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A BILL TO BE ENTITLED
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AN ACT
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relating to digital replication rights in the voice and visual |
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likeness of individuals; providing private causes of action; |
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authorizing a fee. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. The Business & Commerce Code is amended by adding |
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Title 14A to read as follows: |
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TITLE 14A. DIGITAL REPLICAS |
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SUBTITLE A. DIGITAL REPLICATION RIGHTS |
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CHAPTER 651. VOICE OR VISUAL LIKENESS |
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SUBCHAPTER A. GENERAL PROVISIONS |
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Sec. 651.001. DEFINITIONS. In this chapter: |
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(1) "Digital replica" means a newly created, |
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computer-generated, highly realistic electronic representation |
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that is readily identifiable as the voice or visual likeness of an |
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individual that: |
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(A) is embodied in a sound recording, image, |
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audiovisual work, including an audiovisual work that does not have |
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any accompanying sounds, or transmission: |
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(i) in which the individual did not |
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actually perform or appear; or |
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(ii) that is a version of a sound recording, |
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image, or audiovisual work in which the individual did perform or |
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appear, but in which the fundamental character of the performance |
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or appearance has been materially altered; and |
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(B) does not include the electronic |
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reproduction, use of a sample of one sound recording or audiovisual |
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work into another, remixing, mastering, or digital remastering of a |
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sound recording or audiovisual work authorized by the copyright |
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holder. |
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(2) "Digital replication right" means the right |
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established under Subchapter B. |
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(3) "Eligible plaintiff" means a person authorized to |
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bring an action under Section 651.201. |
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(4) "Individual" means a natural or deceased person. |
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(5) "Minor" means a person younger than 18 years of age |
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who: |
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(A) has never been married; and |
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(B) has not had the disabilities of minority |
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removed for general purposes. |
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(6) "Online service" means: |
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(A) any publicly accessible Internet website, |
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online application, mobile application, or virtual reality |
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environment, including a social media service, social media |
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network, or online application store, that predominantly provides a |
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community forum for user-generated content, including the sharing |
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of videos, images, games, audio files, or other material; and |
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(B) a digital music provider, as defined by 17 |
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U.S.C. Section 115(e). |
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(7) "Online service provider" means the owner of an |
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online service. |
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(8) "Production" means the creation of a digital |
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replica. |
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(9) "Right holder" means: |
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(A) the individual whose voice or visual likeness |
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is simulated or otherwise copied in or as a digital replica; and |
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(B) if applicable, any other person other than |
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the individual described by Paragraph (A) that acquires, through a |
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license, inheritance, or otherwise, the right to authorize the use |
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of the individual's voice or visual likeness in a digital replica. |
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(10) "Sound recording artist" means an individual who |
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creates or performs in sound recordings for economic gain or for the |
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livelihood of the individual. |
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Sec. 651.002. APPLICABILITY. This chapter applies only to |
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an individual who: |
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(1) is a resident of this state; or |
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(2) was a resident of this state on the date the |
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individual died. |
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SUBCHAPTER B. DIGITAL REPLICATION RIGHTS |
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Sec. 651.051. DIGITAL REPLICATION RIGHTS; PROPERTY RIGHT |
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ESTABLISHED. An individual or other right holder has the right to |
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authorize the use of the voice or visual likeness of the individual |
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in a digital replica. The right is: |
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(1) a property right; |
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(2) licensable, wholly or partly, exclusively or |
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nonexclusively, by the right holder, subject to the terms of a |
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contract, including a licensing agreement, or testamentary |
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instrument conveying digital replication rights to a right holder; |
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and |
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(3) not assignable during the life of the individual. |
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Sec. 651.052. DIGITAL REPLICATION RIGHTS ON DEATH OF |
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INDIVIDUAL. (a) A digital replication right does not expire on the |
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death of an individual, regardless of whether the right is used |
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commercially by the individual during the individual's lifetime. |
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(b) Subject to Chapter 26, Property Code, and other |
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applicable law, on the death of an individual: |
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(1) the individual's digital replication right is |
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transferable and licensable, wholly or partly, by the executors, |
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heirs, assigns, licensees, or devisees of the individual; and |
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(2) ownership of the right may be transferred, wholly |
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or partly, by operation of law, will, or intestate succession. |
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(c) A digital replication right is exclusive to: |
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(1) the individual, subject to the licensing of the |
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right during the lifetime of the individual; and |
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(2) the right holder: |
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(A) for a period of 10 years after the death of |
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the individual; and |
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(B) subject to Section 651.151, if the right |
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holder demonstrates active and authorized public use of the voice |
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or visual likeness of the individual during the 2-year period |
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preceding the expiration of the 10-year period described in |
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Paragraph (A), for an additional 5-year period, subject to renewal |
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for additional 5-year periods, only if the right holder can |
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demonstrate authorized public use of the voice or visual likeness |
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of the individual during the 2-year period preceding the expiration |
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of each additional 5-year period. |
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(d) A digital replication right terminates on the earlier |
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of: |
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(1) the date on which the 10-year period or 5-year |
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period, as applicable, described by Subsection (c)(2) expires |
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without renewal; or |
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(2) the date that is 70 years after the death of the |
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individual. |
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(e) If a right holder died before September 1, 2025, the |
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right holder's digital replication rights vest in the executors, |
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heirs, assigns, or devisees of the right holder. |
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Sec. 651.053. UNAUTHORIZED USE OF DIGITAL REPLICA. Except |
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as provided by Section 651.054 and subject to Section 651.104, a |
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person may not: |
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(1) produce a digital replica without the written |
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consent of the right holder; or |
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(2) publish, reproduce, display, distribute, |
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transmit, or otherwise make available to the public a digital |
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replica without the written consent of the right holder. |
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Sec. 651.054. PERMITTED USES. (a) Except as provided by |
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Subsection (b), a person may use a digital replica without the right |
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holder's consent if the digital replica is: |
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(1) produced or used in a bona fide news, public |
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affairs, or sports broadcast or account, provided that the digital |
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replica is the subject of, or is materially relevant to, the subject |
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of the broadcast or account; |
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(2) a representation of the individual in a |
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documentary, biographical, or historical manner, including some |
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degree of fictionalization, unless: |
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(A) the production or use of that digital replica |
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creates the false impression that the digital replica is an |
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authentic sound recording, image, transmission, or audiovisual |
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work in which the individual participated; or |
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(B) the digital replica is embodied in a musical |
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sound recording that is synchronized to accompany a motion picture |
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or other audiovisual work, except to the extent that the use of that |
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digital replica is protected by the First Amendment to the United |
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States Constitution; |
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(3) produced or used consistent with the public |
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interest in bona fide commentary, criticism, scholarship, satire, |
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or parody; |
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(4) used in a fleeting or negligible manner; or |
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(5) used in an advertisement or commercial |
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announcement for a purpose described by Subdivisions (1) through |
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(4) and the digital replica is relevant to the subject of the |
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advertisement or announcement. |
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(b) Subsection (a) does not apply to a digital replica used |
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to depict sexual conduct, as defined by Section 21.16, Penal Code. |
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Sec. 651.055. AUTHORITY TO LICENSE DIGITAL REPLICATION |
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RIGHT. Except as provided by Section 651.056 or 651.057, an |
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individual may, during the individual's lifetime, license the |
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individual's digital replication right. A license under this |
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section is valid only: |
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(1) to the extent the duration of the license does not |
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extend beyond the 10th anniversary of the date the license |
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agreement is entered into; and |
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(2) if the license agreement: |
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(A) is in writing and signed by the individual or |
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an authorized representative of the individual; and |
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(B) includes a reasonably specific description |
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of the intended uses of the digital replica. |
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Sec. 651.056. AUTHORITY TO LICENSE DIGITAL REPLICATION |
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RIGHTS OF CERTAIN MINORS. Except as provided by Section 651.057, a |
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license of the digital replication rights of a minor is valid only: |
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(1) to the extent the duration of the license does not |
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extend beyond the earlier of: |
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(A) the fifth anniversary of the date the license |
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agreement is entered into; or |
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(B) the minor's 18th birthday; |
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(2) if the license agreement: |
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(A) is in writing and signed by the minor's |
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parents or legal guardians; and |
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(B) includes a reasonably specific description |
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of the intended uses of the digital replica; and |
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(3) if the agreement is approved by a court in |
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accordance with Subchapter B, Chapter 1356, Estates Code. |
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Sec. 651.057. COLLECTIVE BARGAINING AGREEMENTS. Sections |
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651.055 and 651.056 do not apply if the license is governed by a |
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collective bargaining agreement that addresses digital replicas. |
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Sec. 651.058. REQUIREMENTS FOR POSTMORTEM TRANSFER. A |
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postmortem transfer or license of a digital replication right is |
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valid only if the testamentary instrument transferring the right or |
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the license agreement is in writing and signed by the right holder |
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or an authorized representative of the right holder. |
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Sec. 651.059. CONTINUED USE BY FORMER LICENSEE OF DIGITAL |
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REPLICA. Unless expressly prohibited by the license agreement, a |
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digital replica that is embodied in a sound recording, image, |
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audiovisual work, including an audiovisual work that does not have |
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any accompanying sounds, or transmission, and the use of which is |
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authorized under the terms of a license agreement, may continue to |
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be used in a manner consistent with the terms of that license after |
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the expiration or termination of the license agreement. |
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Sec. 651.060. VESTING OF CERTAIN DIGITAL REPLICATION |
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RIGHTS. Subject to Section 651.052(d)(2) and to the terms of a |
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contract, including a license agreement, or testamentary |
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instrument entered into before September 1, 2025, if a right holder |
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died before September 1, 2025, the right holder's digital |
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replication rights vest in the executors, heirs, assigns, or |
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devisees of the right holder. |
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SUBCHAPTER C. ONLINE SERVICE PROVIDER DUTIES |
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Sec. 651.101. DESIGNATION OF ONLINE SERVICE AGENT FOR |
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REPORTING CERTAIN VIOLATIONS; NOTIFICATIONS. (a) An online |
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service provider shall designate an agent to receive notifications |
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of violations of Section 651.053 that are alleged to have occurred |
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on the online service. The online service provider shall post in a |
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conspicuous, publicly accessible location on the online service the |
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name, address, telephone number, and e-mail address of the |
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designated agent. |
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(b) A notification under Subsection (a) must: |
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(1) be in writing: |
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(2) be submitted by and include the physical or |
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electronic signature of: |
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(A) the right holder or other eligible plaintiff; |
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or |
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(B) a person authorized to act on behalf of the |
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right holder or other eligible plaintiff; |
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(3) identify the individual whose voice or visual |
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likeness is being used in the alleged unauthorized digital replica; |
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(4) identify the material containing the alleged |
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unauthorized digital replica, including information sufficient to |
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allow the online service provider to locate the replica; |
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(5) include contact information reasonably sufficient |
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to permit the online service provider to contact the notifying |
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party, such as an address, telephone number, or e-mail address; |
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(6) include a statement that the notifying person |
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believes in good faith that the material is an unauthorized use of a |
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digital replica; |
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(7) if the notifying party is not the right holder or |
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other eligible plaintiff, include a statement that the notifying |
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party has the authority to act on behalf of the right holder or |
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eligible plaintiff, as applicable; and |
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(8) for the purposes of Section 651.102, include |
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information reasonably sufficient to: |
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(A) identify the reference or link to the |
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material or activity claimed to be an unauthorized digital replica |
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that is to be removed or to which access is to be disabled; and |
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(B) permit the online service provider to locate |
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the reference or link described in Paragraph (A). |
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Sec. 651.102. REMOVAL OF DIGITAL REPLICA. On receiving a |
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notification under Section 651.101, the online service provider |
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shall: |
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(1) remove from or disable access to the material that |
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is claimed to be an unauthorized digital replica on the online |
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service as soon as is technically and practically feasible; and |
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(2) if the online service hosts or otherwise stores |
|
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third-party provided material on a system or network controlled or |
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operated by or for the online service: |
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(A) remove or disable access to all instances of |
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the material or an activity using the material that is claimed to |
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be an unauthorized digital replica as soon as is technically and |
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practically feasible for that online service; and |
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(B) take reasonable steps to promptly notify the |
|
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third party that provided the material that the online service |
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provider has removed or disabled access to the material. |
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Sec. 651.103. FALSE OR DECEPTIVE NOTICE PROHIBITED. A |
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person may not submit a notice under Section 651.101 that falsely or |
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deceptively states that: |
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(1) the material requested to be removed is or |
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embodies an unauthorized digital replica; |
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(2) the person is authorized to submit the notice |
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under Section 651.101(b)(2); or |
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(3) use of the digital replica is not authorized by the |
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right holder or by other law. |
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Sec. 651.104. PRODUCTS AND SERVICES CAPABLE OF PRODUCING |
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DIGITAL REPLICAS; EXCEPTIONS AND VIOLATIONS BY MANUFACTURERS AND |
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DISTRIBUTORS. A person does not violate Section 651.053 by |
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manufacturing, importing, offering to the public, providing, or |
|
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otherwise distributing a product or service unless the product or |
|
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service: |
|
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(1) is primarily designed to produce one or more |
|
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unauthorized digital replicas; |
|
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(2) has limited commercially significant purpose or |
|
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use other than to produce an unauthorized digital replica; or |
|
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(3) is marketed, advertised, or otherwise promoted for |
|
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use in producing an unauthorized digital replica by: |
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(A) that person; or |
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(B) another: |
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(i) acting in concert with that person; or |
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(ii) with that person's knowledge. |
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SUBCHAPTER D. REGISTRATION OF POSTMORTEM RIGHTS |
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Sec. 651.151. REGISTRATION OF POSTMORTEM RIGHTS. The |
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renewal of a right described by Section 651.052(c)(2) is only |
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effective if, before the two-year period described by that section, |
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the right holder files a notice with the secretary of state that |
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contains: |
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(1) the name of the deceased individual; |
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(2) a statement, under penalty of perjury, that the |
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right holder has engaged in active and authorized public use of the |
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voice or visual likeness during the applicable two-year period; |
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(3) the identity of and contact information for the |
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right holder; and |
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(4) any other information the secretary of state deems |
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necessary. |
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Sec. 651.152. POSTMORTEM DIGITAL REPLICATION RIGHTS |
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DIRECTORY. (a) The secretary of state shall maintain and make |
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available to the public a directory of postmortem digital |
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replication rights registered under Section 651.151. |
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(b) A right holder may voluntarily apply to the secretary of |
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state for inclusion on the directory described by this section by |
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filing a notice with the secretary of state that complies with the |
|
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form, content, and filing procedures prescribed by rule by the |
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secretary of state. |
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(c) The secretary of state may impose a filing fee on a right |
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holder for inclusion in the directory described by this section in |
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amounts necessary to cover the cost of administering the directory. |
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SUBCHAPTER E. ENFORCEMENT |
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Sec. 651.201. AUTHORITY TO BRING UNAUTHORIZED USE ACTION: |
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ELIGIBLE PLAINTIFF. An action under Section 651.202 or 651.203 may |
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be brought only by: |
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(1) a right holder; |
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(2) if the individual who is the subject of a digital |
|
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replica is a minor, the parent or guardian of the individual; |
|
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(3) any other person that controls, including through |
|
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a license, the right to authorize the use of the voice or visual |
|
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likeness of the right holder; |
|
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(4) any other person that owns or controls the right to |
|
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authorize the use of the voice or visual likeness of a deceased |
|
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individual; or |
|
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(5) in the case of a digital replica of an individual |
|
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who is a sound recording artist, any person that has, directly or |
|
|
indirectly, entered into: |
|
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(A) a contract for the exclusive personal |
|
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services of the sound recording artist as a sound recording artist; |
|
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or |
|
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(B) an exclusive license to distribute or |
|
|
transmit one or more works that capture the audio performance of the |
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sound recording artist. |
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Sec. 651.202. INJUNCTIVE RELIEF FOR UNAUTHORIZED USE. An |
|
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eligible plaintiff may bring a private cause of action against a |
|
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person who violates or threatens to violate this chapter to obtain: |
|
|
(1) injunctive relief; or |
|
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(2) other equitable relief. |
|
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Sec. 651.203. PRIVATE CAUSE OF ACTION FOR UNAUTHORIZED USE. |
|
|
(a) In this section, "knowingly" means having actual knowledge of |
|
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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: |
|
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(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 |
|
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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 |
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(2) actual damages and court costs and reasonable |
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attorney's fees, including actual damages arising out of an online |
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service provider's reliance on the notice in removing or disabling |
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access to the material or activity claimed to be an unauthorized |
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digital replica. |
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(b) If a third party described by Section 651.102 files an |
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action under this section, the online service provider may, |
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provided the action is filed not later than the 14th day after the |
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date a third party receives notice under Section 651.102(2)(B), |
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restore the removed material to the online service without |
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incurring monetary liability to either the notifying party or the |
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third party. |
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SECTION 2. To the extent of a conflict between Chapter 651, |
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Business & Commerce Code, as added by this Act, and a provision of a |
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contract, including a license agreement, or testamentary |
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instrument entered into or executed before the effective date of |
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this Act, the provision of the contract or instrument prevails. |
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SECTION 3. Subchapter E, Chapter 651, Business & Commerce |
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Code, as added by this Act, applies only to conduct occurring on or |
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after the effective date of this Act. |
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SECTION 4. This Act takes effect September 1, 2025. |
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* * * * * |