HB0221

HOUSE BILL 221

57th legislature - STATE OF NEW MEXICO - first session, 2025

INTRODUCED BY

Tara L. Lujan and Joseph L. Sanchez

AN ACT

RELATING TO INTELLECTUAL PROPERTY; ENACTING THE VOICE AND VISUAL LIKENESS RIGHTS ACT; PROVIDING FOR PRIVATE ENFORCEMENT; PRESCRIBING CIVIL REMEDIES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. [NEW MATERIAL] SHORT TITLE.--This act may be cited as the "Voice and Visual Likeness Rights Act".

SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Voice and Visual Likeness Rights Act:

A. "copyright holder" means the owner of an exclusive right to an original work pursuant to the terms of a copyright agreement;

B. "digital replica" means a computer-generated, highly realistic electronic representation that is readily identifiable as the voice or visual likeness of an individual and is embodied in a sound recording, image or audiovisual work:

(1) in which the individual did not perform or appear; or

(2) is a version of a sound recording, image or audiovisual work in which the individual performs or appears and the fundamental character of the performance or appearance is materially altered; and

(3) 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 a copyright holder;

C. "individual" means an actual person whose voice or individual likeness is at issue with respect to digital replication;

D. "online service":

(1) means a public-facing website, application or virtual reality environment that provides a community forum for user-generated content, including:

(a) videos, images, games, audio files or other material;

(b) a digital music provider as defined in 17 U.S.C. Section 115; or

(2) does not include a service by wire or radio that provides the capability to transmit and receive data from internet endpoints, including capabilities that are incidental to enable the operation of the communications service provider of online services or network access or the operator of facilities for services;

E. "production" means the creation of a digital replica;

F. "right holder" means a person that has acquired the right to authorize the use of an individual's voice or visual likeness in a digital replica;

G. "sexually explicit conduct" means actual or simulated:

(1) sexual intercourse, including genital-genital, oral-genital, anal-genital or oral-anal, whether between persons of the same or opposite sex;

(2) bestiality;

(3) masturbation;

(4) sadistic or masochistic abuse; or

(5) lascivious exhibition of the anus, genitals or pubic area of a person;

H. "sound recording artist" means a person who performs in sound recordings for economic gain; and

I. "use" includes the commercial availability of a sound recording or audiovisual work in which the individual's name or voice or visual likeness is readily identifiable.

SECTION 3. [NEW MATERIAL] DIGITAL REPLICATION RIGHT.--

A. The right to an individual's voice or visual likeness is a property right exclusive to that individual. The individual may license the use of the individual's voice or visual likeness with instructions, limitations and conditions provided by a licensing agreement. An individual may license the use of the individual's voice or visual likeness as often and to as many persons as the individual chooses. The property right shall not expire on the death of the individual regardless of whether the right was commercially exploited by a right holder.

B. A right holder who is not the individual may authorize the use of the voice or visual likeness of the individual in a digital replica in accordance with the terms of a licensing agreement. This right is a property right and is licensable by the right holder. A license may survive the individual's death. On the individual's death, the right may be bequeathed by will or pass as personal property by operation of law.

C. The rights provided in Subsection A of this section are exclusive to the individual and may be transferred during the individual's lifetime. A right holder may transfer the rights provided in Subsection B of this section during the individual's lifetime or during the ten-year period after the death of the individual, and the right may be terminated by:

(1) proof of the non-use of the name, likeness or voice of an individual by a right holder for two years subsequent to the initial ten-year period following the individual's death; or

(2) the death of all executors, transferees, heirs or devisees of the individual.

SECTION 4. [NEW MATERIAL] LICENSES INVOLVING ADULTS AND MINORS.--

A. A license for an adult individual's or emancipated minor's right while the individual is living is valid only to the extent that the license duration does not exceed ten years and is valid only if the license agreement:

(1) is in writing and signed by the individual or the authorized representative of the individual; and

(2) includes a reasonably specific description of the intended uses of the digital replica.

B. A license for a living minor's right is valid only to the extent that the license duration does not exceed five years but, in any case, terminates when the minor reaches eighteen years of age. The license is valid only if the license agreement:

(1) is in writing and signed by a parent or guardian of the individual;

(2) includes a reasonably specific description of the intended uses of the digital replica; and

(3) is approved by a court in accordance with the laws of the state.

C. The provisions of Subsections A and B of this section shall not apply if the license is governed by a collective bargaining agreement that addresses digital replicas.

D. The provisions of Subsections A and B of this section shall not affect terms and conditions of a license or related contract other than those described in those subsections, and the expiration of such license shall not affect the remainder of the license or related contract.

SECTION 5. [NEW MATERIAL] REQUIREMENTS FOR POST-MORTEM TRANSFER.--A post-mortem transfer is valid only if the transfer agreement is in writing and signed by the right holder or an authorized representative of the right holder.

SECTION 6. [NEW MATERIAL] AUTHORIZED USE AFTER EXPIRATION OR TERMINATION OF LICENSE.--A digital replica embodied in a sound recording, image or audiovisual work, the use of which is authorized pursuant to the terms of a license, may be used in a manner consistent with the terms of the license after the expiration or termination of the license.

SECTION 7. [NEW MATERIAL] LIABILITY--CIVIL ACTION--REMEDIES--LIMITATIONS OF ACTION--EXCLUSIONS.--

A. A person that produces, publishes, reproduces, displays, distributes or otherwise makes available digital replicas without the written consent of the individual or the right holder is liable for a civil action. Each display made, copy made, transmission and instance of an unauthorized digital replica made available on an online service is a violation of the provisions of the Voice and Visual Likeness Rights Act.

B. To incur liability, a person that engaged in the violation shall have actual knowledge of the alleged violation, which may be obtained through a notification from the right holder or individual, or shall willfully avoid having knowledge that the material is an unauthorized digital replica.

C. Unless the digital replica is used to depict sexually explicit conduct, a violation of the provisions of the Voice and Visual Likeness Rights Act does not occur if the:

(1) digital replica is 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 relevant to the subject of the broadcast or account;

(2) digital replica is a representation of the individual as the individual in a documentary or in a historical or biographical manner, unless the production or use of the digital replica creates the false impression that the work is an authentic sound recording, image, transmission or audiovisual work in which the individual participated or the digital replica is embodied in a musical sound recording that is synchronized to accompany a motion picture or other audiovisual work;

(3) digital replica is produced or used consistent with the public interest in a bona fide commentary, criticism, scholarship, satire or parody;

(4) use of the digital replica is fleeting or negligible; or

(5) digital replica is used in an advertisement or commercial announcement for a purpose enumerated in Paragraphs (1) through (4) of this subsection and the digital replica is relevant to the subject of the work being advertised or announced.

D. A person shall not be secondarily liable for a violation of the provisions of the Voice and Visual Likeness Rights Act for manufacturing, importing, offering to the public, providing or otherwise distributing an unauthorized digital replica in a product or service, unless the product or service:

(1) is primarily designed to produce one or more unauthorized digital replicas;

(2) has only limited commercially significant purpose or use other than to produce an unauthorized digital replica; or

(3) is marketed, advertised or otherwise promoted by that person or another acting in concert with that person with that person's knowledge for use in producing an unauthorized digital replica.

E. An online service shall not be liable for violating the provisions of the Voice and Visual Likeness Rights Act if, upon receiving a notification of alleged violation, the online service removes or disables access to the material alleged to be an unauthorized digital replica as soon as is practicable.

F. An online service shall not be liable for violating the provisions of the Voice and Visual Likeness Rights Act for storing third-party provided material that resides on a system or network controlled or operated by or for the online service if, upon receiving a notification of violation, the online service removes or disables access to all instances of the material claimed to be an unauthorized digital replica as soon as is practicable for the online service and takes reasonable steps to promptly notify the third party that provided the material that the online service has removed or disabled access to the material.

G. A civil action for a violation of the provisions of the Voice and Visual Likeness Rights Act may be brought by:

(1) a right holder;

(2) if the individual is a minor, a parent or guardian of the individual;

(3) a person that controls, even by virtue of a license, the right to authorize the use of the voice or visual likeness of the individual;

(4) a person that owns or controls the right to authorize the use of the voice or visual likeness of a deceased person; or

(5) in the case of digital replica involving a sound recording artist, a person that has directly or indirectly entered into:

(a) a contract for the exclusive use 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.

H. A civil action for private enforcement of the provisions of the Voice and Visual Likeness Rights Act may be brought within three years after the date on which the party bringing the civil action discovered or with due diligence should have discovered the violation.

I. It shall not be a defense that the defendant displayed or otherwise communicated to the public a disclaimer stating that the applicable digital replica was unauthorized or disclosing that the digital replica was generated through the use of artificial intelligence or other technology.

J. In a civil action brought pursuant to the Voice and Visual Likeness Rights Act, a person that engages in activity violating that act is liable to the injured party in an amount equal to the greater of:

(1) in the case of a natural person, five thousand dollars ($5,000) per work embodying the unauthorized digital replica;

(2) in the case of an online service, five thousand dollars ($5,000) per violation;

(3) in the case of a person that is not an online service, twenty-five thousand dollars ($25,000) per work embodying the unauthorized digital replica; or

(4) actual damages suffered by the injured party as a result of the activity, plus profits from the unauthorized use attributable to that use and that are not taken into account in computing the actual damages.

K. The plaintiff may seek injunctive or other equitable relief.

L. In the case of willful activity in which the injured party has proven that the defendant acted with malice, fraud, knowledge or willful avoidance of knowledge that the conduct violated the law, the court may award to the injured party punitive damages; and if the prevailing party is the party:

(1) bringing the court action, the court may award reasonable attorney fees; or

(2) defending the court action, the court may award reasonable attorney fees if the court determines that the action was not brought in good faith.

M. An online service that has an objectively reasonable belief that material claimed to be an unauthorized digital replica does not qualify as a digital replica pursuant to the Voice and Visual Likeness Rights Act shall not be liable for statutory or actual damages exceeding one million dollars ($1,000,000), regardless of whether the material is determined to be an unauthorized digital replica.

N. In the event that the third party that provided the material that the online service has removed or to which the online service has disabled access files a lawsuit against the sender of a notice of violation claiming that the notice was false or deceptive, the online service may restore the removed material to its network for access by members of the public without monetary liability to either the notice sender or the third party that provided the material that the online service had removed or disabled access.

SECTION 8. [NEW MATERIAL] RULE OF CONSTRUCTION.--The Voice and Visual Likeness Rights Act is a law pertaining to intellectual property for the purposes of the federal Communications Act of 1934.

SECTION 9. SEVERABILITY.--If any part or application of the Voice and Visual Likeness Rights Act is held invalid, the remainder or its application to other situations or persons shall not be affected.

SECTION 10. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2025.

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