Arkansas Bill keeps the Shutter Open to Lawsuits
Hear that sound?
That was the sound of Photographers “shuttering” over this new Arkansas bill and what it come mean to photography as a whole.
On March 24, the Arkansas Senate passed a Bill, titled “The Personal Rights Protection Act,” to protect the Individual’s name, voice, signature, and likeness from exploitation and authorized commercial use without the individual’s consent. (See SB-79 ) SB 79 was originally proposed in response to the request from the family of former University of Arkansas football coach Frank Broyles, who complained that people were using his likeness on merchandise without permission.
No one would argue that the family’s request was reasonable since you need consent to sell someone’s likeness on a merchandise.
However, SB-79 is seriously a misguided attempt to achieve that goal. This Bill is overboard, vague and confusing. Every photographer is up in arms… and rightfully so because it would require still motion and photographers to get explicit written consent to include any individual’s likeness—not just celebrities. The plain language of the Bill would require anyone who uses any picture for any purpose that could be construed as “commercial” exposed to a lawsuit, unless they receive express written permission from every individual in the picture.
Although this Bill has been vetoed by Arkansas Governor Asa Hutchinson, the legislature can still override it.
“The bill as drafted would extend protection beyond the stated intent of the bill, unnecessarily restrict free expression and may result in unnecessary litigation in Arkansas.” Gov. Asa Hutchinson
So let’s take a look at what this means to photographers!
Licensing Activity Should not be Commercial Use
What is commercial use? Commercial use refers to photography used to sell or promote a product, service, or idea. ( ASMP Business Resources) SB- 79 defines “commercial use” as any use of advertising, fundraising or “obtaining money, goods or service.” (See SB-79 )The majority of the photography world deals with licensing – the “bread and butter” of the industry.
The language “obtaining money, goods or service” is so overboard and vague that it is difficult to determine what the bill regulates. In a licensing transaction, there is a license agreement between the licensor (i.e. photographer) and licensee (i.e. user of the photograph) and a license fee, which put most photographers within the extremely broad definition of “commercial use.” (See Personal Rights Protection Act Section 4-75-1003(1)(A)(iii)).
As a result, not only does this Bill allows Arkansans to sue, but it allows any individual or their heir to go to Arkansas and initiate a lawsuit, (See Sections 4-75-1003(2)) and ( 4-75-1004(b)(3)), thus, making Arkansas a magnet for frivolous litigation.
Chilling Effect of SB-79 on Freedom of Speech
The First Amendment, applicable to the States through the Fourteenth Amendment, states that the government cannot prohibit the free exercise or abridge the freedom of speech. (See First Amendment ) Here, SB-79 includes speech beyond traditional commercial speech to include expressive speech produced for a profit. Restricting Photographers the right to take photographs places a significant burden on their freedom of expression. The proposed bill not only severely limits what pictures a photographer can take but it also limit their freedom of expression, which is an important part of a photographer’s job. Imagine a photographer witnessing something special, but cannot take a picture in fear of a lawsuit. A true photographer’s job is extremely dependent on how the First Amendment is interpreted and applied. If the law is applied too restrictive, photographers will be reduced to merely spectators whose pictures are dictated – not an artistic expression.
SB-79 “Fair Use” clause that allows a name, voice, signature, photograph or likeness to be used for, “in connection with a news, public affairs or sports broadcast, including the promotion of an advertising for a sports broadcast, an account of public interest or political campaign.” (See Section 4-75-1010(a)(1)(A)). The Bill encourages censorship for unflattering photographs or critical news reporting. However, the clause puts a considerable amount of burden on the user to prove “fair use.” ( See AR Gov. Letter). It restricts owners of photographs and videos from exercising their copyright interests through licensing, since it increases the cost to license a photographs through unnecessary consent. (See SB-79 )
SB-79 infringes on Photographers Fourth Amendment Right against Search and Seizure
The legislature of Arkansas have gone too far.
For proof that this Bill goes way too far, you need to look at the damage provision. Under the SB-79’s damage provision, the aggrieved party may be issued an injunction, confiscation of photographs and/or have the photographs destroyed. (See Section 4-75-1009).
The Supreme Court, although did not explicitly states, implied that the constitution broadly prevents warrantless searches of digital data. (See Riley v. California). In Riley, the Supreme Court held that a police officer may not, without a warrant, search the digital information on the cell phone seized during an arrest. This case implies that photographers have a property right in their photographs and cameras.
This Bill fails to provide necessary exemptions for the licensing and sale of visual content to meet first Amendment scrutiny that will result in unintended consequences. (See SB-79) Anyone in Arkansas with access to the internet is a potential petitioner. SB-79 is written to apply to all images used in Arkansas and to all individuals, so it can be applied to any image that was captured of any person anywhere in the world as long as that image can be seen in Arkansas.
This causes a major problem since the Bill does not clearly what it is regulating. The Bill, as written, needs to be revised to include new language that finds a more balanced compromised between the individual’s rights, the needs of creators and the public’s best interest.