2010 Wyoming Statutes
Title 40 - Trade And Commerce
Chapter 13 - Copyrighted Music

CHAPTER 13 - COPYRIGHTED MUSIC

 

ARTICLE 1 - PROTECTION OF COPYRIGHT USERS

 

40-13-101. Short title.

 

This act may be cited as the "Protection of Copyright Users Act".

 

40-13-102. Definitions.

 

 

(a) The following words, terms and phrases, when used in this act, shall have the meaning ascribed in this section, except where the context clearly indicates a different meaning:

 

(i) "Blanket license" includes any device or contract whereby public performance of musical compositions for profit is authorized of combined copyrights of two (2) or more owners;

 

(ii) "Blanket royalty or fee" includes any device or contract whereby prices for performing rights of musical compositions are not based upon the performance of individual copyrights;

 

(iii) "Composition" includes any and all musical, instrumental or vocal, compositions, which may be transcribed and reproduced by mechanical, electronic, magnetic means or devices, or any method now known or later developed;

 

(iv) "Copyright" means the exclusive rights and privileges provided for under the constitution of the United States and federal copyright laws;

 

(v) "Music licensing agency" means and includes any person, corporation or any association, society, partnership, union, or other organization of two (2) or more copyright owners or proprietors, which has or claims the exclusive or nonexclusive authority to issue, grant or to contract for, performing rights licenses for two (2) or more copyright owners. When two (2) or more copyright owners or proprietors are represented by the same agent or representative, this agent or representative shall be deemed to be a "music licensing agency";

 

(vi) "Performing rights" means "public performance for profit" of musical compositions;

 

(vii) "Person" means any individual, resident or nonresident of this state, and every domestic or foreign or alien partnership, society, association, corporation, or other organization;

 

(viii) "User" means any person, who, directly or indirectly, performs, or causes to be performed, musical compositions for profit.

 

40-13-103. Licensing requirements.

 

 

(a) No music licensing agency and no copyright owner who is a member of such music licensing agency or who licenses the performing rights to his music through a music licensing agency shall license the use of, or in any manner whatsoever dispose of, in this state, the performing rights in or to any musical composition which has been copyrighted, and is the subject of a valid existing copyright under the laws of the United States or collect any compensation on account of any sale, license or other disposition, unless such music licensing agency and each copyright owner shall:

 

(i) File annually with the secretary of state in duplicate a certified copy of each performing rights contract or license agreement made available from such music licensing agency or copyright owner to any user within the state;

 

(ii) Issue, upon request, licenses of performing rights of the compositions in the repertory of the music licensing agency to a radio broadcasting network, telecasting network or music service, on terms which authorize the simultaneous and delayed performance by broadcasting or telecasting or simultaneous performance by music service as the case may be, by some or all of the stations in this state affiliated with such radio or television network or by some or all subscriber outlets in this state affiliated with any music service without requiring a separate license for such station or subscriber for such performance.

 

40-13-104. Discrimination prohibited.

 

All groups and persons affected by this act are prohibited from discriminating against the citizens of this state by charging higher and more inequitable rates for music licenses in this state than in other states.

 

40-13-105. Licenses and fees; choices.

 

The licenses and fees made available pursuant to this article shall provide users with genuine economic choices between the various licenses and fees provided for application within the state of Wyoming.

 

40-13-106. Time for filing contracts and licenses; filing fee.

 

The contracts and licenses required by this article shall be filed with the secretary of state. A filing fee of five dollars ($5.00) shall be paid to the secretary of state at the time of each filing.

 

40-13-107. Blanket license fees.

 

Charges and fees under any blanket license for a blanket royalty or fee shall be valid and enforceable only to the extent that the music licensing agency shall have complied with the provisions of this act.

 

40-13-108. Doing business defined; amenability to process; service on nonresidents.

 

 

(a) All persons, groups, corporations, associations, foreign or domestic, subject to this act shall be deemed to be doing business within this state and amenable to the process of the courts of the state of Wyoming when:

 

(i) Any such persons, combinations or groups have been issued licenses, either from within or from without the state, for the privilege of using commercially and publicly any copyrighted work or works pooled in a common group or entity;

 

(ii) When any of the functions of the entity, organization, pool or combines, have been performed in this state.

 

(b) If such owners of copyrights comply with the provisions of this act they shall be granted the privilege of conducting business within this state in a legal manner, and may invoke the benefits of the state government and its political subdivisions in their behalf, using all of the privileges available to the citizens of this state. Use of such privileges shall be deemed to be an acceptance of the provisions of this act.

 

(c) The acceptance by such persons of the rights and privileges conferred by the law of this state to any of its citizens shall be deemed equivalent to and construed to be an appointment by such nonresidents of the secretary of state of the state of Wyoming to be their true and lawful attorney upon whom may be served all summons and processes growing out of a violation of this act. Service of such summons or process shall be made by leaving a copy with a fee of five dollars ($5.00) with the secretary of state of Wyoming, or in his office. Such service shall be sufficient and valid personal service upon any such nonresident defendant, copyright holder or owner, persons or defendants, combination, entity or organization. Notice of such service and a copy of the summons or process shall be forthwith sent by registered mail requiring personal delivery, by the prosecutor bringing any action under this chapter, to any defendant at his last known address, and the defendant's return receipt and the prosecutor's affidavit of compliance herewith are appended to the process and entered as a part of the return. The secretary of state shall keep a record of all such summons and process which shall show the day and time of service.

 

40-13-109. Injunction.

 

In the event any person, or groups of persons, or any combination, refuse to comply with the provisions of this act, then the county attorney for any county or the attorney general upon complaint of any violation, may institute injunction proceedings against the persons in the district court. The court may enjoin all persons from violating the provisions of this act and the constitutional provisions prohibiting price fixing, monopolies and combinations.

 

40-13-110. Right to sue; limitation; damages.

 

Any person in this state who is injured in his business or property or aggrieved by reason of any violation of this act may sue therefor within six (6) years of said violation in the district court in the county in which the violation or any part thereof took place, to recover any damages sustained as a result of the violation of the terms of this act, and shall be entitled to recover his costs, including reasonable attorney's fees. The court may in its discretion increase the award of damages to an amount not to exceed three (3) times the actual damages sustained.

 

40-13-111. Existing contracts not affected.

 

No blanket license or contract in existence with a user in the state of Wyoming at the time of the passage of this act shall be affected by this act.

 

40-13-112. Special appearances deemed general.

 

In the event any person, or any defendant is proceeded against as herein outlined, and is served with process according to law, appears in any proceeding by counsel or otherwise, or institutes any special proceeding attacking such proceeding, or makes any motion therein, either special or general, or appears to obtain the judgment of the court solely upon the sufficiency of the service of process, or upon any phase or particularity of the injunction proceedings, such special proceeding or appearance, or motion, or appearance shall be deemed as a general appearance.

 

40-13-113. Penalty for violations.

 

A person or music licensing agency who violates this act is guilty of a high misdemeanor and upon conviction is punishable for each violation by a fine of not to exceed one thousand dollars ($1,000.00), or by imprisonment in the state prison for a period of one (1) year, or both.

 

ARTICLE 2 - PROTECTION OF SOUND PRODUCTIONS

 

40-13-201. Definitions.

 

 

(a) As used in W.S. 40-13-201 through 40-13-206:

 

(i) "Owner" means the person who owns the original fixation of sounds embodied in the master phonograph record, master disc, master tape, master film or other device used for reproducing sounds on phonograph records, discs, tapes, films or other articles upon which sound is recorded and from which the transferred recorded sounds are directly derived;

 

(ii) "Performer" means any person appearing in a performance.

 

40-13-202. Prohibited acts.

 

 

(a) No person shall:

 

(i) Knowingly and without the consent of the owner, transfer or cause to be transferred any sounds recorded on a phonograph record, disc, wire, tape, film or other article on which sounds are recorded, with intent to sell or to cause to be sold for profit or used to promote the sale of any product, the article on which the sounds are transferred; or

 

(ii) Knowingly and without the consent of the performer or his agent, transfer to or cause to be transferred to any phonograph record, disc, wire, tape, film or other article, any performance, whether live before an audience or transmitted by wire or through the air by radio or television, with intent to sell or to cause to be sold for profit or used to promote the sale of any product, the article on which the performance is transferred.

 

40-13-203. Forfeiture and destruction.

 

Any article produced in violation of W.S. 40-13-202 and any equipment or components used in producing the article is subject to forfeiture to and destruction by law enforcement agencies.

 

40-13-204. Additional prohibited act; evidence.

 

No person shall knowingly or with reasonable grounds to know, advertise, offer for sale or resale, sell or resell, distribute or possess any article which has been produced without the consent of the owner or performer. Possession of five (5) or more duplicate copies or twenty (20) or more individual copies of recorded articles produced without the consent of the owner or performer is prima facie evidence that the devices are intended for sale or distribution in violation of this section.

 

40-13-205. Penalty.

 

 

(a) Any person who violates any portion of W.S. 40-13-202 is guilty of a felony and shall be imprisoned in the state penitentiary for not less than one (1) year nor more than two (2) years or fined not more than ten thousand dollars ($10,000.00), or both. Each violation is a separate offense.

 

(b) Any person who violates the provisions of W.S. 40-13-204 is guilty of a misdemeanor and shall be imprisoned in the county jail for not more than one (1) year or fined not more than ten thousand dollars ($10,000.00), or both. Each violation is a separate offense.

 

40-13-206. Exceptions.

 

(a) W.S. 40-13-201 through 40-13-206 do not apply to:

 

(i) Any broadcaster who, in connection with or as part of a radio, television or cable broadcast transmission or for the purpose of archival preservation, transfers any such sounds recorded on a sound recording;

 

(ii) Any person who transfers such sounds in the home, for personal use and without compensation for the transfer;

 

(iii) The transfer of sounds or possession of duplicate copies within an educational institution, solely for educational purposes; or

 

(iv) Any common carrier whose services or facilities are merely contracted for and used by another for the purpose of transferring sound.

 

ARTICLE 3 - COPYRIGHT LICENSE ENFORCEMENT

 

40-13-301. Definitions.

 

 

(a) As used in this act:

 

(i) "Copyright owner" means the owner of a copyright of a nondramatic musical work recognized and enforceable under the copyright laws of the United States pursuant to Title 17 of the United States Code, P. L. 94-553 (17 U.S.C. 101 et seq.). "Copyright owner" shall not include the owner of a copyright in a motion picture or audiovisual work or in part of a motion picture or audiovisual work;

 

(ii) "Performing rights society" means an association or corporation that licenses the public performance of nondramatic musical works on behalf of copyright owners, such as the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI) and SESAC, Inc.;

 

(iii) "Proprietor" means the owner of a retail establishment, restaurant, inn, bar, tavern or any other place of business or professional office located in this state in which the public may assemble and in which nondramatic musical works may be performed, broadcast or otherwise transmitted;

 

(iv) "Royalty" or "royalties" means the fees payable to a performing rights society for public performance rights;

 

(v) "This act" means W.S. 40-13-301 through 40-13-305.

 

40-13-302. Information required to be provided regarding royalty contracts; contract requirements.

 

 

(a) No performing rights society shall enter into, or offer to enter into, a contract for the payment of royalties by a proprietor unless at the time of the offer, or any time thereafter, but no later than seventy-two (72) hours prior to the execution of that contract, it provides to the proprietor, in writing the following:

 

(i) A schedule of the rates and terms of royalties under the contract;

 

(ii) Upon request of the proprietor, the opportunity to review the most current available list of the members or affiliates represented by the society;

 

(iii) Notice that it will make available, upon written request of any proprietor or bona fide trade association representing groups of proprietors, at the sole expense of the proprietor or bona fide trade association representing groups of proprietors, by electronic means or otherwise, the most current available listing of the copyrighted musical works in such performing rights society's repertory. The notice shall specify the means by which the information can be secured;

 

(iv) Notice that the performing rights society has a toll free telephone number which can be used to answer inquiries of a proprietor regarding specific musical works and the copyright owners represented by that performing rights society; and

 

(v) Notice that it complies with federal law and orders of courts having appropriate jurisdiction regarding the rates and terms of royalties and the circumstances under which licenses for rights for public performances are offered to any proprietor.

 

(b) Every contract between a performing rights society and proprietor for the payment of royalties executed, issued or renewed in this state on or after July 1, 1996 shall:

 

(i) Be in writing;

 

(ii) Be signed by the parties; and

 

(iii) Include at least the following information:

 

(A) The proprietor's name and business address and the name and location of each place of business to which the contract applies;

 

(B) The name and address of the performing rights society;

 

(C) The duration of the contract; and

 

(D) The schedule of rates and terms of the royalties to be collected under the contract, including any sliding scale or schedule for any increase or decrease of those rates for the duration of that contract.

 

40-13-303. Restrictions.

 

 

(a) No performing rights society or any agent or employee thereof shall:

 

(i) With respect to a contract executed, issued or renewed on or after July 1, 1996, collect or attempt to collect from a proprietor licensed by that performing rights society a royalty payment except as provided in a contract executed pursuant to the provisions of this act;

 

(ii) Enter onto the premises of a proprietor's business for the purpose of discussing a contract for payment of royalties for the use of copyrighted works by that proprietor without first identifying himself to the proprietor or his employees and disclosing that the agent is acting on behalf of the performing rights society and disclosing the purposes of the discussion.

 

40-13-304. Civil actions.

 

Any person who suffers a violation of this act may bring an action to recover actual damages and reasonable attorney's fees and seek an injunction or any other remedy available at law or in equity.

 

40-13-305. Applicability.

 

This act shall not apply to contracts between performing rights societies and broadcasters licensed by the federal communications commission or to contracts with cable operators, programmers or other transmission services. This act also shall not apply to investigations conducted by law enforcement agencies.