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To amend section 1345.51 and to enact sections | 1 |
1349.80 to 1349.82 of the Revised Code to prohibit | 2 |
any person from advertising or conducting a live | 3 |
musical performance or production in Ohio through | 4 |
the use of a false, deceptive, or misleading | 5 |
affiliation, connection, or association between a | 6 |
performing group and a recording group. | 7 |
Section 1. That section 1345.51 be amended and sections | 8 |
1349.80, 1349.81, and 1349.82 of the Revised Code be enacted to | 9 |
read as follows: | 10 |
Sec. 1345.51. There is hereby created in the state treasury | 11 |
the consumer protection enforcement fund. The fund shall include | 12 |
civil penalties ordered pursuant to divisions (A) and (D) of | 13 |
section 1345.07 of the Revised Code and paid as provided in | 14 |
division (G) of that section, all civil penalties assessed under | 15 |
division (A) of section 1349.192 or division (D) of section | 16 |
1349.82 of the Revised Code, all costs awarded to the attorney | 17 |
general and all penalties imposed under section 4549.48 of the | 18 |
Revised Code, and all money unclaimed under section 4549.50 of the | 19 |
Revised Code. The money in the consumer protection enforcement | 20 |
fund shall be used for the sole purpose of paying expenses | 21 |
incurred by the consumer protection section of the office of the | 22 |
attorney general. | 23 |
Sec. 1349.80. As used in this section and sections 1349.81 | 24 |
to 1349.83 of the Revised Code: | 25 |
(A) "Performing group" means a vocal or instrumental group | 26 |
seeking to use the name of a recording group that previously | 27 |
released a commercial sound recording under the recording group's | 28 |
name. | 29 |
(B) "Recording group" means a vocal or instrumental group | 30 |
that includes at least one member who satisfies both of the | 31 |
following criteria: | 32 |
(1) The member previously released a commercial sound | 33 |
recording under the vocal or instrumental group's name. | 34 |
(2) The member has a legal right to the vocal or instrumental | 35 |
group's name by virtue of use of or operation under that group | 36 |
name or affiliation with the group. | 37 |
(C) "Commercial sound recording" means a work that results | 38 |
from the fixation on a material object of a series of musical, | 39 |
spoken, or other sounds, regardless of the nature of the material | 40 |
object, including, but not limited to, a compact disc, cassette | 41 |
tape, or phonograph album in which sounds are embodied. | 42 |
Sec. 1349.81. (A) Except as otherwise provided in division | 43 |
(B) of this section, no person shall advertise or conduct a live | 44 |
musical performance or production in this state through the use of | 45 |
a false, deceptive, or misleading affiliation, connection, or | 46 |
association between a performing group and a recording group. | 47 |
(B) Division (A) of this section does not apply to a person | 48 |
if any of the following circumstances apply: | 49 |
(1) The performing group is the authorized registrant and | 50 |
owner of a federal service mark for that group registered in the | 51 |
United States patent and trademark office. | 52 |
(2) At least one member of the performing group is a member | 53 |
of the recording group and has a legal right to that group name by | 54 |
virtue of use or operation under the group name without having | 55 |
abandoned the name or affiliation with the group. | 56 |
(3) The live musical performance or production is identified | 57 |
in all advertising and promotion for the performance as a salute | 58 |
or tribute to the recording group. | 59 |
(4) The advertising does not relate to a live musical | 60 |
performance or production that the performing group conducts in | 61 |
this state. | 62 |
(5) The performance or production is authorized expressly in | 63 |
writing by at least one member of the recording group. | 64 |
Sec. 1349.82. (A) The attorney general may investigate any | 65 |
person who has allegedly violated division (A) of section 1349.81 | 66 |
of the Revised Code. The attorney general has the same powers to | 67 |
investigate an alleged violation of division (A) of section | 68 |
1349.81 of the Revised Code as those powers specified in section | 69 |
1345.06 of the Revised Code. | 70 |
(B) If, after an investigation, the attorney general | 71 |
determines that reasonable evidence exists of a violation of | 72 |
division (A) of section 1349.81 of the Revised Code, the attorney | 73 |
general, within seven days after that determination, shall send | 74 |
the party who is the subject of the investigation, a written | 75 |
notice, by regular mail, that includes all of the following: | 76 |
(1) A description of the activity in which the party is | 77 |
engaging or has engaged that allegedly violates that division; | 78 |
(2) A statement that the attorney general will hold a hearing | 79 |
regarding that alleged violation and the date and place of that | 80 |
hearing; | 81 |
(3) A statement informing the party that the party or the | 82 |
party's attorney may appear in person at the hearing and present | 83 |
evidence and examine witnesses appearing for and against the | 84 |
party, or the party may submit written testimony stating any | 85 |
positions, arguments, or contentions. | 86 |
(C) The attorney general shall conduct a hearing to hear the | 87 |
testimony of all parties present pursuant to division (B)(3) of | 88 |
this section and shall consider any written testimony submitted | 89 |
pursuant to that division, and determine whether there has been a | 90 |
violation of division (A) of section 1349.81 of the Revised Code. | 91 |
The attorney general shall maintain a transcript of the | 92 |
proceedings of the hearing and issue a written opinion to all | 93 |
parties, citing the findings of the attorney general and grounds | 94 |
for any action taken. | 95 |
(D) If the attorney general finds, pursuant to a hearing held | 96 |
in accordance with division (C) of this section, that a violation | 97 |
of division (A) of section 1349.81 of the Revised Code has | 98 |
occurred, the attorney general may assess a civil penalty of not | 99 |
less than five thousand dollars nor more than fifteen thousand | 100 |
dollars per violation. Each performance or production performed in | 101 |
violation of division (A) of section 1349.81 of the Revised Code | 102 |
constitutes a separate violation. The attorney general shall | 103 |
determine the terms of payment. A civil penalty assessed under | 104 |
this division shall be deposited into the consumer protection | 105 |
enforcement fund, which is created in the state treasury under | 106 |
section 1345.51 of the Revised Code. The civil penalty assessed | 107 |
pursuant to this division is in addition to any other relief that | 108 |
may be granted pursuant to division (E) of this section. | 109 |
(E) In addition to any other action the attorney general | 110 |
takes pursuant to this section, if the attorney general has reason | 111 |
to believe that any person is violating or is about to violate | 112 |
division (A) of section 1349.81 of the Revised Code and that | 113 |
proceedings would be in the public interest, the attorney general | 114 |
may bring an action in the name of the state against the person in | 115 |
the court of common pleas in the county where the violation is | 116 |
occurring or is about to occur to restrain by temporary or | 117 |
permanent injunction the activity that results in the person | 118 |
violating that division. | 119 |
Whenever a court issues a permanent injunction to restrain | 120 |
and prevent violations of division (A) of section 1349.81 of the | 121 |
Revised Code as authorized under this division, the court may, in | 122 |
its discretion, direct that the defendant restore to any person in | 123 |
interest any moneys or property, real or personal, that may have | 124 |
been acquired by means of any violation of division (A) of section | 125 |
1349.81 of the Revised Code, under terms and conditions | 126 |
established by the court. | 127 |
Section 2. That existing section 1345.51 of the Revised Code | 128 |
is hereby repealed. | 129 |