BILL ANALYSIS Senate Research Center S.B. 1960 89R10617 SRA-F By: Schwertner Business & Commerce 4/1/2025 As Filed AUTHOR'S / SPONSOR'S STATEMENT OF INTENT Generative artificial intelligence (AI) and other emerging technologies create new possibilities to unlock artistic expression and enhance creativity. However, while they may have numerous benefits, these AI tools also bring up legal and ethical implications not considered in years prior. Sophisticated reproductions can be challenging to distinguish, and leave a person vulnerable to their voice or visual likeness being exploited without their consent. S.B. 1960 establishes an individual's voice or visual likeness as a property right, and enables the individual or other applicable right holder to authorize its use. The bill prohibits the creation and distribution of digital replicas without permission, while also providing a process for expeditiously removing these fakes. As proposed, S.B. 1960 amends current law relating to digital replication rights in the voice and visual likeness of individuals, provides private causes of action, and authorizes a fee. RULEMAKING AUTHORITY Rulemaking authority is expressly granted to the secretary of state in SECTION 1 (Section 651.152, Business & Commerce Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends the Business & Commerce Code, by adding Title 14A, as follows: TITLE 14A. DIGITAL REPLICAS SUBTITLE A. DIGITAL REPLICATION RIGHTS CHAPTER 651. VOICE OR VISUAL LIKENESS SUBCHAPTER A. GENERAL PROVISIONS Sec. 651.001. DEFINITIONS. Defines "digital replica," "digital replication right," "eligible plaintiff," "individual," "minor," "online service," "online service provider," "production," "right holder," and "sound recording artist." Sec. 651.002. APPLICABILITY. Provides that this chapter applies only to an individual who is a resident of this state or was a resident of this state on the date the individual died. SUBCHAPTER B. DIGITAL REPLICATION RIGHTS Sec. 651.051. DIGITAL REPLICATION RIGHTS; PROPERTY RIGHT ESTABLISHED. Provides that an individual or other right holder has the right to authorize the use of the voice or visual likeness of the individual in a digital replica. Provides that the right is a property right licensable, wholly or partly, exclusively or nonexclusively, by the right holder, subject to the terms of a contract, including a licensing agreement, or testamentary instrument conveying digital replication rights to a right holder, and not assignable during the life of the individual. Sec. 651.052. DIGITAL REPLICATION RIGHTS ON DEATH OF INDIVIDUAL. (a) Provides that a digital replication right does not expire on the death of an individual, regardless of whether the right is used commercially by the individual during the individual's lifetime. (b) Provides that, subject to Chapter 26 (Use of a Deceased Individual's Name, Voice, Signature, Photograph, or Likeness), Property Code, and other applicable law, on the death of an individual the individual's digital replication right is transferable and licensable, wholly or partly, by the executors, heirs, assigns, licensees, or devisees of the individual and ownership of the right may be transferred, wholly or partly, by operation of law, will, or intestate succession. (c) Provides that a digital replication right is exclusive to certain individuals. (d) Provides that a digital replication right terminates on the earlier of certain dates. (e) Provides that if a right holder died before September 1, 2025, the right holder's digital replication rights vest in the executors, heirs, assigns, or devisees of the right holder. Sec. 651.053. UNAUTHORIZED USE OF DIGITAL REPLICA. Prohibits a person, except as provided by Section 651.054 and subject to Section 651.104, from producing a digital replica without the written consent of the right holder or publishing, reproducing, displaying, distributing, transmitting, or otherwise making available to the public a digital replica without the written consent of the right holder. Sec. 651.054. PERMITTED USES. (a) Authorizes a person, except as provided by Subsection (b), to use a digital replica without the right holder's consent if the digital replica meets certain requirements. (b) Provides that Subsection (a) does not apply to a digital replica used to depict sexual conduct, as defined by Section 21.16 (Unlawful Disclosure or Promotion of Intimate Visual Material), Penal Code. Sec. 651.055. AUTHORITY TO LICENSE DIGITAL REPLICATION RIGHT. Authorizes an individual, except as provided by Section 651.056 or 651.057, during the individual's lifetime, to license the individual's digital replication right. Provides that a license under this section is valid only under certain circumstances. Sec. 651.056. AUTHORITY TO LICENSE DIGITAL REPLICATION RIGHTS OF CERTAIN MINORS. Provides that, except as provided by Section 651.057, a license of the digital replication rights of a minor is valid only under certain circumstances. Sec. 651.057. COLLECTIVE BARGAINING AGREEMENTS. Provides that Sections 651.055 and 651.056 do not apply if the license is governed by a collective bargaining agreement that addresses digital replicas. Sec. 651.058. REQUIREMENTS FOR POSTMORTEM TRANSFER. Provides that a postmortem transfer or license of a digital replication right is valid only if the testamentary instrument transferring the right or the license agreement is in writing and signed by the right holder or an authorized representative of the right holder. Sec. 651.059. CONTINUED USE BY FORMER LICENSEE OF DIGITAL REPLICA. Authorizes a digital replica that is embodied in a sound recording, image, audiovisual work, including an audiovisual work that does not have any accompanying sounds, or transmission, and the use of which is authorized under the terms of a license agreement, unless expressly prohibited by the license agreement, to continue to be used in a manner consistent with the terms of that license after the expiration or termination of the license agreement. Sec. 651.060. VESTING OF CERTAIN DIGITAL REPLICATION RIGHTS. Provides that subject to Section 651.052(d)(2) (relating to providing that a digital replication right terminates on the date that is 70 years after the death of the individual) and to the terms of a contract, including a license agreement, or testamentary instrument entered into before September 1, 2025, if a right holder died before September 1, 2025, the right holder's digital replication rights vest in the executors, heirs, assigns, or devisees of the right holder. SUBCHAPTER C. ONLINE SERVICE PROVIDER DUTIES Sec. 651.101. DESIGNATION OF ONLINE SERVICE AGENT FOR REPORTING CERTAIN VIOLATIONS; NOTIFICATIONS. (a) Requires an online service provider to designate an agent to receive notifications of violations of Section 651.053 that are alleged to have occurred on the online service. Requires the online service provider to post in a conspicuous, publicly accessible location on the online service the name, address, telephone number, and e-mail address of the designated agent. (b) Requires that a notification under Subsection (a) meet certain criteria. Sec. 651.102. REMOVAL OF DIGITAL REPLICA. Requires an online service provider, on receiving a notification under Section 651.101, to take certain actions. Sec. 651.103. FALSE OR DECEPTIVE NOTICE PROHIBITED. Prohibits a person from submitting a notice under Section 651.101 that falsely or deceptively states certain claims. Sec. 651.104. PRODUCTS AND SERVICES CAPABLE OF PRODUCING DIGITAL REPLICAS; EXCEPTIONS AND VIOLATIONS BY MANUFACTURERS AND DISTRIBUTORS. Provides that a person does not violate Section 651.053 by manufacturing, importing, offering to the public, providing, or otherwise distributing a product or service unless the product or service meets certain criteria. SUBCHAPTER D. REGISTRATION OF POSTMORTEM RIGHTS Sec. 651.151. REGISTRATION OF POSTMORTEM RIGHTS. Provides that the renewal of a right described by Section 651.052(c)(2) (relating to providing that a digital replication right is exclusive to the right holder for a certain timeframe) is only effective if, before the two-year period described by that section, the right holder files a notice with the secretary of state (SOS) that contains certain information. Sec. 651.152. POSTMORTEM DIGITAL REPLICATION RIGHTS DIRECTORY. (a) Requires SOS to maintain and make available to the public a directory of postmortem digital replication rights registered under Section 651.151. (b) Authorizes a right holder to voluntarily apply to SOS for inclusion on the directory described by this section by filing a notice with SOS that complies with the form, content, and filing procedures prescribed by rule by SOS. (c) Authorizes SOS to impose a filing fee on a right holder for inclusion in the directory described by this section in amounts necessary to cover the cost of administering the directory. SUBCHAPTER E. ENFORCEMENT Sec. 651.201. AUTHORITY TO BRING UNAUTHORIZED USE ACTION: ELIGIBLE PLAINTIFF. Provides that an action under Section 651.202 or 651.203 is authorized to be brought only by certain persons. Sec. 651.202. INJUNCTIVE RELIEF FOR UNAUTHORIZED USE. Authorizes an eligible plaintiff to bring a private cause of action against a person who violates or threatens to violate this chapter to obtain injunctive relief or other equitable relief. Sec. 651.203. PRIVATE CAUSE OF ACTION FOR UNAUTHORIZED USE. (a) Defines "knowingly." (b) Authorizes an eligible plaintiff to bring a cause of action against another person who knowingly violates Section 651.053. (c) Authorizes a person, for purposes of Subsection (a), to be presumed to have acted knowingly if the person meets certain criteria. (d) Requires a person to bring a cause of action under this section not later than the third anniversary after the date on which the person discovered, or with due diligence should have discovered, the violation. (e) Provides that it is not a defense in a cause of action brought under this section that the person alleged to have violated Section 651.053 displayed or otherwise communicated to the public a disclaimer stating that the digital replica was unauthorized or disclosing that the digital replica was generated through the use of artificial intelligence or other technology. (f) Provides that in a cause of action brought under this section, a person that violates Section 651.053 is liable to the aggrieved person for certain damages. (g) Prohibits an online service provider that has an objectively reasonable belief that material claimed to be an unauthorized digital replica does not qualify as a digital replica from being liable for statutory or actual damages exceeding $1 million regardless of whether the material is ultimately determined to be an unauthorized digital replica. (h) Provides that the remedies available under this section and Section 26.013 (Liability for Unauthorized Use), Property Code, for a violation arising out of the same conduct are mutually exclusive. Sec. 651.204. ATTORNEY'S FEES. Provides that if the prevailing party is: (1) the party bringing the action, the court is required to award reasonable attorney's fees; or (2) the party defending the action, the court is required to award reasonable attorney's fees if the court determines that the action was not brought in good faith. Sec. 651.205. PRIVATE CAUSE OF ACTION FOR SUBMISSION OF CERTAIN FALSE OR DECEPTIVE NOTICE. (a) Provides that, except as provided by Subsection (b), a person who violates Section 651.103 is liable to the online service provider, a third party described by Section 651.102, or another person aggrieved by the violation for an amount equal to the greater of certain amounts. (b) Authorizes the online service provider, if a third party described by Section 651.102 files an action under this section, provided the action is filed not later than the 14th day after the date a third party receives notice under Section 651.102(2)(B) (relating to requiring an online service provider, if the online service hosts or otherwise stores third-party provided material on a system or network controlled or operated by or for the online service, to take reasonable steps to promptly notify the third party that provided the material that the online service provider has removed or disabled access to the material), to restore the removed material to the online service without incurring monetary liability to either the notifying party or the third party. SECTION 2. Provides that, to the extent of a conflict between Chapter 651, Business & Commerce Code, as added by this Act, and a provision of a contract, including a license agreement, or testamentary instrument entered into or executed before the effective date of this Act, the provision of the contract or instrument prevails. SECTION 3. Makes application of Subchapter E, Chapter 651, Business & Commerce Code, as added by this Act, prospective. SECTION 4. Effective date: September 1, 2025.
BILL ANALYSIS
Senate Research Center S.B. 1960
89R10617 SRA-F By: Schwertner
Business & Commerce
4/1/2025
As Filed
Senate Research Center
S.B. 1960
89R10617 SRA-F
By: Schwertner
Business & Commerce
4/1/2025
As Filed
AUTHOR'S / SPONSOR'S STATEMENT OF INTENT
Generative artificial intelligence (AI) and other emerging technologies create new possibilities to unlock artistic expression and enhance creativity. However, while they may have numerous benefits, these AI tools also bring up legal and ethical implications not considered in years prior. Sophisticated reproductions can be challenging to distinguish, and leave a person vulnerable to their voice or visual likeness being exploited without their consent.
S.B. 1960 establishes an individual's voice or visual likeness as a property right, and enables the individual or other applicable right holder to authorize its use. The bill prohibits the creation and distribution of digital replicas without permission, while also providing a process for expeditiously removing these fakes.
As proposed, S.B. 1960 amends current law relating to digital replication rights in the voice and visual likeness of individuals, provides private causes of action, and authorizes a fee.
RULEMAKING AUTHORITY
Rulemaking authority is expressly granted to the secretary of state in SECTION 1 (Section 651.152, Business & Commerce Code) of this bill.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends the Business & Commerce Code, by adding Title 14A, as follows:
TITLE 14A. DIGITAL REPLICAS
SUBTITLE A. DIGITAL REPLICATION RIGHTS
CHAPTER 651. VOICE OR VISUAL LIKENESS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 651.001. DEFINITIONS. Defines "digital replica," "digital replication right," "eligible plaintiff," "individual," "minor," "online service," "online service provider," "production," "right holder," and "sound recording artist."
Sec. 651.002. APPLICABILITY. Provides that this chapter applies only to an individual who is a resident of this state or was a resident of this state on the date the individual died.
SUBCHAPTER B. DIGITAL REPLICATION RIGHTS
Sec. 651.051. DIGITAL REPLICATION RIGHTS; PROPERTY RIGHT ESTABLISHED. Provides that an individual or other right holder has the right to authorize the use of the voice or visual likeness of the individual in a digital replica. Provides that the right is a property right licensable, wholly or partly, exclusively or nonexclusively, by the right holder, subject to the terms of a contract, including a licensing agreement, or testamentary instrument conveying digital replication rights to a right holder, and not assignable during the life of the individual.
Sec. 651.052. DIGITAL REPLICATION RIGHTS ON DEATH OF INDIVIDUAL. (a) Provides that a digital replication right does not expire on the death of an individual, regardless of whether the right is used commercially by the individual during the individual's lifetime.
(b) Provides that, subject to Chapter 26 (Use of a Deceased Individual's Name, Voice, Signature, Photograph, or Likeness), Property Code, and other applicable law, on the death of an individual the individual's digital replication right is transferable and licensable, wholly or partly, by the executors, heirs, assigns, licensees, or devisees of the individual and ownership of the right may be transferred, wholly or partly, by operation of law, will, or intestate succession.
(c) Provides that a digital replication right is exclusive to certain individuals.
(d) Provides that a digital replication right terminates on the earlier of certain dates.
(e) Provides that if a right holder died before September 1, 2025, the right holder's digital replication rights vest in the executors, heirs, assigns, or devisees of the right holder.
Sec. 651.053. UNAUTHORIZED USE OF DIGITAL REPLICA. Prohibits a person, except as provided by Section 651.054 and subject to Section 651.104, from producing a digital replica without the written consent of the right holder or publishing, reproducing, displaying, distributing, transmitting, or otherwise making available to the public a digital replica without the written consent of the right holder.
Sec. 651.054. PERMITTED USES. (a) Authorizes a person, except as provided by Subsection (b), to use a digital replica without the right holder's consent if the digital replica meets certain requirements.
(b) Provides that Subsection (a) does not apply to a digital replica used to depict sexual conduct, as defined by Section 21.16 (Unlawful Disclosure or Promotion of Intimate Visual Material), Penal Code.
Sec. 651.055. AUTHORITY TO LICENSE DIGITAL REPLICATION RIGHT. Authorizes an individual, except as provided by Section 651.056 or 651.057, during the individual's lifetime, to license the individual's digital replication right. Provides that a license under this section is valid only under certain circumstances.
Sec. 651.056. AUTHORITY TO LICENSE DIGITAL REPLICATION RIGHTS OF CERTAIN MINORS. Provides that, except as provided by Section 651.057, a license of the digital replication rights of a minor is valid only under certain circumstances.
Sec. 651.057. COLLECTIVE BARGAINING AGREEMENTS. Provides that Sections 651.055 and 651.056 do not apply if the license is governed by a collective bargaining agreement that addresses digital replicas.
Sec. 651.058. REQUIREMENTS FOR POSTMORTEM TRANSFER. Provides that a postmortem transfer or license of a digital replication right is valid only if the testamentary instrument transferring the right or the license agreement is in writing and signed by the right holder or an authorized representative of the right holder.
Sec. 651.059. CONTINUED USE BY FORMER LICENSEE OF DIGITAL REPLICA. Authorizes a digital replica that is embodied in a sound recording, image, audiovisual work, including an audiovisual work that does not have any accompanying sounds, or transmission, and the use of which is authorized under the terms of a license agreement, unless expressly prohibited by the license agreement, to continue to be used in a manner consistent with the terms of that license after the expiration or termination of the license agreement.
Sec. 651.060. VESTING OF CERTAIN DIGITAL REPLICATION RIGHTS. Provides that subject to Section 651.052(d)(2) (relating to providing that a digital replication right terminates on the date that is 70 years after the death of the individual) and to the terms of a contract, including a license agreement, or testamentary instrument entered into before September 1, 2025, if a right holder died before September 1, 2025, the right holder's digital replication rights vest in the executors, heirs, assigns, or devisees of the right holder.
SUBCHAPTER C. ONLINE SERVICE PROVIDER DUTIES
Sec. 651.101. DESIGNATION OF ONLINE SERVICE AGENT FOR REPORTING CERTAIN VIOLATIONS; NOTIFICATIONS. (a) Requires an online service provider to designate an agent to receive notifications of violations of Section 651.053 that are alleged to have occurred on the online service. Requires the online service provider to post in a conspicuous, publicly accessible location on the online service the name, address, telephone number, and e-mail address of the designated agent.
(b) Requires that a notification under Subsection (a) meet certain criteria.
Sec. 651.102. REMOVAL OF DIGITAL REPLICA. Requires an online service provider, on receiving a notification under Section 651.101, to take certain actions.
Sec. 651.103. FALSE OR DECEPTIVE NOTICE PROHIBITED. Prohibits a person from submitting a notice under Section 651.101 that falsely or deceptively states certain claims.
Sec. 651.104. PRODUCTS AND SERVICES CAPABLE OF PRODUCING DIGITAL REPLICAS; EXCEPTIONS AND VIOLATIONS BY MANUFACTURERS AND DISTRIBUTORS. Provides that a person does not violate Section 651.053 by manufacturing, importing, offering to the public, providing, or otherwise distributing a product or service unless the product or service meets certain criteria.
SUBCHAPTER D. REGISTRATION OF POSTMORTEM RIGHTS
Sec. 651.151. REGISTRATION OF POSTMORTEM RIGHTS. Provides that the renewal of a right described by Section 651.052(c)(2) (relating to providing that a digital replication right is exclusive to the right holder for a certain timeframe) is only effective if, before the two-year period described by that section, the right holder files a notice with the secretary of state (SOS) that contains certain information.
Sec. 651.152. POSTMORTEM DIGITAL REPLICATION RIGHTS DIRECTORY. (a) Requires SOS to maintain and make available to the public a directory of postmortem digital replication rights registered under Section 651.151.
(b) Authorizes a right holder to voluntarily apply to SOS for inclusion on the directory described by this section by filing a notice with SOS that complies with the form, content, and filing procedures prescribed by rule by SOS.
(c) Authorizes SOS to impose a filing fee on a right holder for inclusion in the directory described by this section in amounts necessary to cover the cost of administering the directory.
SUBCHAPTER E. ENFORCEMENT
Sec. 651.201. AUTHORITY TO BRING UNAUTHORIZED USE ACTION: ELIGIBLE PLAINTIFF. Provides that an action under Section 651.202 or 651.203 is authorized to be brought only by certain persons.
Sec. 651.202. INJUNCTIVE RELIEF FOR UNAUTHORIZED USE. Authorizes an eligible plaintiff to bring a private cause of action against a person who violates or threatens to violate this chapter to obtain injunctive relief or other equitable relief.
Sec. 651.203. PRIVATE CAUSE OF ACTION FOR UNAUTHORIZED USE. (a) Defines "knowingly."
(b) Authorizes an eligible plaintiff to bring a cause of action against another person who knowingly violates Section 651.053.
(c) Authorizes a person, for purposes of Subsection (a), to be presumed to have acted knowingly if the person meets certain criteria.
(d) Requires a person to bring a cause of action under this section not later than the third anniversary after the date on which the person discovered, or with due diligence should have discovered, the violation.
(e) Provides that it is not a defense in a cause of action brought under this section that the person alleged to have violated Section 651.053 displayed or otherwise communicated to the public a disclaimer stating that the digital replica was unauthorized or disclosing that the digital replica was generated through the use of artificial intelligence or other technology.
(f) Provides that in a cause of action brought under this section, a person that violates Section 651.053 is liable to the aggrieved person for certain damages.
(g) Prohibits an online service provider that has an objectively reasonable belief that material claimed to be an unauthorized digital replica does not qualify as a digital replica from being liable for statutory or actual damages exceeding $1 million regardless of whether the material is ultimately determined to be an unauthorized digital replica.
(h) Provides that the remedies available under this section and Section 26.013 (Liability for Unauthorized Use), Property Code, for a violation arising out of the same conduct are mutually exclusive.
Sec. 651.204. ATTORNEY'S FEES. Provides that if the prevailing party is:
(1) the party bringing the action, the court is required to award reasonable attorney's fees; or
(2) the party defending the action, the court is required to award reasonable attorney's fees if the court determines that the action was not brought in good faith.
Sec. 651.205. PRIVATE CAUSE OF ACTION FOR SUBMISSION OF CERTAIN FALSE OR DECEPTIVE NOTICE. (a) Provides that, except as provided by Subsection (b), a person who violates Section 651.103 is liable to the online service provider, a third party described by Section 651.102, or another person aggrieved by the violation for an amount equal to the greater of certain amounts.
(b) Authorizes the online service provider, if a third party described by Section 651.102 files an action under this section, provided the action is filed not later than the 14th day after the date a third party receives notice under Section 651.102(2)(B) (relating to requiring an online service provider, if the online service hosts or otherwise stores third-party provided material on a system or network controlled or operated by or for the online service, to take reasonable steps to promptly notify the third party that provided the material that the online service provider has removed or disabled access to the material), to restore the removed material to the online service without incurring monetary liability to either the notifying party or the third party.
SECTION 2. Provides that, to the extent of a conflict between Chapter 651, Business & Commerce Code, as added by this Act, and a provision of a contract, including a license agreement, or testamentary instrument entered into or executed before the effective date of this Act, the provision of the contract or instrument prevails.
SECTION 3. Makes application of Subchapter E, Chapter 651, Business & Commerce Code, as added by this Act, prospective.
SECTION 4. Effective date: September 1, 2025.