BILL ANALYSIS
AB 702
Page 1
Date of Hearing: April 17, 2007
ASSEMBLY COMMITTEE ON ARTS, ENTERTAINMENT, SPORTS,
TOURISM, AND INTERNET MEDIA
Betty Karnette, Chair
AB 702 (Portantino) - As Introduced: February 22, 2007
SUBJECT : Musical performances or productions: deceptive acts
SUMMARY : Enacts the Truth in Music Advertising Act, which
specifically makes it illegal to advertise or conduct a live
musical performance through the use of certain deceptive
practices. Specifically, this bill :
1)Defines
a) Performing Group as a vocal or instrumental group that
uses the name of another group that has previously released
a sound recording.
b) Recording Group as a vocal or instrumental group with at
least one member who has previously released a sound
recording under the group's name and in which the member or
member's have a legal right to use the name.
c) Sound recording as a work that results from the fixation
on a material object of a series of musical, spoken, or
other sounds
2)Makes it unlawful for any individual or entity to advertise or
conduct a live musical performance or production unless
a) The group owns a service mark registered with USPTO; or
b) One member of the group was previously a member of the
recording group and has a legal right to use the name; or
c) The performance or production is advertised as a "salute
or tribute" and the name of the group performing does not
tend to confuse or mislead the public; or
d) The advertising does not relate to a performance or
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production in this state; or
e) The performance or production is expressly authorized by
the recording group.
EXISTING LAW :
1)Includes both a general prohibition against false and
misleading advertising, and a number of specialized statutes
aimed at deceptive advertising of particular services and
products.
2)Authorizes the attorney general or a county or city counsel to
seek an injunction against false advertising and a penalty of
$2,500 for each violation.
3)Prohibits the unauthorized use of a person's name, photograph
or likeness for purposes of advertising products or services.
4)Protects the rights of estates from the unauthorized use of
the names, voices, likenesses, or "personae" of deceased
celebrities in connection with the merchandising or
advertising of goods and services.
FISCAL EFFECT : Unknown
COMMENTS :
1)Background . According to the author, "Today's music consumers
enjoy legendary hits of the 1950s being replayed in movies,
television series, on radio stations, and live performances.
Mostly baby boomers attend the live performances for music
that deeply pleasured them in their youth, brought people of
different races together during turbulent times, but most of
all to honor artists whose work transcends time?What they are
not guaranteed when they purchase tickets for those live
performances is whether the artists are legitimate members of
these beloved musical groups or imposters. Shady promoters
have used the music and originality of mostly 1950s African
American musical legends without proper authorization for
several decades now. These musical legends, some of whom are
available for performances, don't work because imposter groups
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undercut their salaries and assumed their fame. And consumers
are being ripped off by paying for imposter group concerts
when they believe they are seeing the real thing!"
2)The Great Pretenders . This measure is sponsored by former
Sha Na Na leader, Jon "Bowzer" Bauman, chair of the Truth in
Music Committee at the Vocal Group Hall of Fame. It would
specifically protect consumers from imposter groups, and
artists from identity theft, as a result of musical acts that
illegally use the name of a legendary group or artist.
Imposter groups are very common in shows billed as "oldies
shows" where performers recreate hits of the bygone age and
are quite popular. Typical of the imposter groups touring are
those performing under the names of The Drifters, The Platters
or The Coasters. It is not uncommon for the imposter groups
to claim, during the performance, that "we recorded this song
in 1963?" or to sign autographs on the recording groups'
original records, records they never sang on and songs they
had nothing to do with until singing them in public some
30 years after the record first was released.
3)Other States . The sponsor has been successful in gaining
passage of nearly identical measures in nine states -
Pennsylvania, Connecticut, Illinois, Massachusetts, Michigan,
North Carolina, and South Dakota. Similar measures are also
pending in Delaware, Florida, Maine, Minnesota, New Jersey,
New York, Nevada, Texas, Vermont, Virginia, and Wisconsin.
4)Duplicative of California's Unfair Practices Act ? Under
current state law, a performing group that has the legal right
to use a name could sue an imposter group directly or ask a
district attorney, county or city counsel or the attorney
general to bring an action against the imposter group for
false advertising. To state a cause of action, it is
necessary only to show that members of public are likely to be
deceived; actual deception or confusion caused by misleading
advertising is not required. Consequently, this measure is
technically duplicative of current law.
In response, however, the sponsor argues that the measure
encompasses California's deceptive advertising statutes and,
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in terms clear to venue operators which book imposter groups
and to the groups themselves, explains that the activity is
illegal. Bauman reports that the mere existence of the Truth
in Music Advertising Act in other states has served as a
deterrent to imposter groups and the venues that hire them.
In other states where similar legislation has taken effect,
litigation has been avoided just by providing a venue operator
with a copy of the law. He further argues that this bill is
much more straightforward than the broader unfair-competition
statutes in California.
5)Enforcement . No penalties for violation of this measure are
specified, but are also not necessary. Generally the Unfair
Practices Act, in which this measure would be included,
provides civil remedies which could be pursued by the attorney
general, city or county counsel, district attorneys, and,
against an entity or individual. Damages include a civil
penalty of $2,500 for each violation and an injunction under
Business and Professions Code Section 17200 et seq. Common
law also permits general tort damages.
REGISTERED SUPPORT / OPPOSITION :
Support
Jon "Bowzer" Bauman, former Sha Na Na leader, chair of the Truth
in Music
Committee at the Vocal Group Hall of Fame
American Federation of Television and Radio Artists, AFL-CIO
Opposition
None on file.
Analysis Prepared by : Kellie Smith / A.,E.,S.,T. & I.M. /
(916) 319-3450