ENGROSSED
Senate Bill No. 261
(By Senators Wooton, Oliverio, Bowman, Buckalew, Scott,
White, Anderson and Dittmar)
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[Originating in the Committee on the Judiciary;
reported February 3, 1995.]
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A BILL to amend and reenact section fifty, article three, chapter
sixty-one of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to unauthorized
transferral of recorded sounds; sale and possession;
penalties; civil action; and definition.
Be it enacted by the Legislature of West Virginia:
That section fifty, article three, chapter sixty-one of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-50. Unauthorized transferral of recorded sounds; sale and
possession; penalties; civil action; definition.
(a) No person shall knowingly and willfully for commercial
advantage or private financial gain transfer by electronic or
mechanical means or cause to be transferred by electronic or
mechanical means with intent to sell for profit the recorded sounds
contained on any phonograph record, disc, tape, film or other device without the permission of the owner of such recorded sounds
or his authorized representative, or to knowingly, or with
reasonable grounds to know, sell or possess with intent to sell any
phonograph record, disc, tape, film or other device containing such
unauthorized transferred recorded sounds. This paragraph applies
to sound recordings initially fixed prior to the fifteenth day of
February, one thousand nine hundred seventy-two.
No person shall knowingly and willfully for commercial
advantage or private financial gain offer for sale, sell, rent,
transport, cause the sale, resale, rental or transportation of or
possess for one or more of these purposes a recording of a live
performance with the knowledge that the live performance has been
recorded or fixed without the consent of the owner.
No person shall knowingly and willfully for commercial
advantage or private financial gain, record or fix or cause to be
recorded or fixed on any type of recording device a live
performance with the knowledge that the live performance is being
recorded or fixed without the consent of the owner.
Any phonograph record, disc, tape, film, video tape, video
cassette or other device offered for sale or resale shall clearly
and conspicuously disclose the actual name and address of the
manufacturer thereof.
(b) Any owner of such recorded sounds, images or any audio-
visual combination and any person lawfully transferring such sounds
by agreement with such owner shall have a cause of action for the
unauthorized transferral of such sounds and shall be entitled to treble damages resulting therefrom.
(c) (1) For the purpose of this section, the term "owner"
means the person vested with the rights to and ownership of the
original fixation of sounds, images or any audio-visual combination
embodied in the master phonograph record, master disc, master tape,
master film or other device used for transferring sounds or images
on phonograph records, discs, tapes, films, video tapes or video
cassettes or other similar articles upon which sounds, images or
any audio-visual combination are recorded and from which the
transferred recorded sounds and or images are directly derived.
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 the sounds, images or any audio-
visual combination of a live performance. A person who is
authorized to maintain custody and control over business records
that reflect whether or not the owner or owners of a live
performance consented to having a live performance recorded or
fixed is a proper witness in a proceeding regarding the issue of
consent.
(2) For the purposes of this section, the term "manufacturer"
means the person who transfers, authorizes or causes the transfer
of a recording of sounds, images or any audio-visual combination to
a phonograph record, disc, tape, film, video tape, video cassette
or other device.
(d) (1) Any person convicted of an offense under this section
involving less than one hundred unlawful sound recordings or less than twenty unlawful audio-visual recordings shall be guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not more
than one thousand dollars, or imprisoned for not more than one year
in jail or both fined and imprisoned.
(2) Any person convicted of an offense under this section
involving at least one hundred but less than one thousand unlawful
sound recordings or more than twenty but less than sixty-five
audio-visual recordings shall be guilty of a felony, and, upon
conviction thereof, shall be fined not less than one thousand
dollars nor more than five thousand dollars, or imprisoned for not
more than two years in the penitentiary or both fined and
imprisoned.
(3) Any person convicted of an offense under this section
involving more than one thousand unlawful sound recordings or at
least sixty-five unlawful audio-visual recordings shall be guilty
of a felony, and, upon conviction thereof, shall be fined not less
than five thousand dollars nor more than ten thousand dollars, or
imprisoned for not more than five years in the penitentiary or both
fined and imprisoned.
(4) Any person convicted of a second or subsequent offense
under this section shall be guilty of a felony, and, upon
conviction thereof, shall be fined not less than one thousand
dollars nor more than ten thousand dollars, or imprisoned for not
more than five years or both fined and imprisoned.
(5) Any unauthorized recorded sounds or images produced in
violation of this section and any equipment used for such purpose, shall be confiscated by the appropriate law-enforcement agency.
If a person is convicted of any violation under this chapter,
the court in its judgment of conviction shall order the forfeiture
and destruction or release to a law-enforcement agency for use in
official agency business of all infringing recordings and of any
equipment or components used or intended to be used in the
production of the recordings. All infringing phonograph records,
discs, tapes, films, video tapes, video cassettes or other devices
shall be destroyed once they are no longer needed for court
proceedings.