The bill, which passed the Arkansas legislature last week was designed to protect the privacy and rights of Arkansas citizens, but unfortunately, in that effort, it would have effectively made street photography illegal for making or viewing, even from out of state via the Internet in the state of Arkansas, unless the photographer was able to obtain a written release from each and every person recognizable in each photo, with a few exceptions.
The bill, sponsored by friends of longtime Arkansas football coach Frank Broyles' family, in a far reaching, unfair way, would have, in my opinion, unconstitutionally expanded the definition of “commercial photography,” well beyond what has been settled law in the US for decades.
Throughout the country, model releases are already required, including in Arkansas, for “commercial photography,” generally meaning photography for advertising purposes, or as part of a product, but in this bill, the Arkansas legislature sought to expand the definition of “commercial photography” to include any image sold, and require releases for those images. Such uses as news photography were exempt from this bill's “commercial photography” definition.
Moreover, the bill sought to penalize the photographer for the commercial use of an image for which the photographer had not obtained the requisite releases, far in excess of the actual damages incurred.
The ASMP (American Society of Media Photographers) wrote of 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.”Under this bill, had it become law, if a photograph was made of a group of people on a public sidewalk, for example, waiting at a bus stop, where the courts have ruled over and over again, there is no expectation of privacy, and sold as a work of art from a gallery, which currently in every state in the US is not considered a “commercial photograph,” under this bill, it would be, and would require the photographer to have a model release from everyone in the image, or the photographer could be sued for damages, and in addition, every piece of equipment used to make the image, store the image, print the image or display the image would be subject to confiscation.
Currently, in every state in the US, that image being sold via the gallery is not considered a “commercial image” or more rightly said, a “commercial use” of the image.
Looking carefully at the very poorly written bill, which would have created an impossible and unfair situation for photographers, amateurs and professionals alike, who do street photography, or who ever make images of people who are recognizable in the photos, Arkansas Governor Hutchinson vetoed it. He wrote this letter explaining his veto.
Governor Hutchinson, in his veto, beautifully laid out the problems with the bill and rightfully left open the Arkansas' legislature another opportunity to write a good, better reasoned bill that covers what Coach Frank Broyles' family is actually looking for.
I was extremely disappointed in the Broyles' family knee jerk reaction to the veto saying through their attorney, that the veto “is unfortunate.”
As a professional photographer, I wholeheartedly endorse the privacy principle of each person's “Right of publicity,” and think that right should extend past the death of someone, and belong to their heirs for some set time period. That said, I believe that right should be confined solely to “commercial photography,” meaning essentially advertising, and shouldn't apply to editorial photography as has been well defined through legislation and hundreds, if not thousands, of court decisions across America.
I would personally welcome codification of these accepted decisions and existing law by any state, or by the federal government, as such a law could be extremely helpful for photographers and the general public in understanding the existing reasonable limits of the “Right of Publicity.”
That said, I think the generally accepted current definition of the commercial use of photography meaning, the use of an image of a person in advertising, endorsement, for trade, or incorporated into a product, is more than sufficient and satisfactory to use as a definition in any law seeking to protect a person's privacy rights with regard to their ownership of their image, to protect against unwanted or uncompensated commercial exploitation.
Expanding the definition of commercial photography, as was done in the Arkansas bill was unwarranted and would have resulted in an unfair usurping of the rights of photographers under the First and Fourteenth Amendments.
I am grateful to Governor Hutchinson for the veto. I am hoping, now that the bill has been vetoed, various organizations such as PPA (Professional Photographers of America) and NPPA (National Press Photographers Association) will offer to assist the Arkansas legislature in writing a good bill in the future, and that they will accept that offer, as that will help ensure a well reasoned, constitutional, enforceable law protecting both photographers and the Arkansas general public from unscrupulous and scurrilous exploitation.