By: Thompson (Senate Sponsor - Patrick) H.B. No. 3125

(In the Senate - Received from the House May 12, 2011; May 12, 2011, read first time and referred to Committee on Jurisprudence; May 21, 2011, reported favorably by the following vote: Yeas 5, Nays 0; May 21, 2011, sent to printer.)

A BILL TO BE ENTITLED

AN ACT

relating to the offenses of unauthorized duplication, unauthorized recording, unauthorized operation of recording device, and improper labeling of recordings.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 641.001(4), Business & Commerce Code, is amended to read as follows:

(4) "Recording" means a tangible medium on which sounds, images, or both are recorded or otherwise stored, including:

(A) an original phonograph record, disc, tape, audio or video cassette, wire, film, electronic storage device, or other medium now existing or later developed; or

(B) a copy or reproduction that wholly or partly duplicates the original.

SECTION 2. Section 641.052, Business & Commerce Code, is amended to read as follows:

Sec. 641.052. UNAUTHORIZED RECORDING OF LIVE PERFORMANCE. (a) In this section:

(1) "Artist" means a person who contracts to perform or entertain at a live entertainment event.

(2) "Live entertainment event" means an event that occurs on a specific date and at which:

(A) an individual or a group of individuals, physically present at the venue, performs for the purpose of entertaining a person who is present at the event;

(B) a traveling circus or animal show performs for the purpose of entertaining a person who is present at the event; or

(C) a historical, museum-quality artifact is on display at an exhibition.

(3) "Live performance" means a recitation, rendering, or playing of a series, in an audible sequence, of:

(A) images;

(B) musical, spoken, or other sounds; or

(C) a combination of images and sounds.

(4) "Promoter" means an individual contracted by an artist to promote, organize, coordinate, operate, and manage a live entertainment event. The term includes services related to:

(A) the provision of staff for the live entertainment event; or

(B) the scheduling and promotion of an artist performing or entertaining at the live entertainment event.

(b) A person commits an offense if the person, with the knowledge that a live performance has been recorded or fixed without the consent of the owner:

(1) for commercial advantage or private financial gain, advertises, offers for sale, sells, rents, or transports, causes the sale, resale, rental, or transportation of, or possesses for one or more of these purposes a recording containing sounds of the live performance; or

(2) with the intent to sell for commercial advantage or private financial gain, records or fixes the live performance, or causes the live performance to be recorded or fixed on a recording.

(c) [(b)] An offense under this section is punishable by:

(1) imprisonment for a term of not more than five years, a fine not to exceed $250,000, or both, if:

(A) the offense involves at least 1,000 unauthorized recordings embodying sound or at least 65 unauthorized audiovisual recordings during a 180-day period; or

(B) the defendant has been previously convicted under this section;

(2) imprisonment for a term of not more than two years, a fine not to exceed $250,000, or both, if the offense involves more than 100 but fewer than 1,000 unauthorized recordings embodying sound or more than seven but fewer than 65 unauthorized audiovisual recordings during a 180-day period; or

(3) confinement in the county jail for a term of not more than one year, a fine not to exceed $25,000, or both, if the offense is not otherwise punishable under Subdivision (1) or (2).

(d) A promoter and an artist shall, regarding a contract for the artist's performance at a live entertainment event:

(1) comply with the terms of the contract regarding the distribution of recording revenue or event proceeds between the promoter and the artist; and

(2) agree to and secure permission for the recording of the live entertainment event in writing before the event is recorded.

(e) [(c)] In the absence of a written agreement or law to the contrary, the performer or performers of a live performance are presumed to own the rights to record or fix those sounds.

(f) [(d)] For purposes of this section, a person authorized to maintain custody and control over business records that reflect whether the owner of a live performance consented to having the live performance recorded or fixed is a proper witness in a proceeding regarding the issue of consent. A witness called under this subsection is subject to the rules of evidence relating to the competency of a witness to testify and the relevance and admissibility of the testimony offered.

SECTION 3. Section 641.001(2), Business & Commerce Code, is repealed.

SECTION 4. The change in law made by this Act applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is governed by the law in effect at the time the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.

SECTION 5. This Act takes effect September 1, 2011.

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