Relating to digital replication rights in the voice and visual likeness of individuals; providing private causes of action; authorizing a fee.

89(R) SB 1960 - Engrossed version - Bill Text

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.