Arkansas Governor Vetoes Bill Threatening to Criminalize Photographers Worldwide

 

We recently reported Senate Bill 79 which intended to protect people from unauthorized commercial use without the person’s written consent, but in reality threatened to end street photography and criminalize photographers worldwide.

The huge outcry regarding the proposed law worked and Arkansas Governor Asa Hutchinson has just announced that he had vetoed the bill.

Bill supporters may attempt to override the veto, but the National Press Photographers Association states this is a clear win for photographers’ rights.

The Personal Rights Protection Act, intending to “protect the names, voices, signatures, photographs, and likenesses of the citizens of the state from exploitation and unauthorized commercial use without the citizen’s consent”, would solve certain issues that should definitely be addressed, but the way the bill was drafted meant it would cause quite a lot of unnecessary damage along the way.

For this reason Governor Hutchinson has decided to veto the bill, mentioning that it is too “broad and vague”, too restrictive and should have additional exemptions included.

The following statement was issued by the governor upon his veto:

“In its current form, the bill unnecessarily restricts free expression and thus could have a chilling effect on freedom of speech and freedom of the press. In addition, SB79 exempts certain types of noncommercial speech while failing to exempt other forms of noncommercial speech. The absence of these exemptions could result in unnecessary litigation and suppress Arkansans who engage in artistic expression.”

In a letter to the state Senate, the governor also mentioned that this bill would “result in Arkansas having one of the broadest Rights of Publicity statutes in the country and making Arkansas the forum of choice for many litigants”.

He also referred to photographers specifically stating that the bill “will suppress Arkansans who engage in artistic expression from photography to art work” and that he has received “scores of letters from professional and amateur photographers in Arkansas who raise legitimate concerns about the bill and they request the language be amended”.

The governor ended his letter stating that he respects the intent of the bill, but that he cannot support it in its current form.

This bill was part of a string of overreaching and seemingly crazy bills that have been introduced lately, another example being the bill that would ban photographing police within a distance of 25 feet, so it’s very relieving to see Governor Hutchinson’s common sense prevailing in this case.

Another ridiculous bill that unfortunately became a law allows photographers to decline same-sex clients.

Below is Governor Hutchinson’s full veto letter to the Senate president and members concerning SB79:

“Dear Mr. President and Members of the Senate:

Pursuant to Article 6, Section 15 of the Arkansas Constitution, I write to inform you that today I have vetoed Senate Bill 79, which I have returned to you with this letter. I have done so because in its current form it is overbroad, vague and will have  the effect of restricting free speech.

SB79 grants a property right in the use of an individual’s name, voice, signature, photograph or likeness and makes this right freely transferable, assignable, and descendible. SB79 provides that this right continues through the individual’s lifetime and up to fifty (50) years after the individual’s death.  The intent of the bill is to “[p]rotect the names, voices, signatures, photographs, and likenesses of the citizens of the state from exploitation and unauthorized  commercial use without the citizen’s consent.”  However, 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.

SB79 defines “commercial use” to include any use for advertising, fundraising or “obtaining money, goods or services.” While the intent is to protect citizens of Arkansas from unauthorized  commercial speech, the definition of “commercial use” to include any use for “obtaining money, goods or services” is too broad and vague.  This language may include speech beyond traditional commercial speech, including expressive speech produced for a profit. This would result in Arkansas having one of the broadest Rights of Publicity statutes in the country and making Arkansas the forum of choice for many litigants.

Additionally, while SB79 provides clear and explicit exemptions for certain types of noncommercial speech including news, public affairs, sports broadcasts and advertising for a political campaign, SB79 fails to extend an exemption to other forms of noncommercial  speech. Instead, SB79 provides that certain expressive works such as plays, books, magazines, newspapers, audiovisual work, and original works of art are only exempt to the extent they are protected by the First Amendment.  I believe the absence of a clear exemption for these types of expressive works will result in unnecessary  litigation in Arkansas courts and will suppress Arkansans who engage in artistic expression from photography to art work.

Moreover, the bill includes inconsistent language that makes it unclear whether a type of speech is completely exempt or is only exempt to the extent it is protected by the First Amendment. For example, SB79 explicitly exempts news and the promotion and advertising for a political campaign.  However, a “work of a political or newsworthy value” is only exempt to the extent it is protected by the First Amendment.  This ambiguity in SB79, and the lack of clear exemptions for certain types of expressive works, may have the effect of restricting and chilling constitutionally protected  speech.

Finally, SB79 includes broad jurisdictional  language to allow a party to file a civil action in any county where one or more defendants reside or a violation occurred. The broad jurisdictional  language allowing a civil action to be brought in any county where a violation occurred in combination with the absence of clear exemptions for certain types of expressive works goes beyond the stated intent of the bill, invites unnecessary litigation in Arkansas courts and encourages forum shopping.

I have received scores of letters from professional and amateur photographers in Arkansas who raise legitimate concerns about the bill and they request the language be amended so that they are not subject to substantial financial burdens in the conduct of their small businesses around the state.

Although I must veto SB79 for the reasons mentioned above, I wish to express my appreciation to its principal sponsor, Senator Woods. While I respect Senator Wood’s intent to protect the names, voices, signatures, photographs and likeness of Arkansas citizens, such as the Broyles family, from exploitation and unauthorized commercial use, I cannot support SB79 in its current form.”

Time will tell how much better a revised version of the bill will be, and it will most likely still have a negative impact on photographers, but it definitely can’t get any worse than SB79.

[via Governor Hutchinson’s website via NPAA | Lead image based on Arkansas Flag]