By: Schwertner, Parker S.B. No. 1960
A BILL TO BE ENTITLED
AN ACT
relating to digital replication rights in the voice and visual
likeness of individuals; providing private causes of action;
authorizing a fee.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The Business & Commerce Code is amended by adding
Title 14A to read 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. In this chapter:
(1) "Digital replica" means a newly created,
computer-generated, highly realistic electronic representation
that is readily identifiable as the voice or visual likeness of an
individual that:
(A) is embodied in a sound recording, image,
audiovisual work, including an audiovisual work that does not have
any accompanying sounds, or transmission:
(i) in which the individual did not
actually perform or appear; or
(ii) that is a version of a sound recording,
image, or audiovisual work in which the individual did perform or
appear, but in which the fundamental character of the performance
or appearance has been materially altered; and
(B) 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 the copyright
holder.
(2) "Digital replication right" means the right
established under Subchapter B.
(3) "Eligible plaintiff" means a person authorized to
bring an action under Section 651.201.
(4) "Individual" means a natural or deceased person.
(5) "Minor" means a person younger than 18 years of age
who:
(A) has never been married; and
(B) has not had the disabilities of minority
removed for general purposes.
(6) "Online service" means:
(A) any publicly accessible Internet website,
online application, mobile application, or virtual reality
environment, including a social media service, social media
network, or online application store, that predominantly provides a
community forum for user-generated content, including the sharing
of videos, images, games, audio files, or other material; and
(B) a digital music provider, as defined by 17
U.S.C. Section 115(e).
(7) "Online service provider" means the owner of an
online service.
(8) "Production" means the creation of a digital
replica.
(9) "Right holder" means:
(A) the individual whose voice or visual likeness
is simulated or otherwise copied in or as a digital replica; and
(B) if applicable, any other person other than
the individual described by Paragraph (A) that acquires, through a
license, inheritance, or otherwise, the right to authorize the use
of the individual's voice or visual likeness in a digital replica.
(10) "Sound recording artist" means an individual who
creates or performs in sound recordings for economic gain or for the
livelihood of the individual.
Sec. 651.002. APPLICABILITY. This chapter applies only to
an individual who:
(1) is a resident of this state; or
(2) 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. 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. The right is:
(1) a property right;
(2) 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
(3) not assignable during the life of the individual.
Sec. 651.052. DIGITAL REPLICATION RIGHTS ON DEATH OF
INDIVIDUAL. (a) A digital replication right does not expire on the (a) 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) Subject to Chapter 26, Property Code, and other
applicable law, on the death of an individual:
(1) 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
(2) ownership of the right may be transferred, wholly
or partly, by operation of law, will, or intestate succession.
(c) A digital replication right is exclusive to:
(1) the individual, subject to the licensing of the
right during the lifetime of the individual; and
(2) the right holder:
(A) for a period of 10 years after the death of
the individual; and
(B) subject to Section 651.151, if the right
holder demonstrates active and authorized public use of the voice
or visual likeness of the individual during the 2-year period
preceding the expiration of the 10-year period described in
Paragraph (A), for an additional 5-year period, subject to renewal
for additional 5-year periods, only if the right holder can
demonstrate authorized public use of the voice or visual likeness
of the individual during the 2-year period preceding the expiration
of each additional 5-year period.
(d) A digital replication right terminates on the earlier
of:
(1) the date on which the 10-year period or 5-year
period, as applicable, described by Subsection (c)(2) expires
without renewal; or
(2) the date that is 70 years after the death of the
individual.
(e) 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. Except
as provided by Section 651.054 and subject to Section 651.104, a
person may not:
(1) produce a digital replica without the written
consent of the right holder; or
(2) publish, reproduce, display, distribute,
transmit, or otherwise make available to the public a digital
replica without the written consent of the right holder.
Sec. 651.054. PERMITTED USES. (a) Except as provided by
Subsection (b), a person may use a digital replica without the right
holder's consent if the digital replica is:
(1) 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 materially relevant to, the subject
of the broadcast or account;
(2) a representation of the individual in a
documentary, biographical, or historical manner, including some
degree of fictionalization, unless:
(A) the production or use of that digital replica
creates the false impression that the digital replica is an
authentic sound recording, image, transmission, or audiovisual
work in which the individual participated; or
(B) the digital replica is embodied in a musical
sound recording that is synchronized to accompany a motion picture
or other audiovisual work, except to the extent that the use of that
digital replica is protected by the First Amendment to the United
States Constitution;
(3) produced or used consistent with the public
interest in bona fide commentary, criticism, scholarship, satire,
or parody;
(4) used in a fleeting or negligible manner; or
(5) used in an advertisement or commercial
announcement for a purpose described by Subdivisions (1) through
(4) and the digital replica is relevant to the subject of the
advertisement or announcement.
(b) Subsection (a) does not apply to a digital replica used
to depict sexual conduct, as defined by Section 21.16, Penal Code.
Sec. 651.055. AUTHORITY TO LICENSE DIGITAL REPLICATION
RIGHT. Except as provided by Section 651.056 or 651.057, an
individual may, during the individual's lifetime, license the
individual's digital replication right. A license under this
section is valid only:
(1) to the extent the duration of the license does not
extend beyond the 10th anniversary of the date the license
agreement is entered into; and
(2) if the license agreement:
(A) is in writing and signed by the individual or
an authorized representative of the individual; and
(B) includes a reasonably specific description
of the intended uses of the digital replica.
Sec. 651.056. AUTHORITY TO LICENSE DIGITAL REPLICATION
RIGHTS OF CERTAIN MINORS. Except as provided by Section 651.057, a
license of the digital replication rights of a minor is valid only:
(1) to the extent the duration of the license does not
extend beyond the earlier of:
(A) the fifth anniversary of the date the license
agreement is entered into; or
(B) the minor's 18th birthday;
(2) if the license agreement:
(A) is in writing and signed by the minor's
parents or legal guardians; and
(B) includes a reasonably specific description
of the intended uses of the digital replica; and
(3) if the agreement is approved by a court in
accordance with Subchapter B, Chapter 1356, Estates Code.
Sec. 651.057. COLLECTIVE BARGAINING AGREEMENTS. 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. 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. Unless expressly prohibited by the license agreement, 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, may 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. Subject to Section 651.052(d)(2) 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) An online
service provider shall designate an agent to receive notifications
of violations of Section 651.053 that are alleged to have occurred
on the online service. The online service provider shall 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) A notification under Subsection (a) must:
(1) be in writing;
(2) be submitted by and include the physical or
electronic signature of:
(A) the right holder or other eligible plaintiff;
or
(B) a person authorized to act on behalf of the
right holder or other eligible plaintiff;
(3) identify the individual whose voice or visual
likeness is being used in the alleged unauthorized digital replica;
(4) identify the material containing the alleged
unauthorized digital replica, including information sufficient to
allow the online service provider to locate the replica;
(5) include contact information reasonably sufficient
to permit the online service provider to contact the notifying
party, such as an address, telephone number, or e-mail address;
(6) include a statement that the notifying person
believes in good faith that the material is an unauthorized use of a
digital replica;
(7) if the notifying party is not the right holder or
other eligible plaintiff, include a statement that the notifying
party has the authority to act on behalf of the right holder or
eligible plaintiff, as applicable; and
(8) for the purposes of Section 651.102, include
information reasonably sufficient to:
(A) identify the reference or link to the
material or activity claimed to be an unauthorized digital replica
that is to be removed or to which access is to be disabled; and
(B) permit the online service provider to locate
the reference or link described in Paragraph (A).
Sec. 651.102. REMOVAL OF DIGITAL REPLICA. On receiving a
notification under Section 651.101, the online service provider
shall:
(1) remove from or disable access to the material that
is claimed to be an unauthorized digital replica on the online
service as soon as is technically and practically feasible; and
(2) 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:
(A) remove or disable access to all instances of
the material or an activity using the material that is claimed to
be an unauthorized digital replica as soon as is technically and
practically feasible for that online service; and
(B) 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.
Sec. 651.103. FALSE OR DECEPTIVE NOTICE PROHIBITED. A
person may not submit a notice under Section 651.101 that falsely or
deceptively states that:
(1) the material requested to be removed is or
embodies an unauthorized digital replica;
(2) the person is authorized to submit the notice
under Section 651.101(b)(2); or
(3) use of the digital replica is not authorized by the
right holder or by other law.
Sec. 651.104. PRODUCTS AND SERVICES CAPABLE OF PRODUCING
DIGITAL REPLICAS; EXCEPTIONS AND VIOLATIONS BY MANUFACTURERS AND
DISTRIBUTORS. 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:
(1) is primarily designed to produce one or more
unauthorized digital replicas;
(2) has limited commercially significant purpose or
use other than to produce an unauthorized digital replica; or
(3) is marketed, advertised, or otherwise promoted for
use in producing an unauthorized digital replica by:
(A) that person; or
(B) another:
(i) acting in concert with that person; or
(ii) with that person's knowledge.
SUBCHAPTER D. REGISTRATION OF POSTMORTEM RIGHTS
Sec. 651.151. REGISTRATION OF POSTMORTEM RIGHTS. The
renewal of a right described by Section 651.052(c)(2) is only
effective if, before the two-year period described by that section,
the right holder files a notice with the secretary of state that
contains:
(1) the name of the deceased individual;
(2) a statement, under penalty of perjury, that the
right holder has engaged in active and authorized public use of the
voice or visual likeness during the applicable two-year period;
(3) the identity of and contact information for the
right holder; and
(4) any other information the secretary of state deems
necessary.
Sec. 651.152. POSTMORTEM DIGITAL REPLICATION RIGHTS
DIRECTORY. (a) The secretary of state shall maintain and make
available to the public a directory of postmortem digital
replication rights registered under Section 651.151.
(b) A right holder may voluntarily apply to the secretary of
state for inclusion on the directory described by this section by
filing a notice with the secretary of state that complies with the
form, content, and filing procedures prescribed by rule by the
secretary of state.
(c) The secretary of state may 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. An action under Section 651.202 or 651.203 may
be brought only by:
(1) a right holder;
(2) if the individual who is the subject of a digital
replica is a minor, the parent or guardian of the individual;
(3) any other person that controls, including through
a license, the right to authorize the use of the voice or visual
likeness of the right holder;
(4) any other person that owns or controls the right to
authorize the use of the voice or visual likeness of a deceased
individual; or
(5) in the case of a digital replica of an individual
who is a sound recording artist, any person that has, directly or
indirectly, entered into:
(A) a contract for the exclusive personal
services 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.
Sec. 651.202. INJUNCTIVE RELIEF FOR UNAUTHORIZED USE. An
eligible plaintiff may bring a private cause of action against a
person who violates or threatens to violate this chapter to obtain:
(1) injunctive relief; or
(2) other equitable relief.
Sec. 651.203. PRIVATE CAUSE OF ACTION FOR UNAUTHORIZED USE.
(a) In this section, "knowingly" means having actual knowledge of
or acting with deliberate ignorance of the prohibition involved.
(b) An eligible plaintiff may bring a cause of action
against another person who knowingly violates Section 651.053.
(c) For purposes of Subsection (a), a person may be presumed
to have acted knowingly if the person:
(1) is an online service provider that received a
notification under Section 651.101 and failed to remove or disable
access to the material under Section 651.102; or
(2) wilfully avoided having knowledge that:
(A) the applicable material is a digital replica;
and
(B) the digital replica was not authorized by a
right holder.
(d) A person must 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) 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) In a cause of action brought under this section, a
person that violates Section 651.053 is liable to the aggrieved
person for:
(1) subject to Subsection (g), the greater of:
(A) statutory damages in the amount of:
(i) $5,000 per work embodying the
unauthorized digital replica, if the violator is an individual;
(ii) $5,000 per violation, if the violator
is an online service provider; and
(iii) $25,000 per work embodying the
unauthorized digital replica, if the violator is an entity other
than an online service provider; or
(B) the sum of actual damages and profits
attributable to the unauthorized use of the digital replica; and
(2) if a wilful violation is proven under which the
violator is found to have acted with malice, fraud, knowledge, or
wilful avoidance of knowledge that the conduct violated the law,
punitive damages.
(g) 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 may not be
liable for statutory or actual damages exceeding $1 million
regardless of whether the material is ultimately determined to be
an unauthorized digital replica.
(h) The remedies available under this section and Section
26.013, Property Code, for a violation arising out of the same
conduct are mutually exclusive.
Sec. 651.204. ATTORNEY'S FEES. If the prevailing party is:
(1) the party bringing the action, the court shall
award reasonable attorney's fees; or
(2) the party defending the action, the court shall
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) 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:
(1) $5,000; or
(2) actual damages and court costs and reasonable
attorney's fees, including actual damages arising out of an online
service provider's reliance on the notice in removing or disabling
access to the material or activity claimed to be an unauthorized
digital replica.
(b) If a third party described by Section 651.102 files an
action under this section, the online service provider may,
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),
restore the removed material to the online service without
incurring monetary liability to either the notifying party or the
third party.
SECTION 2. 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. Subchapter E, Chapter 651, Business & Commerce
Code, as added by this Act, applies only to conduct occurring on or
after the effective date of this Act.
SECTION 4. This Act takes effect September 1, 2025.