PROPERTY CODE
CHAPTER 26. USE OF A DECEASED INDIVIDUAL'S NAME, VOICE, SIGNATURE,
PHOTOGRAPH, OR LIKENESS
§ 26.001. DEFINITIONS. In this chapter:
(1) "Photograph" means a photograph or photographic
reproduction, still or moving, videotape, or live television
transmission of an individual in a manner that allows a person
viewing the photograph with the naked eye to reasonably determine
the identity of the individual.
(2) "Property right" means the property right created
by this chapter.
(3) "Name" means the actual or assumed name used by an
individual which, when used in conjunction with other information,
is intended to identify a particular person.
(4) "Media enterprise" means a newspaper, magazine,
radio station or network, television station or network, or cable
television system.
Added by Acts 1987, 70th Leg., ch. 152, § 1, eff. Sept. 1, 1987.
§ 26.002. PROPERTY RIGHT ESTABLISHED. An individual
has a property right in the use of the individual's name, voice,
signature, photograph, or likeness after the death of the
individual.
Added by Acts 1987, 70th Leg., ch. 152, § 1, eff. Sept. 1, 1987.
§ 26.003. APPLICABILITY. This chapter applies to an
individual:
(1) alive on or after September 1, 1987, or who died
before September 1, 1987, but on or after January 1, 1937; and
(2) whose name, voice, signature, photograph, or
likeness has commercial value at the time of his or her death or
comes to have commercial value after that time.
Added by Acts 1987, 70th Leg., ch. 152, § 1, eff. Sept. 1, 1987.
§ 26.004. TRANSFERABILITY. (a) The property right is
freely transferable, in whole or in part, by contract or by means of
trust or testamentary documents.
(b) The property right may be transferred before or after
the death of the individual.
Added by Acts 1987, 70th Leg., ch. 152, § 1, eff. Sept. 1, 1987.
§ 26.005. OWNERSHIP AFTER DEATH OF INDIVIDUAL. (a) If
the ownership of the property right of an individual has not been
transferred at or before the death of the individual, the property
right vests as follows:
(1) if there is a surviving spouse but there are no
surviving children or grandchildren, the entire interest vests in
the surviving spouse;
(2) if there is a surviving spouse and surviving
children or grandchildren, one-half the interest vests in the
surviving spouse and one-half the interest vests in the surviving
children or grandchildren;
(3) if there is no surviving spouse, the entire
interest vests in the surviving children of the deceased individual
and the surviving children of any deceased children of the deceased
individual; or
(4) if there is no surviving spouse, children, or
grandchildren, the entire interest vests in the surviving parents
of the deceased individual.
(b) The interests of the deceased individual's children and
grandchildren are divided among them and exercisable on a per
stirpes basis in the manner provided by Section 43, Texas Probate
Code, according to the number of the deceased individual's children
represented. If there is more than one child of a deceased child of
the deceased individual, the share of a child of a deceased child
may only be exercised by a majority of the children of the deceased
child.
(c) If the property right is split among more than one
person, those persons who own more than a one-half interest in the
aggregate may exercise the right on behalf of all persons who own
the right.
Added by Acts 1987, 70th Leg., ch. 152, § 1, eff. Sept. 1, 1987.
§ 26.006. REGISTRATION OF CLAIM. (a) A person who
claims to own a property right may register that claim with the
secretary of state.
(b) The secretary of state shall provide a form for
registration of a claim under this section. The form must be
verified and must include:
(1) the name and date of death of the deceased
individual;
(2) the name and address of the claimant;
(3) a statement of the basis of the claim; and
(4) a statement of the right claimed.
(c) The secretary of state may microfilm or reproduce by
another technique a document filed under this section and destroy
the original document.
(d) A document or a reproduction of a document filed under
this section is admissible in evidence.
(e) The secretary of state may destroy all documents filed
under this section after the 50th anniversary of the date of death
of the individual whose property right they concern.
(f) The fee for filing a claim is $25.
(g) A document filed under this section is a public record.
Added by Acts 1987, 70th Leg., ch. 152, § 1, eff. Sept. 1, 1987.
§ 26.007. EFFECT OF REGISTRATION. (a) Registration of
a claim is prima facie evidence of a valid claim to a property
right.
(b) A registered claim is superior to a conflicting,
unregistered claim unless a court invalidates the registered claim.
Added by Acts 1987, 70th Leg., ch. 152, § 1, eff. Sept. 1, 1987.
§ 26.008. EXERCISE OF OWNERSHIP FOR FIRST YEAR FOLLOWING
DEATH OF INDIVIDUAL. (a) Except as provided by Subsection (b),
for the first year following the death of the individual a property
right may be exercised, if authorized by law or an appointing court,
by the following persons who may be appointed by a court for the
benefit of the estate of the deceased individual:
(1) an independent executor;
(2) an executor;
(3) an independent administrator;
(4) a temporary or permanent administrator; or
(5) a temporary or permanent guardian.
(b) For the first year following the death of the
individual, an owner of a property right may exercise that right
only if the owner registers a valid claim as provided by Section
26.006.
Added by Acts 1987, 70th Leg., ch. 152, § 1, eff. Sept. 1, 1987.
§ 26.009. EXERCISE OF OWNERSHIP AFTER FIRST YEAR
FOLLOWING DEATH OF INDIVIDUAL. After the first year following the
death of the individual, an owner of a property right may exercise
that right whether or not the owner has registered a claim as
provided by Section 26.006.
Added by Acts 1987, 70th Leg., ch. 152, § 1, eff. Sept. 1, 1987.
§ 26.010. TERMINATION. A property right expires on the
first anniversary of the date of death of the individual if:
(1) the individual has not transferred the right; and
(2) a surviving person under Section 26.005 does not
exist.
Added by Acts 1987, 70th Leg., ch. 152, § 1, eff. Sept. 1, 1987.
§ 26.011. UNAUTHORIZED USES. Except as provided by
Section 26.012, a person may not use, without the written consent of
a person who may exercise the property right, a deceased
individual's name, voice, signature, photograph, or likeness in any
manner, including:
(1) in connection with products, merchandise, or
goods; or
(2) for the purpose of advertising, selling, or
soliciting the purchase of products, merchandise, goods, or
services.
Added by Acts 1987, 70th Leg., ch. 152, § 1, eff. Sept. 1, 1987.
§ 26.012. PERMITTED USES. (a) A person may use a
deceased individual's name, voice, signature, photograph, or
likeness in:
(1) a play, book, film, radio program, or television
program;
(2) a magazine or newspaper article;
(3) material that is primarily of political or
newsworthy value;
(4) single and original works of fine art; or
(5) an advertisement or commercial announcement
concerning a use under this subsection.
(b) A media enterprise may use a deceased individual's name,
voice, signature, photograph, or likeness in connection with the
coverage of news, public affairs, a sporting event, or a political
campaign without consent. Any use other than the above by a media
enterprise of a deceased individual's name, voice, signature,
photograph, or likeness shall require consent if the material
constituting the use is integrally and directly connected with
commercial sponsorship or paid advertising. No consent shall be
required for the use of the deceased individual's name, voice,
signature, photograph, or likeness by a media enterprise if the
broadcast or article is not commercially sponsored or does not
contain paid advertising.
(c) A person who is an owner or employee of a media
enterprise, including a newspaper, magazine, radio station or
network, television station or network, cable television system,
billboard, or transit ad, that is used for advertising a deceased
individual's name, voice, signature, photograph, or likeness in a
manner not authorized by this section is not liable for damages as
provided by this section unless the person:
(1) knew that the use was not authorized by this
section; or
(2) used the deceased individual's name, voice,
signature, photograph, or likeness in a manner primarily intended
to advertise or promote the media enterprise itself.
(d) A person may use a deceased individual's name, voice,
signature, photograph, or likeness in any manner after the 50th
anniversary of the date of the individual's death.
Added by Acts 1987, 70th Leg., ch. 152, § 1, eff. Sept. 1, 1987.
§ 26.013. LIABILITY FOR UNAUTHORIZED USE. (a) A
person who uses a deceased individual's name, voice, signature,
photograph, or likeness in a manner not authorized by this chapter
is liable to the person who owns the property right for:
(1) the amount of any damages sustained, as a result of
the unauthorized use, by the person who owns the property right or
$2,500, whichever is greater;
(2) the amount of any profits from the unauthorized
use that are attributable to that use;
(3) the amount of any exemplary damages that may be
awarded; and
(4) reasonable attorney's fees and expenses and court
costs incurred in recovering the damages and profits established by
this section.
(b) The amount of profits under Subsection (a)(2) may be
established by a showing of the gross revenue attributable to the
unauthorized use minus any expenses that the person who committed
the unauthorized use may prove.
Added by Acts 1987, 70th Leg., ch. 152, § 1, eff. Sept. 1, 1987.
§ 26.014. OTHER RIGHTS NOT AFFECTED. This chapter does
not affect a right an individual may have in the use of the
individual's name, voice, signature, photograph, or likeness
before the death of the individual.
Added by Acts 1987, 70th Leg., ch. 152, § 1, eff. Sept. 1, 1987.
§ 26.015. DEFENSES TO LIABILITY. A person shall not be
liable for damages under this chapter if he has acted in reliance on
the results of a probate proceeding governing the estate of the
deceased personality in question.
Added by Acts 1987, 70th Leg., ch. 152, § 1, eff. Sept. 1, 1987.
