Download This Version in Microsoft Word format
TO AMEND SECTION 39-5-38, RELATING TO DECEPTIVE OR MISLEADING ADVERTISEMENT OF A LIVE MUSICAL PERFORMANCE, SO AS TO DEFINE A SOUND RECORDING, AND TO PROVIDE CERTAIN EXEMPTIONS, REMEDIES, AND A FINE.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 39-5-38 of the 1976 Code, as added by Act 204 of 2004, is amended to read:
"Section 39-5-38. (A) For purposes of this section:
(1) 'performing person or group' means a vocal or instrumental performer seeking to use the name of another person or group that has previously produced or released, or both, a commercial recording;
(2) 'recording person or group' means a vocal or instrumental performer that has previously produced or released, or both, a commercial recording
(3) 'sound recording' means the fixation of a series of musical, spoken, or other sounds on a material object such as a disk, tape, or other phono-record on which the sounds are embodied.
(B) It is an unlawful trade practice pursuant to Section 39-5-20 to advertise a live musical performance or production in South Carolina through the use of a false, deceptive, or misleading affiliation, connection, or association between the performing person or group with a recording person or group.
(C) The advertisement of a live musical performance does not violate subsection (B) if the:
(1) performing person or at least one member of the performing group was a member of the recording person or group and has a legal right by virtue of use or operation under the group name without having abandoned the name of affiliation with the group;
(2) live musical performance or production is identified as a 'salute' or 'tribute' to, and is otherwise unaffiliated with, the recording person or group;
(3) advertising does not relate to a live musical performance taking place in South Carolina;
(4) performance is expressly authorized in the advertising by the recording person or group; or
(5) performing group is the authorized registrant and owner of a federal service mark for that group and registered in the United States Patent and Trademark Office.
(D)(1) The State may bring a temporary or permanent injunction for a violation or attempted violation of this chapter where the State believes an injunction would best serve the public interest.
(2) A court of this State that issues a permanent injunction to restrain and prevent a violation of this section may order the enjoined party to restore to its legal owner money or property to the enjoined party acquired through a violation of this section.
(E) A person who violates a provision of this section is subject to a penalty of at least five thousand dollars and not more than fifteen thousand dollars for each violation."
SECTION 2. This act takes effect upon approval by the Governor.
This web page was last updated on Monday, June 22, 2009 at 2:47 P.M.