80C315(3) ATP

 

CHAPTER 641.  UNAUTHORIZED RECORDINGS

SUBCHAPTER A.  GENERAL PROVISIONS

Revised Law

Sec. 641.001.  DEFINITIONS.  In this chapter:

(1)  "Fix" means to embody in a recording or other tangible medium of expression, by or under the authority of the author, so that the matter embodied is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.

(2)  "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.

(3)  "Owner" means a person who owns the sounds fixed in a master phonograph record, master disc, master tape, master film, or other recording:

(A)  on which sound is recorded; and

(B)  from which the transferred recorded sounds are directly or indirectly derived.

(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, or other medium now existing or later developed; or

(B)  a copy or reproduction that wholly or partly duplicates the original.  (Bus. & Com. Code, Sec. 35.91.)

Source Law

Sec. 35.91.  DEFINITIONS.  In this subchapter:

(1)  "Fixed" means embodied in a recording or other tangible medium of expression, by or under the authority of the author, so that the matter embodied is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.

(2)  "Live performance" means a recitation, rendering, or playing of a series of images, musical, spoken, or other sounds, or a combination of images and sounds, in an audible sequence.

(3)  "Owner" means a person who owns the sounds fixed in a master phonograph record, master disc, master tape, master film, or other recording on which sound is or can be recorded and from which the transferred recorded sounds are directly or indirectly derived.

(4)  "Recording" means a tangible medium on which sounds, images, or both are recorded or otherwise stored, including an original phonograph record, disc, tape, audio or video cassette, wire, film, or other medium now existing or developed later on which sounds, images, or both are or can be recorded or otherwise stored or a copy or reproduction that duplicates in whole or in part the original.

Revisor's Note

Section 35.91(3), Business & Commerce Code, defines "owner" in part as a person who "owns the sounds fixed in a … recording on which sound is or can be recorded" and Section 35.91(4) defines "recording" in part as a tangible medium on which sounds, images, or both are stored, including "an original phonograph record, disc, tape, audio or video cassette, wire, film, or other medium now existing or developed later on which sounds, images, or both are or can be recorded or otherwise stored."  The revised law omits the references to "can be" as unnecessary and misleading because it is clear from the context that the definitions are referring to a medium on which sounds or images have already been stored.

[Sections 641.002-641.050 reserved for expansion]

SUBCHAPTER B.  PROHIBITED PRACTICES; PENALTIES

Revised Law

Sec. 641.051.  UNAUTHORIZED DUPLICATION OF CERTAIN RECORDINGS.  (a)  This section applies only to a recording that was initially fixed before February 15, 1972.

(b)  A person commits an offense if the person:

(1)  knowingly reproduces for sale or causes to be transferred any recording with intent to sell the recording or cause the recording to be sold or use a recording or cause the recording to be used for commercial advantage or private financial gain through public performance without the consent of the owner;

(2)  with the knowledge that the sounds on a recording have been reproduced or transferred without the consent of the owner, transports the recording within this state for commercial advantage or private financial gain; or

(3)  with the knowledge that a recording has been reproduced or transferred without the consent of the owner:

(A)  advertises, offers for sale, sells, or rents the recording;

(B)  causes the sale, resale, or rental of the recording; or

(C)  possesses the recording for a purpose described by Paragraph (A) or (B).

(c)  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 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 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)  This section does not apply to any fees due to the American Society of Composers, Authors and Publishers.  (Bus. & Com. Code, Secs. 35.92(a), (b), (d).)

Source Law

Sec. 35.92.  UNAUTHORIZED DUPLICATION.  (a)  A person commits an offense if the person:

(1)  knowingly reproduces for sale or causes to be transferred any recording with intent to sell it or cause it to be sold or use it or cause it to be used for commercial advantage or private financial gain through public performance without the consent of the owner;

(2)  transports within this state, for commercial advantage or private financial gain, a recording with the knowledge that the sounds have been reproduced or transferred without the consent of the owner;  or

(3)  advertises, offers for sale, sells, or rents, causes the sale, resale, or rental of or possesses for one or more of these purposes any recording that the person knows has been reproduced or transferred without the consent of the owner.

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

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

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

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

(2)  a fine of not more than $250,000, imprisonment for not more than two years, or both, if the offense involves more than 100 but less than 1,000 unauthorized recordings during a 180-day period; or

(3)  a fine of not more than $25,000, confinement in the county jail for not more than one year, or both, for any other offense.

(d)  This section applies only to recordings that were initially fixed before February 15, 1972.  This section does not apply to any fees due ASCAP.

Revisor's Note

Section 35.92(d), Business & Commerce Code, refers to "ASCAP."  "ASCAP" is an acronym for the "American Society of Composers, Authors and Publishers," and the revised law is drafted accordingly.

Revised Law

Sec. 641.052.  UNAUTHORIZED RECORDING OF LIVE PERFORMANCE.  (a)  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.

(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).

(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.

(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.  (Bus. & Com. Code, Secs. 35.93(a), (b), (c), (d).)

Source Law

Sec. 35.93.  UNAUTHORIZED RECORDING OF LIVE PERFORMANCE.  (a)  A person commits an offense if the person:

(1)  for commercial advantage or private financial gain advertises, offers for sale, sells, rents, transports, causes the sale, resale, rental, or transportation of or possesses for one or more of these purposes a recording containing sounds of a live performance with the knowledge that the live performance has been recorded or fixed without the consent of the owner; or

(2)  with the intent to sell for commercial advantage or private financial gain records or fixes or causes to be recorded or fixed on a recording a live performance with the knowledge that the live performance has been recorded or fixed without the consent of the owner.

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

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

(3)  a fine of not more than $25,000, confinement in the county jail for not more than one year, or both, for any other offense.

(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.

(d)  For the purposes of this section, a person who is authorized to maintain custody and control over business records that reflect whether or not the owner of the 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 pursuant to this section 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.

Revised Law

Sec. 641.053.  UNAUTHORIZED OPERATION OF RECORDING DEVICE IN MOTION PICTURE THEATER.  (a)  In this section:

(1)  "Audiovisual recording function" means the capability of a device to record or transmit a motion picture or any part of a motion picture by means of any technology now known or later developed.

(2)  "Motion picture theater" means a movie theater, screening room, or other place primarily used to exhibit a motion picture.

(b)  A person commits an offense if, without the consent of the owner of the theater, the person, with the intent to record a motion picture, knowingly operates the audiovisual recording function of any device in a motion picture theater while the motion picture is being exhibited.

(c)  An offense under this section is a Class A misdemeanor, except that the offense is:

(1)  a state jail felony if the person has been previously convicted one time of an offense under this section; or

(2)  a felony of the third degree if the person has been previously convicted two or more times of an offense under this section.

(d)  It is a defense to prosecution under this section that the audiovisual recording function of the device was operated solely for official law enforcement purposes.

(e)  If conduct constituting an offense under this section also constitutes an offense under another law, the actor may be prosecuted under this section, the other law, or both.

(f)  A person who reasonably believes that another has knowingly operated the audiovisual recording function of a device in a motion picture theater in violation of this section is privileged to detain that other person in a reasonable manner and for a reasonable time to allow for the arrival of law enforcement authorities.  (Bus. & Com. Code, Sec. 35.935.)

Source Law

Sec. 35.935.  UNAUTHORIZED OPERATION OF RECORDING DEVICE IN MOTION PICTURE THEATER.  (a)  In this section:

(1)  "Audiovisual recording function" means the capability of a device to record or transmit a motion picture or any part of a motion picture by means of any technology now known or later developed.

(2)  "Motion picture theater" means a movie theater, screening room, or other place primarily used to exhibit a motion picture.

(b)  A person commits an offense if the person, with the intent to record a motion picture, knowingly operates the audiovisual recording function of any device in a motion picture theater, while the motion picture is being exhibited, without the consent of the owner of the theater.

(c)  An offense under this section is a Class A misdemeanor, except that the offense is:

(1)  a state jail felony if the person has been previously convicted one time of an offense under this section; or

(2)  a felony of the third degree if the person has been previously convicted two or more times of an offense under this section.

(d)  It is a defense to prosecution under this section that the audiovisual recording function of the device was operated solely for official law enforcement purposes.

(e)  If conduct constituting an offense under this section also constitutes an offense under another law, the actor may be prosecuted under this section, the other law, or both.

(f)  A person who reasonably believes that another has knowingly operated the audiovisual recording function of any device in a motion picture theater in violation of this section is privileged to detain that person in a reasonable manner and for a reasonable time to allow for the arrival of law enforcement authorities.

Revised Law

Sec. 641.054.  LABELING.  (a)  A person commits an offense if:

(1)  for commercial advantage or private financial gain, the person knowingly:

(A)  advertises, offers for sale, sells, rents, or transports a recording;

(B)  causes the sale, resale, rental, or transportation of a recording; or

(C)  possesses a recording for a purpose described by Paragraph (A) or (B); and

(2)  the outside cover, box, or jacket of the recording does not clearly and conspicuously disclose:

(A)  the actual name and address of the manufacturer; and

(B)  the name of the performer or group.

(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 65 unauthorized 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 seven but fewer than 65 unauthorized 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).  (Bus. & Com. Code, Secs. 35.94(a), (b).)

Source Law

Sec. 35.94.  LABELING.  (a)  A person commits an offense if, for commercial advantage or private financial gain, the person knowingly advertises, offers for sale, sells, rents, or transports, causes the sale, resale, rental, or transportation of, or possesses for any of these purposes a recording if the outside cover, box, or jacket of the recording does not clearly and conspicuously disclose the actual name and address of the manufacturer and the name of the performer or group.

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

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

(A)  the offense involves at least 65 unauthorized recordings during a 180-day period;  or

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

(2)  a fine of not more than $250,000, imprisonment for not more than two years, or both, if the offense involves more than seven but less than 65 unauthorized recordings during a 180-day period; or

(3)  a fine of not more than $25,000, confinement in the county jail for not more than one year, or both for any other offense.

Revised Law

Sec. 641.055.  FORFEITURE.  If a person is convicted of a violation of this chapter, the court in its judgment of conviction shall order the forfeiture and destruction or other disposition of:

(1)  all recordings on which the conviction is based; and

(2)  all devices and equipment used or intended to be used in the manufacture of the recordings on which the conviction is based.  (Bus. & Com. Code, Sec. 35.95.)

Source Law

Sec. 35.95.  FORFEITURE.  If a person is convicted of a violation of this subchapter, the court in its judgment of conviction shall order the forfeiture and destruction or other disposition of:

(1)  all recordings on which the conviction is based; and

(2)  all implements, devices, and equipment used or intended to be used in the manufacture of the recordings on which the conviction is based.

Revisor's Note

Section 35.95, Business & Commerce Code, refers to "implements, devices, and equipment" used to manufacture recordings.  The revised law omits "implements" because, in context, "implements" is included in the meaning of "devices."

Revised Law

Sec. 641.056.  PRIVATE RIGHTS AND REMEDIES NOT AFFECTED.  Sections 641.051, 641.052, and 641.054 do not affect the rights and remedies of a party in private litigation.  (Bus. & Com. Code, Secs. 35.92(c), 35.93(e), 35.94(c).)

Source Law

[Sec. 35.92]

(c)  This section does not affect the rights and remedies of a party in private litigation.

[Sec. 35.93]

(e)  This section does not affect the rights and remedies of a party in private litigation.

[Sec. 35.94]

(c)  This section does not affect the rights and remedies of a party in private litigation.

Revised Law

Sec. 641.057.  PENALTIES CUMULATIVE.  A penalty provided by this chapter is in addition to any other penalty provided under other law.  (Bus. & Com. Code, Sec. 35.96.)

Source Law

Sec. 35.96.  REMEDIES CUMULATIVE.  The penalties provided by this subchapter are in addition to any other penalties provided under any other law.