HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR
HOUSE BILL 934
49th legislature - STATE OF NEW MEXICO - first session, 2009
AN ACT
RELATING TO THE PUBLIC PEACE, HEALTH, SAFETY AND WELFARE; ENACTING THE TRUTH IN MUSIC ADVERTISING ACT; PROHIBITING CERTAIN CONDUCT; PROVIDING FOR INJUNCTIVE RELIEF AND PAYMENT OF COSTS AND RESTITUTION; ESTABLISHING PENALTIES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. SHORT TITLE.--This act may be cited as the "Truth in Music Advertising Act".
Section 2. DEFINITIONS.--As used in the Truth in Music Advertising Act:
A. "performing group" means a vocal or instrumental group seeking to use the name of another group that has previously released a commercial sound recording under that name;
B. "recording group" means a vocal or instrumental group at least one of whose members has previously released a commercial sound recording under that group's name and in which the members have a legal right by virtue of use or operation under the group name without having abandoned the name or affiliation with the group; and
C. "sound recording" means a work that results from the fixing on a material object of a series of musical, spoken or other sounds regardless of the nature of the material object, including a disk, electronic media, tape or phonograph record, in which the sounds are embodied.
Section 3. FALSE ADVERTISING.--It is unlawful for a person to advertise or conduct a live musical performance or production in this state through the use of a false, deceptive or misleading affiliation, connection or association between a performing group and a recording group. This section does not apply if any of the following apply:
A. the performing group is the authorized registrant and owner of a federal service mark or trademark for that group registered in the United States patent and trademark office;
B. at least one member of the performing group was a member of the recording group and has a legal right by virtue of use or operation under the group name without having abandoned the name or affiliation with the group;
C. the live musical performance or production is identified in all advertising and promotion as a salute or tribute;
D. the advertising does not relate to a live musical performance or production taking place in this state; or
E. the performance or production is expressly authorized by the recording group.
Section 4. RESTRAINING PROHIBITED ACTS.--
A. Whenever the attorney general or a district attorney has a reason to believe that a person is advertising or conducting or is about to advertise or conduct a live musical performance or production in violation of Section 3 of the Truth in Music Advertising Act and that proceedings would be in the public interest, the attorney general or district attorney may bring an action in the name of the state of New Mexico against the person to restrain by temporary or permanent injunction that advertisement or conduct.
B. Whenever a court issues a permanent injunction to restrain and prevent violations of the Truth in Music Advertising Act as authorized in Subsection A of this section, the court may, in its discretion, direct that the defendant restore to a person in interest any money or property, real or personal, that may have been acquired by means of a violation of that act, under terms and conditions to be established by the court.
Section 5. PENALTY.--A person who is found by a court to have violated Section 3 of the Truth in Music Advertising Act is liable to the state for a civil penalty of not less than five thousand dollars ($5,000) nor more than fifteen thousand dollars ($15,000) per violation, which civil penalty shall be in addition to any other relief that may be granted under Section 4 of that act. Each performance or production declared unlawful by Section 3 of the Truth in Music Advertising Act shall constitute a separate violation.
Section 6. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2009.
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