Arkansas Wants Every Person in Your Photos To Sign a Model Release. EVERY. SINGLE. PERSON.
Mar 29, 2015
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The next case in a seemingly never ending list of bills aimed at limiting photographers’ rights is SB-79 which was passed by the Arkansas Senate on Tuesday.
The bill aims 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”, and according to the American Society of Media Photographers it “expands the individual’s Right of Publicity to an unprecedented extreme”.
The bill would require explicit written consent for photographers or videographers to include an individual’s likeness in a photograph that is used for practically any purpose within the state of Arkansas. Several Fair Use exemptions have been made, but they’re far from being ideal.
“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”, stated the ASMP, adding that the bill’s implications are “staggering”.
It also explained that a photo posted online for a use that would not require written consent anywhere else in the world could lead to the photographer being sued, if people can be recognized in the photo and it can be viewed in Arkansas.
That’s right (and absolutely insane); the bill doesn’t refer only to photos taken in Arkansas. If you post photos online and the website can be viewed in Arkansas, you could be sued!
The ASMP has joined the Movie Picture Association of America and the Digital Media Licensing Association to fight this bill and convince Governor Hutchinson to use his veto power. The three organizations hope to get the bill changed so that a better compromise between an individual’s rights, the needs of creators and the public’s best interests can be achieved.
In its FAQ section, the ASMP explains why this bill is so problematic:
“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).”
This law is worse than the Right of Publicity Laws found in other states, as the ASMP details, since “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”. Sadly photographs are not exempt.
Visit the ASMP website for instructions regarding how you should contact the governor’s office, if you’d like to help battle this bill. Remember, if it passes, the bill will affect any photographer whose photos can be viewed in the state of Arkansas.
This comes just as the crazy bill in Texas proposing a ban on photographing police within 25-feet of them seems to be doomed.
Update: Governor Hutchinson vetoed the bill!
[via ASMP Advocacy Alert: Arkansas Senate Bill 79 via Reddit | Lead Image: Thomas Hawk]
Liron Samuels
Liron Samuels is a wildlife and commercial photographer based in Israel. When he isn’t waking up at 4am to take photos of nature, he stays awake until 4am taking photos of the night skies or time lapses. You can see more of his work on his website or follow him on Facebook.
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39 responses to “Arkansas Wants Every Person in Your Photos To Sign a Model Release. EVERY. SINGLE. PERSON.”
simple solution: get Arkansas off the internet – CHINA 2
My thoughts exactly.
You’re “wild guess” is wrong. 632m Chinese have access to the internet as of 2013, maybe it’s North Korea you’re thinking about, because I Skype with my relatives on a regular basis.
Like istock photo…
How about the states worry about what’s really wrong and stop trying to run our eveyday lives.
Film crews in California do it. Well, they’re supposed to.
America’s getting more idiotic by the microsecond.
WTF??? We are going back in the Dark Ages?
America, the land of the free, lol
“photographers rights” give me a break.
I live in this wonderfully backward state, and I am a photographer. So, seriously, Arkansas, WHAT THE FRENCH, TOAST?!?! And furthermore, DEFINE “PHOTOGRAPHER.” Anyone with a smart phone can be considered a “photographer” these days, at least to some. So are they going to start penalizing random Instagram photogs who snap away at every restaurant or Forever 21?
Well this is easy to get changed. Make sure you are in the background of any photograph of a politician in a public setting as soon as that appears on a site while they are looking for reelection and trying to raise funds sue.
In some contries this is already the case, you can’t take picture of someone without his consent. That pure logic if you made money with that pictures.
Well, considering some of the recent laws the Arkansas legislature has passed, I wouldn’t blame the for not wanting to show their faces.
guess that should cover any cctv cameras in place as well and every one should sue on account of those! that should gum up the court’s pretty quickly
Jillian Bogy, Have you read the text of AR SB-79? If you would, you would see that your “Instragram” example is unfounded. The practice of obtaining releases from people whose names, likenesses etc.. in commercial photography, video etc… is pretty much common practice already. You should know that as a photographer, correct?
In fact most states already have laws in place for to enforce this. In today’s digital media world where a person can be exploited harmed within an matter of hours at the hands of others, this kind of legislation protects the photographers as much as the person being photographed. This legislation is written to cover “COMMERCIAL” use of people’s likenesses, voices, identity, signatures only.
But, if a wedding photographer shoots, say on top of My Nebo, a popular public place for summer weddings, and l am even accidentally captured in the photograph as an “innocent” park visitor, and I see myself later in that photograph posted on instagram, technically I can sue the photographer, if I never signed a release and they were paid for shooting the wedding. not that I would.
Nope. Read the legislation. Part of the background. It may be a commercial shoot, but Instagram post more then likely was a non-commercial post. Nice try, but this is where the legislation helps the photographer by defining when or not the release is needed. What damages do you, as a bystander in a public place, have actually suffered? You can, of course, in our society still try and sue, but you will be responsible for the defendants legal costs once you lose. Good scenario though! (Something an Israelly troll might not know when writing a self promoting, fear mothering article)
I’m confused on whether you are just giving the author a hard time or whether you agree with the bill or both.
As both a citizen of Arkansas and a photographer, I clearly see flaws in the bill wording and your quick “matter-of-fact” response with no clear translation from the actual bill to laymen’s terms in how my scenario could NEVER lead to litigation.
I HAVE read the Bill and have professional photographer friends who have spoken with copyright lawyers and other professionals in the industry, in the state of Arkansas, who are clearly and rightly concerned with some of the possible loose interpretation of the terminology.
If you are indeed a local Arkansas photographer, and see no possible future legal trouble affecting your livelihood as a result of this bill, I wish you the best of luck and sincerely hope you never seen any ill willed litigation driven at your work.
Your are really perceptive. The answer is both. I agree with the bill and feel that the author is nothing more then a self promoting troll capitalizing on any way to get another article posted. The title, picture and caption is clearly outside the scope of the legislation only meant to capture readers.
I was a professional photographer, but now own a defense subcontracting company. I also had the unfortunate privilege of being the defendant in a non-compete litigation suit. In our society, you can sue anyone for any reason at all. It doesn’t matter if you are in the right or the wrong. What matters is who has the deepest pockets to outlast the litigation. I can give you two law firms and receipts of over $30K paid out to prove my point. This legislation defines the rules. This is a good thing.
The ONLY way to actually win a law suit is to PROVE damages. If a photographer is a professional and conducts business within the rules, he/she has nothing to worry about. There are two aspects to actually losing as photographer: 1. You had financial gains off of a defendant and 2. The defendant had damages. That is pretty high bar. If a photographer falls below this, well they deserve what they get.
In my litigious situation, the first thing my lawyer told me was even though I was right, NO ONE would win this case. This, LIKE MOST CIVIL SUITS, will never see the inside of a courtroom. It’s all about who has the deeper pockets. So if this legislation further defines the rules of business, it’s good for photographers as well as clients. Believe me a lawyer will not take a case pro bono unless he sees some cash at the end of the tunnel.
A copyright attorney drafted the bill. She is also a blogger (using images taken in public). If you take a photo of a specific individual and use it to promote a product that they did not agree to promote – you may be in hot water. If you take a photo of a lovely day at a campground with random people hanging around enjoying the view and post it on your website or put it in a collection of photos you sell online, you are fine.
You can sue anyone you like any time you like without bills like this. Does not mean they will win. How about you actually read the bill first
This is insane. The court system will have to get President Hillery to bail it out because of all the suits for online photos that can be seen in Arkansas and don’t have model releases for the people in them. It’s past time for government to mind it’s own business and stop protecting us from ourselves.
This is the BIO of the author of this article. Seems like the guy has a lot of free time on his hands if he’s writing self promoting fear mongering articles to get people to look at his website and Facebook page. Israel is long ways away to be trolling against the good people of Arkansas.
About Liron Samuels
Liron Samuels is a wildlife and commercial photographer based in Israel.
When he isn’t waking up at 4am to take photos of nature, he stays awake until 4am taking photos of the night skies or time lapses.
I’m with you dude, I’m calling BS on this one!
We already have the ability to address the issues this legislation purports to address. That is what the legal justice system is for. Laws like this are reactionary politics and create an atmoshpere that is counter productive to our states economy. Lawyers will have a field day interpereting the language in the bill and open any photographer up to the possiblity of frivolous law suites and can have a chilling effect on commericial photography and all media in general in Arkansas.
Who sits around and thinks of this crap. Oh OUR ELECTED OFFICALS.
Been saying for yrs..its a free country but we can only do what they let us…then we are taxed for doing something.
Wish they would worry about the ‘real problems’ in our country. Those ‘real problems’ just happen to be lawyers and politicians.
Ain’t that a fact…
This definitely goes under the heading, WTF?
This is propaganda, shame on you. The exemptions in this bill specifically mention fair use instances:
4-75-1010.Fair use—Commercial sponsorship.
20(a)(1)
It is a fair use and not a violation of this subchapter if a name, voice, signature, photograph, or likeness is used:
(A)In connection with a news, public affairs,or sports
broadcast, including thepromotion of and advertising for a sports broadcast,an account of public interest, or a political campaign;
Articles are popping up all over the internet today with almost the exact same language used, and it’s obvious you are being paid to disseminate propaganda by the folks who want the bill to die. I won’t be reading your blog as a place to find information with any integrity from this point forward.
sorry Arkansas. The Supreme Court has ruled everything and everybody in view from a public place is fair game.
This Article is Completely Misleading and a shame that people will stoop to such lengths to get people to read your article.
How about You actually read the bill and then post proof of your claims. WHile you are at it. How about you take a look at the Fair Use section in this bill.
Photographers and artists everywhere….BOYCOTT ARKANSAS! I’m assuming their city officials will be removing all the illegal traffic cameras from the streets, dash cams from police cars, and any other security videos that could possibly catch my likeness without my permission??? Since there is total expectation for privacy in AK public, that means their devices do not have my permission to film me and citizens can sue each city if not removed. Take those cameras out of the airports, I didn’t give you permission. Take them out of every retail store, I didn’t give you permission. Don’t televise those sporting events, I didn’t give you permission. I may have to get my law degree now…there’s a small fortune to be made in AK just suing the city alone if the bill is left in place.
Hey buddy, the abbreviation for Arkansas is AR. AK is the abbreviation for Alaska. Just saying……. Makes the effort to make custom screen name look a little foolish.
How will this apply if a bank robber’s image is captured on a bank camera. Can he sue the bank he robbed?
So I guess this means that they need a release to use their red-light cameras? That’s using the photo to obtain money isn’t it?
To all Arkansas (ARRRRRR) haters, the governor vetoed it. Get over it. Unless you would liek to read it.