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A BILL TO BE ENTITLED
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AN ACT
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relating to the offenses of unauthorized duplication, unauthorized |
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recording, and improper labeling of recordings. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 641, Business & Commerce Code, is |
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transferred to Chapter 32, Penal Code, redesignated as Subchapter |
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E, Chapter 32, Penal Code, and amended to read as follows: |
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SUBCHAPTER E [CHAPTER 641]. UNAUTHORIZED RECORDINGS |
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[SUBCHAPTER A. GENERAL PROVISIONS] |
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Sec. 32.71 [641.001]. DEFINITIONS. In this subchapter |
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[chapter]: |
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(1) "Fix" means to embody in a recording or other |
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tangible medium of expression, by or under the authority of the |
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author, so that the matter embodied is sufficiently permanent or |
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stable to permit it to be perceived, reproduced, or otherwise |
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communicated for a period of more than transitory duration. |
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(2) "Live performance" means a recitation, rendering, |
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or playing of a series, in an audible sequence, of: |
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(A) images; |
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(B) musical, spoken, or other sounds; or |
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(C) a combination of images and sounds. |
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(3) "Owner" means a person who owns the sounds fixed in |
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a master phonograph record, master disc, master tape, master film, |
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or other recording: |
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(A) on which sound is recorded; and |
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(B) from which the transferred recorded sounds |
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are directly or indirectly derived. |
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(4) "Recording" means a tangible medium on which |
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sounds, images, or both are recorded or otherwise stored, |
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including: |
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(A) an original phonograph record, disc, tape, |
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audio or video cassette, wire, film, electronic storage device, or |
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other medium now existing or later developed; or |
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(B) a copy or reproduction that wholly or partly |
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duplicates the original. |
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[SUBCHAPTER B. PROHIBITED PRACTICES; PENALTIES] |
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Sec. 32.72 [641.051]. UNAUTHORIZED DUPLICATION OF CERTAIN |
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RECORDINGS. (a) This section applies only to a recording that was |
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initially fixed before February 15, 1972. |
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(b) A person commits an offense if the person: |
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(1) knowingly reproduces for sale or causes to be |
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transferred any recording with intent to sell the recording or |
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cause the recording to be sold or use a recording or cause the |
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recording to be used for commercial advantage or private financial |
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gain through public performance without the consent of the owner; |
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(2) with the knowledge that the sounds on a recording |
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have been reproduced or transferred without the consent of the |
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owner, transports the recording within this state for commercial |
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advantage or private financial gain; or |
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(3) with the knowledge that a recording has been |
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reproduced or transferred without the consent of the owner: |
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(A) advertises, offers for sale, sells, or rents |
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the recording; |
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(B) causes the sale, resale, or rental of the |
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recording; or |
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(C) possesses the recording for a purpose |
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described by Paragraph (A) or (B). |
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(c) [An offense under this section is punishable by:
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[(1)
imprisonment for a term of not more than five
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years, a fine not to exceed $250,000, or both, if:
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[(A)
the offense involves at least 1,000
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unauthorized recordings during a 180-day period; or
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[(B)
the defendant has been previously convicted
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under this section;
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[(2)
imprisonment for a term of not more than two
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years, a fine not to exceed $250,000, or both, if the offense
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involves more than 100 but fewer than 1,000 unauthorized recordings
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during a 180-day period; or
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[(3)
confinement in the county jail for a term of not
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more than one year, a fine not to exceed $25,000, or both, if the
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offense is not otherwise punishable under Subdivision (1) or (2).
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[(d)] This section does not apply to any fees due to the |
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American Society of Composers, Authors and Publishers. |
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Sec. 32.73 [641.052]. UNAUTHORIZED RECORDING OF LIVE |
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PERFORMANCE. (a) A person commits an offense if the person, with |
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the knowledge that a live performance has been recorded or fixed |
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without the consent of the owner: |
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(1) for commercial advantage or private financial |
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gain, advertises, offers for sale, sells, rents, or transports, |
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causes the sale, resale, rental, or transportation of, or possesses |
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for one or more of these purposes a recording containing sounds of |
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the live performance; or |
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(2) with the intent to sell for commercial advantage |
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or private financial gain, records or fixes the live performance, |
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or causes the live performance to be recorded or fixed on a |
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recording. |
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(b) [An offense under this section is punishable by:
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[(1)
imprisonment for a term of not more than five
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years, a fine not to exceed $250,000, or both, if:
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[(A)
the offense involves at least 1,000
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unauthorized recordings embodying sound or at least 65 unauthorized
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audiovisual recordings during a 180-day period; or
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[(B)
the defendant has been previously convicted
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under this section;
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[(2)
imprisonment for a term of not more than two
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years, a fine not to exceed $250,000, or both, if the offense
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involves more than 100 but fewer than 1,000 unauthorized recordings
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embodying sound or more than seven but fewer than 65 unauthorized
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audiovisual recordings during a 180-day period; or
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[(3)
confinement in the county jail for a term of not
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more than one year, a fine not to exceed $25,000, or both, if the
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offense is not otherwise punishable under Subdivision (1) or (2).
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[(c)] In the absence of a written agreement or law to the |
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contrary, the performer or performers of a live performance are |
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presumed to own the rights to record or fix those sounds. |
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(c) [(d)] For purposes of this section, a person authorized |
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to maintain custody and control over business records that reflect |
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whether the owner of a live performance consented to having the live |
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performance recorded or fixed is a proper witness in a proceeding |
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regarding the issue of consent. A witness called under this |
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subsection is subject to the rules of evidence relating to the |
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competency of a witness to testify and the relevance and |
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admissibility of the testimony offered. |
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Sec. 32.74 [641.053]. UNAUTHORIZED OPERATION OF RECORDING |
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DEVICE IN MOTION PICTURE THEATER. (a) In this section: |
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(1) "Audiovisual recording function" means the |
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capability of a device to record or transmit a motion picture or any |
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part of a motion picture by means of any technology now known or |
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later developed. |
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(2) "Motion picture theater" means a movie theater, |
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screening room, or other place primarily used to exhibit a motion |
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picture. |
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(b) A person commits an offense if, without the consent of |
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the owner of the theater, the person, with the intent to record a |
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motion picture, knowingly operates the audiovisual recording |
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function of any device in a motion picture theater while the motion |
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picture is being exhibited. |
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(c) [An offense under this section is a Class A misdemeanor,
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except that the offense is:
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[(1)
a state jail felony if the person has been
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previously convicted one time of an offense under this section; or
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[(2)
a felony of the third degree if the person has
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been previously convicted two or more times of an offense under this
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section.
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[(d)] It is a defense to prosecution under this section that |
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the audiovisual recording function of the device was operated |
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solely for official law enforcement purposes. |
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(d) [(e)] If conduct constituting an offense under this |
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section also constitutes an offense under another law, the actor |
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may be prosecuted under this section, the other law, or both. |
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(e) [(f)] A person who reasonably believes that another has |
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knowingly operated the audiovisual recording function of a device |
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in a motion picture theater in violation of this section is |
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privileged to detain that other person in a reasonable manner and |
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for a reasonable time to allow for the arrival of law enforcement |
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authorities. |
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Sec. 32.75 [641.054]. IMPROPER LABELING. [(a)] A person |
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commits an offense if: |
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(1) for commercial advantage or private financial |
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gain, the person knowingly: |
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(A) advertises, offers for sale, sells, rents, or |
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transports a recording; |
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(B) causes the sale, resale, rental, or |
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transportation of a recording; or |
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(C) possesses a recording for a purpose described |
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by Paragraph (A) or (B); and |
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(2) the outside cover, box, label, or jacket of the |
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recording does not clearly and conspicuously disclose[:
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[(A)] the actual name and address of the |
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manufacturer[; and
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[(B) the name of the performer or group]. |
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[(b) An offense under this section is punishable by:
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[(1)
imprisonment for a term of not more than five
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years, a fine not to exceed $250,000, or both, if:
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[(A)
the offense involves at least 65
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unauthorized recordings during a 180-day period; or
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[(B)
the defendant has been previously convicted
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under this section;
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[(2)
imprisonment for a term of not more than two
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years, a fine not to exceed $250,000, or both, if the offense
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involves more than seven but fewer than 65 unauthorized recordings
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during a 180-day period; or
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[(3)
confinement in the county jail for a term of not
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more than one year, a fine not to exceed $25,000, or both, if the
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offense is not otherwise punishable under Subdivision (1) or (2).] |
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Sec. 32.76. PENALTIES. (a) Except as provided by |
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Subsection (b), an offense under this subchapter is: |
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(1) a Class C misdemeanor if the value of pecuniary |
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loss to the owner of or lawful producer of the recording is less |
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than $50; |
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(2) a Class B misdemeanor if the value of pecuniary |
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loss to the owner of or lawful producer of the recording is $50 or |
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more but less than $500; |
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(3) a Class A misdemeanor if the value of pecuniary |
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loss to the owner of or lawful producer of the recording is $500 or |
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more but less than $1,500; |
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(4) a state jail felony if the value of pecuniary loss |
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to the owner of or lawful producer of the recording is $1,500 or |
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more but less than $20,000; or |
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(5) a felony of the third degree if the value of |
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pecuniary loss to the owner of or lawful producer of the recording |
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is $20,000 or more. |
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(b) The punishment prescribed for an offense that is |
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punishable under Subsection (a)(1), (2), (3), or (4) is increased |
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to the next highest category of offense if the defendant has one or |
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more times been previously convicted of or received a grant of |
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deferred adjudication community supervision for an offense under |
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this subchapter. |
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Sec. 32.77 [641.055]. FORFEITURE. If a person is |
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convicted of an offense under [a violation of] this subchapter |
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[chapter], the court in its judgment of conviction shall order the |
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forfeiture and destruction or other disposition of: |
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(1) all recordings on which the conviction is based; |
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and |
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(2) all devices and equipment used or intended to be |
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used in the manufacture of the recordings on which the conviction is |
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based. |
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Sec. 32.78. RESTITUTION. (a) If a person is convicted of |
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an offense under this subchapter, the court shall order the person |
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to make restitution to: |
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(1) an owner or lawful producer of a master recording |
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who has suffered pecuniary loss as a result of the offense; or |
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(2) a trade association that represents an owner or |
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lawful producer described by Subdivision (1). |
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(b) The court shall base the amount of restitution on the |
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value of the recordings involved in the offense, as determined |
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under Section 32.02 |
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[Sec.
641.056.
PRIVATE RIGHTS AND REMEDIES NOT AFFECTED.
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Sections 641.051, 641.052, and 641.054 do not affect the rights and
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remedies of a party in private litigation.
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[Sec.
641.057.
PENALTIES CUMULATIVE. A penalty provided by
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this chapter is in addition to any other penalty provided under
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other law]. |
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SECTION 2. The change in law made by this Act applies only |
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to an offense committed on or after the effective date of this Act. |
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An offense committed before the effective date of this Act is |
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governed by the law in effect at the time the offense was committed. |
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For purposes of this section, an offense was committed before the |
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effective date of this Act if any element of the offense occurred |
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before that date. |
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SECTION 3. This Act takes effect September 1, 2009. |
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COMMITTEE AMENDMENT NO. |
1 |
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Amend S.B. 1835 as follows: |
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(1) On page 2, between lines 11 and 12 insert the following: |
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"(5) "Artist" means a natural person or an entity that |
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contracts to perform or entertain at a live entertainment event. |
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(6) "Live Entertainment Event" means an event that occurs on |
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a specific date to which tickets are sold and at which: |
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(A) a natural person or a group of natural persons, |
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physically present at the venue, performs for the purpose of |
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entertaining a ticket holder who is present at the event; |
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(B) a traveling circus or animal show performs for the |
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purpose of entertaining a ticket holder who is present at the event; |
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or |
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(C) a historical, museum-quality artifact is on |
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display at an exhibition. |
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(7) "Promoter" means an individual contracted by an Artist |
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to promote, organize, coordinate, operate and manage a live |
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entertainment event. The term includes services related to: |
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(A) the provision of staff for the live entertainment |
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event; or |
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(B) the scheduling and promotion of an artist |
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performing or entertaining at the live entertainment event."; and |
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On page 5, between lines 8 and 9, insert the following: |
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"(d) A contract or written agreement between a Promoter and |
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an Artist for a Live Performance at a Live entertainment event |
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creates a fiduciary responsibility between the parties to flow |
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through any recording revenue and event proceeds, in the form of |
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payments to each other as contractually stipulated, and that both |
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parties are required to secure mutual permission in writing before |
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producing a recording of a live entertainment event." |
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Vaught |