(A) It is unlawful for a person to:

(1) advertise or offer for sale or resale, or sell or resell, or cause the sale or resale, or rent or cause the rental of, or transport or cause to be transported, or possess for any of these purposes for commercial advantage or private financial gain any article containing a live performance with the knowledge that the live performance has been fixed without the consent of the owner of the live performance; or

(2) record or fix or cause to be recorded or fixed on an article with the intent to sell for commercial advantage or private financial gain, the live performance with the knowledge that the live performance has been recorded or fixed without the consent of the owner of the live performance. The provisions of this item (2) shall not apply to reproduction in the home for private use and with no purpose of otherwise capitalizing commercially on the reproduction.

A person who violates this section, upon conviction, must be punished as provided for in Section 16-11-920.

(B) As used in this section:

(1) "Person" means an individual, partnership, corporation, company, association, or other legal entity.

(2) "Owner", in the absence of a written agreement or operation of law to the contrary, is presumed to be the performer of the live performance.

(3) "Fixed" means embodied in a tangible medium of expression when its embodiment in an article, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.

(4) "Article" means the tangible medium upon which sounds or images are recorded or otherwise stored and includes any original phonograph record, disc, tape, audio or video cassette, wire, film, or other medium now known or later developed on which sounds or images are or can be recorded or otherwise stored, or a copy or reproduction which duplicates in whole or in part, the original.

(5) "Live performance" means the recitation, rendering, or playing of a series of images or musical, spoken, or other sounds in any audible sequence.

(C) For the purposes of this section, a person who is authorized to maintain custody and control over business records which reflect whether or not the owner consented to having the live performance recorded or fixed is a proper witness in any proceeding regarding the issue of consent.

(D) A witness called pursuant to this section is subject to all rules of evidence relating to the competency of a witness to testify and the relevance and admissibility of the testimony offered.

(E) This section neither enlarges nor diminishes the rights and remedies of parties in private litigation nor does it apply to the transfer by a radio or television broadcaster of any such sounds, other than from the sound tract of a motion picture, intended for, or in connection with, broadcast transmission or related uses or for archival purposes.

HISTORY: 1989 Act No. 92, Section 1.