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ASMP Advocacy Alert: Arkansas Senate Bill 79


April 2, 2015: Update Arkansas SB 965 Failed

Earlier today, an attempt to pass Senate Bill 965, a revised right of publicity bill in Arkansas, failed. The Arkansas legislature will not consider a right of publicity bill again for at least 2 years.

 

The ASMP has been working with a group of associations including DMLA, NPPA and PPA, to develop language that strikes a fair balance between an individual's rights, the needs of creators and the public's best interests. We will continue to monitor similar legislative activity in other states and are prepared to respond if needed.

 

March 31, 2015: Update Arkansas SB 79 Vetoed

We are happy to let you know that Arkansas Governor Asa Hutchinson has vetoed SB 79, the right of publicity bill described below.

 

ASMP members responded to our call to action with an effective letter writing campaign. We thank and congratulate you for those efforts as your response helped bring about this outcome.

 

ASMP Executive Tom Kennedy notes, "The ASMP is very pleased that Governor Hutchinson recognized the flaws in this Bill and took appropriate action with his veto. We look forward to the opportunity to develop new language that will strike a better compromise between an individual's rights, the needs of creators, and the best interests of the public at large."

 

A subsequent effort to override the Governor's veto failed to achieve the necessary votes and the Governor's veto stands.

 

Neither the Arkansas Constitution or Senate Rules have a provision for bringing an override vote a second time, but we will continue to monitor the situation.

 

Governor Hutchinson's letter outlining his reasons for vetoing the Bill can be found here.

 

March 28, 2015: Arkansas Senate Bill 79: Personal Rights Protection Act

About the Bill

Guidelines for Your Message to the Governor’s Office

FAQ

Other resources

 

About the Bill

On March 24, the Arkansas Senate passed SB-79, “To Enact the Personal Rights Protection Act: and to Protect the Property Rights of an Individual to the Use of the Individual’s Name, Voice, Signature, and Likeness.” This bill expands the individual’s Right of Publicity to an unprecedented extreme.

 

SB-79 would require still and motion photographers to get explicit written consent to include any individual’s likeness — not just celebrities but anyone — in a photograph that is used for virtually any purpose within the state of Arkansas except those uses specifically exempted as Fair Use within the bill.

 

The implications of this bill are staggering. For example, an image showing recognizable people posted to the Internet for a use that would not require written consent anywhere else in the world could leave you open to a lawsuit just because someone in Arkansas could view it online.

 

SB-79 places an unprecedented burden on all photographers whose work could be viewed within the state of Arkansas to either get explicit consent from every individual whose likeness appears in all of their photographs or risk defending themselves in a lawsuit where they will have to shoulder the burden of proving the use of their photographs qualifies as an exempted use.

 

The ASMP is joining MPAA, DMLA, NPPA and other associations in a grass roots effort asking Governor Hutchinson to veto this bill so new language that finds a more balanced compromise between an individual’s rights, the needs of creators and the public’s best interests can be drafted.

 

To read the full language of the Bill, visit: http://www.arkleg.state.ar.us/assembly/2015/2015R/Bills/SB79.pdf

 

If you agree this bill must be stopped, please follow the guidelines below to send personalized messages to Governor Hutchinson and his Chief of Staff. Please also help us spread the word by sharing the URL for this page: www.asmp.org/SB79 with any photographers you know.

 

The bill must be vetoed by Tuesday, March 31 or the law will stand. Please make your voice heard today!

 

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Guidelines for Your Message to the Governor’s Office:

Send one copy to Governor Asa Hutchinson, care of katie.beck@governor.arkansas.gov
Send a second copy to Chief of Staff Michael Lamoureux at michael.lamoureux@governor.arkansas.gov

 

In your message:

 

  • Arkansas Residents: Note that you are a professional photographer, taxpayer and resident of Arkansas.
  • All Others: Note that you are a professional photographer whose work may be seen by the citizens of Arkansas.

     

  • Ask the Governor veto SB-79, which expands the Right of Publicity in Arkansas to an unprecedented level.

     

  • Explain your concerns, which might include:

     

    • By requiring photographers to get explicit written consent to include an individual’s likeness in a photograph that is used within Arkansas for virtually any purpose except those specifically exempted as Fair Use within the bill, SB-79 places an undue burden on still and motion photographers whose work is used to inform, educate and entertain the public.

       

    • By extending publicity rights to all individuals — not just citizens of Arkansas or celebrities — SB-79 will allow any individual or heir whose likeness is viewable in Arkansas to sue photographers over uses that would be allowed in their state or country.

       

    • SB-79 will not just impact photographers living and working in Arkansas. Anyone who publishes photographs on the Internet could find themselves sued in Arkansas over uses that are allowed everywhere else in the world. Clearly, this is not in the public’s best interests.

       

  • Include a short paragraph expressing how SB-79 will affect you personally. Answering 2-3 of these questions should do the trick:

     

    • Is it realistic to get signed releases from every individual that appears in all your photographs?

       

    • Is it possible in this Internet age for you to ensure your unreleased photographs are never viewed in Arkansas?

       

    • Will you still be able to pursue your livelihood knowing that anyone could sue you for including their likeness in an image that could be viewed in Arkansas?

       

    • How would such lawsuits affect you financially?

       

    • Can you afford to pay legal fees to defend yourself, especially knowing that you’re still liable for those legal fees even if the court finds in your favor?

       

    • If you’ve read the Fair Use exception in the bill, do you feel it’s clear enough that anyone reading could say with certainty what’s allowed and what isn’t?

       

  • Conclude with a second request that the Governor veto SB-79 so new language that finds a more balanced compromise between an individual’s rights, the needs of creators and the public’s best interests can be drafted.

     

Include your legal name, address and phone number in your signature.

 

FAQ

I’ve always needed releases for commercial uses, how is SB-79 different?

The big difference lies in the kinds of uses that SB-79 would require you to get releases for.

 

If you look at Section 4-75-1003, Definitions, on page 2 of the Bill, you’ll see that SB-79 defines “Commercial use” to mean:

“the use of an individual’s name, voice, signature, photograph, or likeness for:
(i) Advertising;
(ii) Fundraising; or
(iii) Obtaining money, goods, or services.”

Under this overly broad definition, the simple act of charging someone to license a photograph would qualify as “Obtaining money, goods, or services” so virtually every use of a licensed image becomes defined as a commercial use unless it qualifies under the limited list of exemptions in Section 4-75-1010, Fair use — Commercial sponsorship (on page 7 of the Bill).

 

Other states have Right of Publicity Laws, what makes SB-79 worse?

SB-79 goes much further than most Right of Publicity statutes, which only impose liability for unlicensed use of a name or likeness for advertising purposes, merchandising uses or false implied endorsements. Under SB-79, virtually any license for which money changes hands would be deemed a commercial use unless specifically exempted within the Fair Use section.

 

Section 4-75-1010, Fair use — Commercial sponsorship, on Page 7 of the Bill only provides for a conditional exemption for the use of a name or likeness in plays, books, magazines, newspapers, etc. This list of “expressive uses” in SB-79 explicitly excludes photographs. And, the exemption for the expressive uses included in the bill only applies if those uses are protected under the First Amendment or the Arkansas Constitution.

 

Determining how to apply the First Amendment in Right of Publicity cases, though, is neither straightforward nor predictable. Because those carve-outs are conditional, it places a defendant in the position of having to prove that the use is protected by the First Amendment as, otherwise, the use is automatically a violation of SB-79.

 

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.

 

Why is ASMP asking me to write a letter instead of providing a form letter or petition I can sign?

A quick Google search using the phrase “lobbying form letter vs personal vs petition” brings up article after article about the effectiveness of personal letters from individuals over form letters. The ideal lobbying tool is a handwritten letter sent on personal stationary, but the tight deadline on this veto necessitates using email instead.

 

While we recognize this creates extra work for you and that some photographers won’t take the time to craft a personalized letter, we also know that a smaller number of personalized letters will carry more weight than a larger number of form letters or a petition.

 

We hope that the guidelines we’ve provided ease some of the burden of writing a personalized letter, and we welcome your feedback on what we can do in the future to make this type of action easier. Please email your suggestions to Judy Herrmann at herrmann@asmp.org.

 

Other Resources

MPAA letter to Governor Hutchinson

 

DMLA letter to Governor Hutchinson