Texas 2025 - 89th Regular

Texas Senate Bill SB1960 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	By: Schwertner, Parker S.B. No. 1960
2		-
3		-
	1	+	By: Schwertner S.B. No. 1960
	2	+	(In the Senate - Filed March 5, 2025; March 17, 2025, read
	3	+	first time and referred to Committee on Business & Commerce;
	4	+	April 9, 2025, reported favorably by the following vote: Yeas 10,
	5	+	Nays 0; April 9, 2025, sent to printer.)
	6	+	Click here to see the committee vote
4	7
5	8
6	9		A BILL TO BE ENTITLED
7	10		AN ACT
8	11		relating to digital replication rights in the voice and visual
9	12		likeness of individuals; providing private causes of action;
10	13		authorizing a fee.
11	14		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	15		SECTION 1. The Business & Commerce Code is amended by adding
13	16		Title 14A to read as follows:
14	17		TITLE 14A. DIGITAL REPLICAS
15	18		SUBTITLE A. DIGITAL REPLICATION RIGHTS
16	19		CHAPTER 651. VOICE OR VISUAL LIKENESS
17	20		SUBCHAPTER A. GENERAL PROVISIONS
18	21		Sec. 651.001. DEFINITIONS. In this chapter:
19	22		(1) "Digital replica" means a newly created,
20	23		computer-generated, highly realistic electronic representation
21	24		that is readily identifiable as the voice or visual likeness of an
22	25		individual that:
23	26		(A) is embodied in a sound recording, image,
24	27		audiovisual work, including an audiovisual work that does not have
25	28		any accompanying sounds, or transmission:
26	29		(i) in which the individual did not
27	30		actually perform or appear; or
28	31		(ii) that is a version of a sound recording,
29	32		image, or audiovisual work in which the individual did perform or
30	33		appear, but in which the fundamental character of the performance
31	34		or appearance has been materially altered; and
32	35		(B) does not include the electronic
33	36		reproduction, use of a sample of one sound recording or audiovisual
34	37		work into another, remixing, mastering, or digital remastering of a
35	38		sound recording or audiovisual work authorized by the copyright
36	39		holder.
37	40		(2) "Digital replication right" means the right
38	41		established under Subchapter B.
39	42		(3) "Eligible plaintiff" means a person authorized to
40	43		bring an action under Section 651.201.
41	44		(4) "Individual" means a natural or deceased person.
42	45		(5) "Minor" means a person younger than 18 years of age
43	46		who:
44	47		(A) has never been married; and
45	48		(B) has not had the disabilities of minority
46	49		removed for general purposes.
47	50		(6) "Online service" means:
48	51		(A) any publicly accessible Internet website,
49	52		online application, mobile application, or virtual reality
50	53		environment, including a social media service, social media
51	54		network, or online application store, that predominantly provides a
52	55		community forum for user-generated content, including the sharing
53	56		of videos, images, games, audio files, or other material; and
54	57		(B) a digital music provider, as defined by 17
55	58		U.S.C. Section 115(e).
56	59		(7) "Online service provider" means the owner of an
57	60		online service.
58	61		(8) "Production" means the creation of a digital
59	62		replica.
60	63		(9) "Right holder" means:
61	64		(A) the individual whose voice or visual likeness
62	65		is simulated or otherwise copied in or as a digital replica; and
63	66		(B) if applicable, any other person other than
64	67		the individual described by Paragraph (A) that acquires, through a
65	68		license, inheritance, or otherwise, the right to authorize the use
66	69		of the individual's voice or visual likeness in a digital replica.
67	70		(10) "Sound recording artist" means an individual who
68	71		creates or performs in sound recordings for economic gain or for the
69	72		livelihood of the individual.
70	73		Sec. 651.002. APPLICABILITY. This chapter applies only to
71	74		an individual who:
72	75		(1) is a resident of this state; or
73	76		(2) was a resident of this state on the date the
74	77		individual died.
75	78		SUBCHAPTER B. DIGITAL REPLICATION RIGHTS
76	79		Sec. 651.051. DIGITAL REPLICATION RIGHTS; PROPERTY RIGHT
77	80		ESTABLISHED. An individual or other right holder has the right to
78	81		authorize the use of the voice or visual likeness of the individual
79	82		in a digital replica. The right is:
80	83		(1) a property right;
81	84		(2) licensable, wholly or partly, exclusively or
82	85		nonexclusively, by the right holder, subject to the terms of a
83	86		contract, including a licensing agreement, or testamentary
84	87		instrument conveying digital replication rights to a right holder;
85	88		and
86	89		(3) not assignable during the life of the individual.
87	90		Sec. 651.052. DIGITAL REPLICATION RIGHTS ON DEATH OF
88		-	INDIVIDUAL. ~~(a) A digital replication right does not expire on the~~ (a) A digital replication right does not expire on the
	91	+	INDIVIDUAL. (a) A digital replication right does not expire on the
89	92		death of an individual, regardless of whether the right is used
90	93		commercially by the individual during the individual's lifetime.
91	94		(b) Subject to Chapter 26, Property Code, and other
92	95		applicable law, on the death of an individual:
93	96		(1) the individual's digital replication right is
94	97		transferable and licensable, wholly or partly, by the executors,
95	98		heirs, assigns, licensees, or devisees of the individual; and
96	99		(2) ownership of the right may be transferred, wholly
97	100		or partly, by operation of law, will, or intestate succession.
98	101		(c) A digital replication right is exclusive to:
99	102		(1) the individual, subject to the licensing of the
100	103		right during the lifetime of the individual; and
101	104		(2) the right holder:
102	105		(A) for a period of 10 years after the death of
103	106		the individual; and
104	107		(B) subject to Section 651.151, if the right
105	108		holder demonstrates active and authorized public use of the voice
106	109		or visual likeness of the individual during the 2-year period
107	110		preceding the expiration of the 10-year period described in
108	111		Paragraph (A), for an additional 5-year period, subject to renewal
109	112		for additional 5-year periods, only if the right holder can
110	113		demonstrate authorized public use of the voice or visual likeness
111	114		of the individual during the 2-year period preceding the expiration
112	115		of each additional 5-year period.
113	116		(d) A digital replication right terminates on the earlier
114	117		of:
115	118		(1) the date on which the 10-year period or 5-year
116	119		period, as applicable, described by Subsection (c)(2) expires
117	120		without renewal; or
118	121		(2) the date that is 70 years after the death of the
119	122		individual.
120	123		(e) If a right holder died before September 1, 2025, the
121	124		right holder's digital replication rights vest in the executors,
122	125		heirs, assigns, or devisees of the right holder.
123	126		Sec. 651.053. UNAUTHORIZED USE OF DIGITAL REPLICA. Except
124	127		as provided by Section 651.054 and subject to Section 651.104, a
125	128		person may not:
126	129		(1) produce a digital replica without the written
127	130		consent of the right holder; or
128	131		(2) publish, reproduce, display, distribute,
129	132		transmit, or otherwise make available to the public a digital
130	133		replica without the written consent of the right holder.
131	134		Sec. 651.054. PERMITTED USES. (a) Except as provided by
132	135		Subsection (b), a person may use a digital replica without the right
133	136		holder's consent if the digital replica is:
134	137		(1) produced or used in a bona fide news, public
135	138		affairs, or sports broadcast or account, provided that the digital
136	139		replica is the subject of, or is materially relevant to, the subject
137	140		of the broadcast or account;
138	141		(2) a representation of the individual in a
139	142		documentary, biographical, or historical manner, including some
140	143		degree of fictionalization, unless:
141	144		(A) the production or use of that digital replica
142	145		creates the false impression that the digital replica is an
143	146		authentic sound recording, image, transmission, or audiovisual
144	147		work in which the individual participated; or
145	148		(B) the digital replica is embodied in a musical
146	149		sound recording that is synchronized to accompany a motion picture
147	150		or other audiovisual work, except to the extent that the use of that
148	151		digital replica is protected by the First Amendment to the United
149	152		States Constitution;
150	153		(3) produced or used consistent with the public
151	154		interest in bona fide commentary, criticism, scholarship, satire,
152	155		or parody;
153	156		(4) used in a fleeting or negligible manner; or
154	157		(5) used in an advertisement or commercial
155	158		announcement for a purpose described by Subdivisions (1) through
156	159		(4) and the digital replica is relevant to the subject of the
157	160		advertisement or announcement.
158	161		(b) Subsection (a) does not apply to a digital replica used
159	162		to depict sexual conduct, as defined by Section 21.16, Penal Code.
160	163		Sec. 651.055. AUTHORITY TO LICENSE DIGITAL REPLICATION
161	164		RIGHT. Except as provided by Section 651.056 or 651.057, an
162	165		individual may, during the individual's lifetime, license the
163	166		individual's digital replication right. A license under this
164	167		section is valid only:
165	168		(1) to the extent the duration of the license does not
166	169		extend beyond the 10th anniversary of the date the license
167	170		agreement is entered into; and
168	171		(2) if the license agreement:
169	172		(A) is in writing and signed by the individual or
170	173		an authorized representative of the individual; and
171	174		(B) includes a reasonably specific description
172	175		of the intended uses of the digital replica.
173	176		Sec. 651.056. AUTHORITY TO LICENSE DIGITAL REPLICATION
174	177		RIGHTS OF CERTAIN MINORS. Except as provided by Section 651.057, a
175	178		license of the digital replication rights of a minor is valid only:
176	179		(1) to the extent the duration of the license does not
177	180		extend beyond the earlier of:
178	181		(A) the fifth anniversary of the date the license
179	182		agreement is entered into; or
180	183		(B) the minor's 18th birthday;
181	184		(2) if the license agreement:
182	185		(A) is in writing and signed by the minor's
183	186		parents or legal guardians; and
184	187		(B) includes a reasonably specific description
185	188		of the intended uses of the digital replica; and
186	189		(3) if the agreement is approved by a court in
187	190		accordance with Subchapter B, Chapter 1356, Estates Code.
188	191		Sec. 651.057. COLLECTIVE BARGAINING AGREEMENTS. Sections
189	192		651.055 and 651.056 do not apply if the license is governed by a
190	193		collective bargaining agreement that addresses digital replicas.
191	194		Sec. 651.058. REQUIREMENTS FOR POSTMORTEM TRANSFER. A
192	195		postmortem transfer or license of a digital replication right is
193	196		valid only if the testamentary instrument transferring the right or
194	197		the license agreement is in writing and signed by the right holder
195	198		or an authorized representative of the right holder.
196	199		Sec. 651.059. CONTINUED USE BY FORMER LICENSEE OF DIGITAL
197	200		REPLICA. Unless expressly prohibited by the license agreement, a
198	201		digital replica that is embodied in a sound recording, image,
199	202		audiovisual work, including an audiovisual work that does not have
200	203		any accompanying sounds, or transmission, and the use of which is
201	204		authorized under the terms of a license agreement, may continue to
202	205		be used in a manner consistent with the terms of that license after
203	206		the expiration or termination of the license agreement.
204	207		Sec. 651.060. VESTING OF CERTAIN DIGITAL REPLICATION
205	208		RIGHTS. Subject to Section 651.052(d)(2) and to the terms of a
206	209		contract, including a license agreement, or testamentary
207	210		instrument entered into before September 1, 2025, if a right holder
208	211		died before September 1, 2025, the right holder's digital
209	212		replication rights vest in the executors, heirs, assigns, or
210	213		devisees of the right holder.
211	214		SUBCHAPTER C. ONLINE SERVICE PROVIDER DUTIES
212	215		Sec. 651.101. DESIGNATION OF ONLINE SERVICE AGENT FOR
213	216		REPORTING CERTAIN VIOLATIONS; NOTIFICATIONS. (a) An online
214	217		service provider shall designate an agent to receive notifications
215	218		of violations of Section 651.053 that are alleged to have occurred
216	219		on the online service. The online service provider shall post in a
217	220		conspicuous, publicly accessible location on the online service the
218	221		name, address, telephone number, and e-mail address of the
219	222		designated agent.
220	223		(b) A notification under Subsection (a) must:
221		-	(1) be in writing;
	224	+	(1) be in writing:
222	225		(2) be submitted by and include the physical or
223	226		electronic signature of:
224	227		(A) the right holder or other eligible plaintiff;
225	228		or
226	229		(B) a person authorized to act on behalf of the
227	230		right holder or other eligible plaintiff;
228	231		(3) identify the individual whose voice or visual
229	232		likeness is being used in the alleged unauthorized digital replica;
230	233		(4) identify the material containing the alleged
231	234		unauthorized digital replica, including information sufficient to
232	235		allow the online service provider to locate the replica;
233	236		(5) include contact information reasonably sufficient
234	237		to permit the online service provider to contact the notifying
235	238		party, such as an address, telephone number, or e-mail address;
236	239		(6) include a statement that the notifying person
237	240		believes in good faith that the material is an unauthorized use of a
238	241		digital replica;
239	242		(7) if the notifying party is not the right holder or
240	243		other eligible plaintiff, include a statement that the notifying
241	244		party has the authority to act on behalf of the right holder or
242	245		eligible plaintiff, as applicable; and
243	246		(8) for the purposes of Section 651.102, include
244	247		information reasonably sufficient to:
245	248		(A) identify the reference or link to the
246	249		material or activity claimed to be an unauthorized digital replica
247	250		that is to be removed or to which access is to be disabled; and
248	251		(B) permit the online service provider to locate
249	252		the reference or link described in Paragraph (A).
250	253		Sec. 651.102. REMOVAL OF DIGITAL REPLICA. On receiving a
251	254		notification under Section 651.101, the online service provider
252	255		shall:
253	256		(1) remove from or disable access to the material that
254	257		is claimed to be an unauthorized digital replica on the online
255	258		service as soon as is technically and practically feasible; and
256	259		(2) if the online service hosts or otherwise stores
257	260		third-party provided material on a system or network controlled or
258	261		operated by or for the online service:
259	262		(A) remove or disable access to all instances of
260	263		the material or an activity using the material that is claimed to
261	264		be an unauthorized digital replica as soon as is technically and
262	265		practically feasible for that online service; and
263	266		(B) take reasonable steps to promptly notify the
264	267		third party that provided the material that the online service
265	268		provider has removed or disabled access to the material.
266	269		Sec. 651.103. FALSE OR DECEPTIVE NOTICE PROHIBITED. A
267	270		person may not submit a notice under Section 651.101 that falsely or
268	271		deceptively states that:
269	272		(1) the material requested to be removed is or
270	273		embodies an unauthorized digital replica;
271	274		(2) the person is authorized to submit the notice
272	275		under Section 651.101(b)(2); or
273	276		(3) use of the digital replica is not authorized by the
274	277		right holder or by other law.
275	278		Sec. 651.104. PRODUCTS AND SERVICES CAPABLE OF PRODUCING
276	279		DIGITAL REPLICAS; EXCEPTIONS AND VIOLATIONS BY MANUFACTURERS AND
277	280		DISTRIBUTORS. A person does not violate Section 651.053 by
278	281		manufacturing, importing, offering to the public, providing, or
279	282		otherwise distributing a product or service unless the product or
280	283		service:
281	284		(1) is primarily designed to produce one or more
282	285		unauthorized digital replicas;
283	286		(2) has limited commercially significant purpose or
284	287		use other than to produce an unauthorized digital replica; or
285	288		(3) is marketed, advertised, or otherwise promoted for
286	289		use in producing an unauthorized digital replica by:
287	290		(A) that person; or
288	291		(B) another:
289	292		(i) acting in concert with that person; or
290	293		(ii) with that person's knowledge.
291	294		SUBCHAPTER D. REGISTRATION OF POSTMORTEM RIGHTS
292	295		Sec. 651.151. REGISTRATION OF POSTMORTEM RIGHTS. The
293	296		renewal of a right described by Section 651.052(c)(2) is only
294	297		effective if, before the two-year period described by that section,
295	298		the right holder files a notice with the secretary of state that
296	299		contains:
297	300		(1) the name of the deceased individual;
298	301		(2) a statement, under penalty of perjury, that the
299	302		right holder has engaged in active and authorized public use of the
300	303		voice or visual likeness during the applicable two-year period;
301	304		(3) the identity of and contact information for the
302	305		right holder; and
303	306		(4) any other information the secretary of state deems
304	307		necessary.
305	308		Sec. 651.152. POSTMORTEM DIGITAL REPLICATION RIGHTS
306	309		DIRECTORY. (a) The secretary of state shall maintain and make
307	310		available to the public a directory of postmortem digital
308	311		replication rights registered under Section 651.151.
309	312		(b) A right holder may voluntarily apply to the secretary of
310	313		state for inclusion on the directory described by this section by
311	314		filing a notice with the secretary of state that complies with the
312	315		form, content, and filing procedures prescribed by rule by the
313	316		secretary of state.
314	317		(c) The secretary of state may impose a filing fee on a right
315	318		holder for inclusion in the directory described by this section in
316	319		amounts necessary to cover the cost of administering the directory.
317	320		SUBCHAPTER E. ENFORCEMENT
318	321		Sec. 651.201. AUTHORITY TO BRING UNAUTHORIZED USE ACTION:
319	322		ELIGIBLE PLAINTIFF. An action under Section 651.202 or 651.203 may
320	323		be brought only by:
321	324		(1) a right holder;
322	325		(2) if the individual who is the subject of a digital
323	326		replica is a minor, the parent or guardian of the individual;
324	327		(3) any other person that controls, including through
325	328		a license, the right to authorize the use of the voice or visual
326	329		likeness of the right holder;
327	330		(4) any other person that owns or controls the right to
328	331		authorize the use of the voice or visual likeness of a deceased
329	332		individual; or
330	333		(5) in the case of a digital replica of an individual
331	334		who is a sound recording artist, any person that has, directly or
332	335		indirectly, entered into:
333	336		(A) a contract for the exclusive personal
334	337		services of the sound recording artist as a sound recording artist;
335	338		or
336	339		(B) an exclusive license to distribute or
337	340		transmit one or more works that capture the audio performance of the
338	341		sound recording artist.
339	342		Sec. 651.202. INJUNCTIVE RELIEF FOR UNAUTHORIZED USE. An
340	343		eligible plaintiff may bring a private cause of action against a
341	344		person who violates or threatens to violate this chapter to obtain:
342	345		(1) injunctive relief; or
343	346		(2) other equitable relief.
344	347		Sec. 651.203. PRIVATE CAUSE OF ACTION FOR UNAUTHORIZED USE.
345	348		(a) In this section, "knowingly" means having actual knowledge of
346	349		or acting with deliberate ignorance of the prohibition involved.
347	350		(b) An eligible plaintiff may bring a cause of action
348	351		against another person who knowingly violates Section 651.053.
349	352		(c) For purposes of Subsection (a), a person may be presumed
350	353		to have acted knowingly if the person:
351	354		(1) is an online service provider that received a
352	355		notification under Section 651.101 and failed to remove or disable
353	356		access to the material under Section 651.102; or
354	357		(2) wilfully avoided having knowledge that:
355	358		(A) the applicable material is a digital replica;
356	359		and
357	360		(B) the digital replica was not authorized by a
358	361		right holder.
359	362		(d) A person must bring a cause of action under this section
360	363		not later than the third anniversary after the date on which the
361	364		person discovered, or with due diligence should have discovered,
362	365		the violation.
363	366		(e) It is not a defense in a cause of action brought under
364	367		this section that the person alleged to have violated Section
365	368		651.053 displayed or otherwise communicated to the public a
366	369		disclaimer stating that the digital replica was unauthorized or
367	370		disclosing that the digital replica was generated through the use
368	371		of artificial intelligence or other technology.
369	372		(f) In a cause of action brought under this section, a
370	373		person that violates Section 651.053 is liable to the aggrieved
371	374		person for:
372	375		(1) subject to Subsection (g), the greater of:
373	376		(A) statutory damages in the amount of:
374	377		(i) $5,000 per work embodying the
375	378		unauthorized digital replica, if the violator is an individual;
376	379		(ii) $5,000 per violation, if the violator
377	380		is an online service provider; and
378	381		(iii) $25,000 per work embodying the
379	382		unauthorized digital replica, if the violator is an entity other
380	383		than an online service provider; or
381	384		(B) the sum of actual damages and profits
382	385		attributable to the unauthorized use of the digital replica; and
383	386		(2) if a wilful violation is proven under which the
384	387		violator is found to have acted with malice, fraud, knowledge, or
385	388		wilful avoidance of knowledge that the conduct violated the law,
386	389		punitive damages.
387	390		(g) An online service provider that has an objectively
388	391		reasonable belief that material claimed to be an unauthorized
389	392		digital replica does not qualify as a digital replica may not be
390	393		liable for statutory or actual damages exceeding $1 million
391	394		regardless of whether the material is ultimately determined to be
392	395		an unauthorized digital replica.
393	396		(h) The remedies available under this section and Section
394	397		26.013, Property Code, for a violation arising out of the same
395	398		conduct are mutually exclusive.
396	399		Sec. 651.204. ATTORNEY'S FEES. If the prevailing party is:
397	400		(1) the party bringing the action, the court shall
398	401		award reasonable attorney's fees; or
399	402		(2) the party defending the action, the court shall
400	403		award reasonable attorney's fees if the court determines that the
401	404		action was not brought in good faith.
402	405		Sec. 651.205. PRIVATE CAUSE OF ACTION FOR SUBMISSION OF
403	406		CERTAIN FALSE OR DECEPTIVE NOTICE. (a) Except as provided by
404	407		Subsection (b), a person who violates Section 651.103 is liable to
405	408		the online service provider, a third party described by Section
406	409		651.102, or another person aggrieved by the violation for an amount
407	410		equal to the greater of:
408	411		(1) $5,000; or
409	412		(2) actual damages and court costs and reasonable
410	413		attorney's fees, including actual damages arising out of an online
411	414		service provider's reliance on the notice in removing or disabling
412	415		access to the material or activity claimed to be an unauthorized
413	416		digital replica.
414	417		(b) If a third party described by Section 651.102 files an
415	418		action under this section, the online service provider may,
416	419		provided the action is filed not later than the 14th day after the
417	420		date a third party receives notice under Section 651.102(2)(B),
418	421		restore the removed material to the online service without
419	422		incurring monetary liability to either the notifying party or the
420	423		third party.
421	424		SECTION 2. To the extent of a conflict between Chapter 651,
422	425		Business & Commerce Code, as added by this Act, and a provision of a
423	426		contract, including a license agreement, or testamentary
424	427		instrument entered into or executed before the effective date of
425	428		this Act, the provision of the contract or instrument prevails.
426	429		SECTION 3. Subchapter E, Chapter 651, Business & Commerce
427	430		Code, as added by this Act, applies only to conduct occurring on or
428	431		after the effective date of this Act.
429	432		SECTION 4. This Act takes effect September 1, 2025.
	433	+	* * * * *