Bill that threatens professional photographers gains approval
By Roy Ockert Jr.
March 31, 2015
While most of the attention the past few days has been focused — and rightfully so — on a bill that will legalize discrimination against gay people in Arkansas, another incredibly bad piece of legislation will apparently become law this week.
Senate Bill 79, titled “The Personal Rights Protection Act,” is awaiting only the governor’s signature. Ostensibly it’s aimed at protecting “the property rights of an individual’s name, voice, signature and likeness.”
State Sen. Jon Woods, R-Springdale, originally proposed SB 79 in response to requests from the family of former University Arkansas football coach Frank Broyles, who complained that people were using his likeness on merchandise without permission.
That’s a reasonable request. No one should be able to, say, sell a sweatshirt with Broyles’ picture on the front without at least checking with him.
The Arkansas Press Association, which monitors media issues, especially during legislative sessions, looked at the original bill and didn’t see a problem. About 20 other states have publicity rights laws.
Along the way to final passage, though, SB 79 got amended five times, and each time the proposed law expanded a little.
Eventually, the press association found it objectionable and worked against it. The Arkansas Democrat-Gazette editorialized against it, saying it reads more like the “Lawyers Dream Act.” The legislators got caught up in the Razorback mystique, especially when the National Football League Players Association sent former UA football star Darren McFadden to lobby for the bill.
SB 79 includes a “Fair Use” clause that allows a name, voice, signature, photograph or likeness to be used for, among other things, “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 a political campaign.”
Therefore, a local newspaper that publishes a picture of a cheerleader performing at a football or basketball game is probably safe from a lawsuit for exploiting the cheerleader’s property rights in his or her image. Probably, I say, because anybody can sue, and the threat of a lawsuit may just convince the newspaper’s managers that it’s not worth taking a chance by using that photo.
The newspaper has a provable First Amendment right to publish a photo of a person taken in a public place, even though the language for fair use-commercial sponsorship is sloppy (for example, one could read the phrase “news, public affairs or sports broadcast” as relating to a news broadcast, not a printed news publication).
And if a business should happen to acquire that photo — legally, of course — and posts it on a Facebook page, that could be grounds for a lawsuit because the business is a commercial enterprise, not a news organization.
The greater problem that SB 79 poses is to professional photographers. As pointed out in an alert issued over the weekend by the American Society of Media Photographers, 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.”
That means, for example, the person hired to take pictures at a wedding would have to get written consent from anyone who might be in a photo because the work is being done for profit.
A professional photographer hired to take a picture of City Hall would have to make certain no one passing by gets in the picture.
The law, as it now stands, doesn’t apply just to a celebrity or a citizen of Arkansas but would allow any person or his heir whose likeness is viewable in Arkansas to sue photographers over uses, even if such use is allowed in that person’s state or country.
A friend and former colleague of mine, now a professional photographer in Conway, posted the media photographers’ alert on his Facebook page over the weekend. Among his friends who saw the post and resulting discussion was one Jason Rapert, also known as a Republican state senator from Conway. Despite voting for the bill, Rapert was apparently surprised by what he had approved.
“As best as I can remember, SB 79 was explained mainly pertaining to the images of someone who is deceased,” Rapert wrote. “I was not on the committee that heard the legislation, and there were no objections given on the floor the day of the vote that prompted any questions. Please send me whatever details you have from a reliable source that I can present to the governor for discussion. Had we known the bill went as far as is being claimed in your attachment, I would have objected.”
He added: “Media usage is integral to so many business interests and private interests. I am concerned. This is always one of my greatest fears when dealing with hundreds of bills in a very short period of time — we sometimes don’t get a full explanation of the impact legislation of this type has.”
The senator and his cohorts should have paid attention to the Arkansas Press Association and the Democrat-Gazette, both of which issued warnings before the Senate vote.
Perhaps the legislators should slow down and read the bills before them.
Roy Ockert is editor emeritus of The Jonesboro Sun. He may be reached by e-mail at royo@suddenlink.net.