	366	651.053 displayed or otherwise communicated to the public a
367	367	disclaimer stating that the digital replica was unauthorized or
368	368	disclosing that the digital replica was generated through the use
369	369	of artificial intelligence or other technology.
370	370	(f) In a cause of action brought under this section, a
371	371	person that violates Section 651.053 is liable to the aggrieved
372	372	person for:
373	373	(1) subject to Subsection (g), the greater of:
374	374	(A) statutory damages in the amount of:
375	375	(i) $5,000 per work embodying the
376	376	unauthorized digital replica, if the violator is an individual;
377	377	(ii) $5,000 per violation, if the violator
378	378	is an online service provider; and
379	379	(iii) $25,000 per work embodying the
380	380	unauthorized digital replica, if the violator is an entity other
381	381	than an online service provider; or
382	382	(B) the sum of actual damages and profits
383	383	attributable to the unauthorized use of the digital replica; and
384	384	(2) if a wilful violation is proven under which the
385	385	violator is found to have acted with malice, fraud, knowledge, or
386	386	wilful avoidance of knowledge that the conduct violated the law,
387	387	punitive damages.
388	388	(g) An online service provider that has an objectively
389	389	reasonable belief that material claimed to be an unauthorized
390	390	digital replica does not qualify as a digital replica may not be
391	391	liable for statutory or actual damages exceeding $1 million
392	392	regardless of whether the material is ultimately determined to be
393	393	an unauthorized digital replica.
394	394	(h) The remedies available under this section and Section
395	395	26.013, Property Code, for a violation arising out of the same
396	396	conduct are mutually exclusive.
397	397	Sec. 651.204. ATTORNEY'S FEES. If the prevailing party is:
398	398	(1) the party bringing the action, the court shall
399	399	award reasonable attorney's fees; or
400	400	(2) the party defending the action, the court shall
401	401	award reasonable attorney's fees if the court determines that the
402	402	action was not brought in good faith.
403	403	Sec. 651.205. PRIVATE CAUSE OF ACTION FOR SUBMISSION OF
404	404	CERTAIN FALSE OR DECEPTIVE NOTICE. (a) Except as provided by
405	405	Subsection (b), a person who violates Section 651.103 is liable to
406	406	the online service provider, a third party described by Section
407	407	651.102, or another person aggrieved by the violation for an amount
408	408	equal to the greater of:
409	409	(1) $5,000; or
410	410	(2) actual damages and court costs and reasonable
411	411	attorney's fees, including actual damages arising out of an online
412	412	service provider's reliance on the notice in removing or disabling
413	413	access to the material or activity claimed to be an unauthorized
414	414	digital replica.
415	415	(b) If a third party described by Section 651.102 files an
416	416	action under this section, the online service provider may,
417	417	provided the action is filed not later than the 14th day after the
418	418	date a third party receives notice under Section 651.102(2)(B),
419	419	restore the removed material to the online service without
420	420	incurring monetary liability to either the notifying party or the
421	421	third party.
422	422	SECTION 2. To the extent of a conflict between Chapter 651,
423	423	Business & Commerce Code, as added by this Act, and a provision of a
424	424	contract, including a license agreement, or testamentary
425	425	instrument entered into or executed before the effective date of
426	426	this Act, the provision of the contract or instrument prevails.
427	427	SECTION 3. Subchapter E, Chapter 651, Business & Commerce
428	428	Code, as added by this Act, applies only to conduct occurring on or
429	429	after the effective date of this Act.
430	430	SECTION 4. This Act takes effect September 1, 2025.