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Session Law

2004

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Chapter 395 AN ACT PROHIBITING RECORDING CERTAIN PRODUCTIONS IN A MOVIE THEATER.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:


SECTION 1. Chapter 266 of the General Laws is hereby amended by striking out section 143, as appearing in the 2002 Official Edition, and inserting in place thereof the following section:-

Section 143. As used in sections 143A to 143H, inclusive, the following words shall have the following meanings:-

"Article" or "recorded device", the tangible medium upon which sounds or images are recorded or otherwise stored, and shall include any original phonograph record, disc, wire, tape, audio or video cassette, film or other medium now known or later developed on which sounds or images may be recorded or otherwise stored, or any copy or reproduction which duplicates, in whole or in part, the original.

"Audiovisual recording function", the capability to record or transmit visual images or soundtrack, including any portion thereof, from a motion picture.

"Motion picture theater", movie theater, screening room, or other venue if used primarily for the exhibition of motion pictures.

"Owner", the person or other entity who owns a master phonograph record, master disc, master tape, master film or other device used for reproducing recorded visual images or sounds on a phonograph record, disc, tape, film, video cassette or other article on which visual images or sound is recorded, and from which the transferred recorded images or sounds are directly or indirectly derived.

SECTION 2. Section 143A of said chapter 266, as so appearing, is hereby amended by striking out, in line 10, the words "one hundred and forty-three D" and inserting in place thereof the following figure:- 143E.

SECTION 3. Section 143B of said chapter 266, as so appearing, is hereby amended by striking out, in line 8, the words "one hundred and forty-three D" and inserting in place thereof the following figure:- 143E.

SECTION 4. Section 143C of said chapter 266, as so appearing, is hereby amended by striking out, in line 7, the words "one hundred and forty-three D" and inserting in place thereof the following figure:- 143E.

SECTION 5. Said chapter 266 is hereby further amended by striking out sections 143D and 143E, as so appearing, and inserting in place thereof the following 5 sections:-

Section 143D. (a) Nothing in sections 143A to 143C, inclusive, shall be construed to apply to any person lawfully entitled to use or who causes to be used such sound or images for profit through public performance, or who transfers or causes to be transferred any such sound or images as part of a radio or television broadcast or for archival preservation.

(b) Nothing in section 143A to 143C, inclusive, shall be construed to apply to local, state or federal law enforcement officers employing an audiovisual recording function during the lawful exercise of law enforcement duties.

Section 143E. Whoever violates any provision of section 143A to section 143C, inclusive, shall be punished:

(i) by imprisonment for not more than 1 year in the house of correction or by a fine of not more than $25,000, or by both such fine and imprisonment;

(ii) by imprisonment in the house of correction for not more than 2 years or by a fine of not more than $100,000, or by both such fine and imprisonment if the offense involves less than 1,000 but not less than 100 unlawful sound recordings or less than 65 but not less than 7 unlawful audio visual recordings; or

(iii) by imprisonment in state prison for not more than 5 years or by a fine of not more than $250,000, or by both such fine and imprisonment if the offense involves not less than 1,000 unlawful sound recordings or not less than 65 unlawful audio visual recordings.

Section 143F. (a) Any person, in a motion picture theater while a motion picture is being exhibited, who knowingly operates an audiovisual recording function, with the intent to unlawfully record the motion picture and without the consent of the owner or lessee of the motion picture theater, shall be punished for a first offense by imprisonment in the house of correction for not more than 2 years or by a fine of not more than $100,000, or by both such fine and imprisonment and for a second or subsequent conviction, by imprisonment in the state prison for not more than 5 years or by a fine of not more than $250,000, or by both such fine and imprisonment.

(b) Nothing in subsection (a) shall be construed to apply to local, state or federal law enforcement officers employing an audiovisual recording function during the lawful exercise of law enforcement duties.

Section 143G. In an action for false arrest or false imprisonment brought by any person, by reason of having been detained for questioning or awaiting the arrival of law enforcement, on or in the immediate vicinity of a motion picture theater, if such person was detained in a reasonable manner and for not more than a reasonable length of time by a person authorized to make arrests or by the owner or his agent or servant authorized for such purpose and if there were reasonable grounds to believe that the person so detained was committing or attempting to commit any violation of section 143F, it shall be a defense to such action.

Section 143H. Upon conviction of a person for a violation of sections 143A to 143C, inclusive, or section 143F, the court may order the forfeiture, destruction or other disposition of all recordings on which the conviction is based and all implements, devices and equipment used or intended to be used in the manufacture of the recordings on which the conviction is based. Such order shall be stayed pending any appeal.

SECTION 6. Chapter 272 of the General Laws, as appearing in the 2002 Official Edition, is hereby amended by adding the following section:-

Section 104. (a) As used in this section, the following words shall have the following meanings:

"Electronically surveils" or "electronically surveilled", to view, obtain or record a person's visual image by the use or aid of a camera, cellular or other wireless communication device, computer, television or other electronic device.

"Partially nude" the exposure of the human genitals, buttocks, pubic area or female breast below a point immediately above the top of the areola.

(b) Whoever willfully photographs, videotapes or electronically surveils another person who is nude or partially nude, with the intent to secretly conduct or hide such activity, when the other person in such place and circumstance would have a reasonable expectation of privacy in not being so photographed, videotaped or electronically surveilled, and without that person's knowledge and consent, shall be punished by imprisonment in the house of correction for not more than 2 1/2 years or by a fine of not more than $5,000, or by both such fine and imprisonment.

(c) Whoever willfully disseminates the visual image of another person who is nude or partially nude, with knowledge that such visual image was unlawfully obtained in violation of subsection (b) and without consent of the person so depicted, shall be punished by imprisonment in the house of correction for not more than 2 1/2 years or in state prison for a period of not more than 5 years, or by a fine of not more than $10,000, or by both such fine and imprisonment.

(d) This section shall not apply to a merchant that electronically surveils a customer changing room, provided that signage warning customers of the merchant's surveillance activity is conspicuous posted at all entrances, and in the interior of any changing room electronically surveilled.

(e) This section shall not apply to a law enforcement officer when acting within the scope of the officer's authority under applicable law, or by an order or warrant issued by a court.

(f) A sheriff, deputy sheriff or police officer may arrest without a warrant, any person believed upon probable cause to have violated this section.

(g) Any photograph, videotape or other recorded visual image, depicting a person who is nude or partially nude that is part of any court record arising from a prosecution under this section, shall not be open to public inspection and shall only be made available for inspection by court personnel to any law enforcement officer, prosecuting attorney, defendant's attorney, defendant, or victim connected to such prosecution, unless otherwise ordered by the court.

(h) A justice of the superior court or district court in a prosecution under this section may issue appropriate orders to restrain or prevent the unlawful dissemination of a person's visual image in violation of this section.

Approved November 16, 2004.

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