(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; and

(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) A court of this State may issue a temporary or permanent injunction for a violation or attempted violation of this chapter where the court believes an injunction would best serve the public interest.

(2) A court 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 acquired by the enjoined party through a violation of this section.

(E) A person who violates the provisions of this section is subject to a penalty of at least five thousand dollars and not more than fifteen thousand dollars for each violation.

HISTORY: 2004 Act No. 204, Section 1, eff April 26, 2004; 2011 Act No. 60, Section 1, eff June 14, 2011.

Editor's Note

2004 Act No. 204, Section 2, provides as follows:

"The penalties and remedies provided in this act are cumulative of and in addition to other provisions of law."

Effect of Amendment

The 2011 amendment inserted subsection (A)(3), "sound recording" defined; in subsection (C)(1) added the text following "person or group" relating to the legal right; and added the remaining subsections (C)(5), relating to service mark, (D), relating to injunction, and (E), relating to penalty.