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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, unauthorized operation of recording device, and |
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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. Section 641.001(4), Business & Commerce Code, is |
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amended to read as follows: |
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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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SECTION 2. Section 641.052, Business & Commerce Code, is |
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amended to read as follows: |
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Sec. 641.052. UNAUTHORIZED RECORDING OF LIVE PERFORMANCE. |
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(a) In this section: |
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(1) "Artist" means a person who contracts to perform |
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or entertain at a live entertainment event. |
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(2) "Live entertainment event" means an event that |
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occurs on a specific date and at which: |
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(A) an individual or a group of individuals, |
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physically present at the venue, performs for the purpose of |
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entertaining a person who is present at the event; |
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(B) a traveling circus or animal show performs |
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for the purpose of entertaining a person who is present at the |
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event; 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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(3) "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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(4) "Promoter" means an individual contracted by an |
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artist 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 |
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entertainment 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. |
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(b) A person commits an offense if the person, with the |
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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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(c) [(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 years, |
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a fine not to exceed $250,000, or both, if the offense involves more |
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than 100 but fewer than 1,000 unauthorized recordings embodying |
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sound or more than seven but fewer than 65 unauthorized audiovisual |
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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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(d) A promoter and an artist shall, regarding a contract for |
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the artist's performance at a live entertainment event: |
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(1) comply with the terms of the contract regarding |
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the distribution of recording revenue or event proceeds between the |
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promoter and the artist; and |
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(2) agree to and secure permission for the recording |
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of the live entertainment event in writing before the event is |
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recorded. |
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(e) [(c)] In the absence of a written agreement or law to |
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the 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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(f) [(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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SECTION 3. Section 641.001(2), Business & Commerce Code, is |
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repealed. |
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SECTION 4. 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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and the former law is continued in effect for that purpose. For |
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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 5. This Act takes effect September 1, 2011. |
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