March 26, 2015
The Honorable Asa Hutchinson
Governor, State of Arkansas
500 Woodlane Street, Suite 250
Little Rock, AR 72201
Re: PERSONAL RIGHTS PROTECTION ACT: SENATE BILL 79
Dear Governor Hutchinson:
COMPANY is a member of the Digital Media Licensing Association (formerly Picture Agency Council of America, Inc.) (“DMLA”). COMPANY is in the business of licensing content, including photographs and videos, to the media. Some content includes the likenesses of identifiable people for which no releases are available. We urge you to veto SB 79, a right of publicity bill that applies to all persons (even outside Arkansas) that provides a descendible right of publicity for the life of any individual (celebrity or not) plus 50 years. SB 79 is far broader and more restrictive than any other right of publicity statute in the United States. SB 79 fails to provide necessary exemptions for the licensing and sale of visual content to meet First Amendment scrutiny and will have severe unintended consequences. SB 79 will have a chilling effect on the use of images by the media, and will create uncertainty among photographers and image providers, resulting in unnecessary and costly litigation to preserve freedom of expression as guaranteed by the First Amendment of the U.S. Constitution as well as the Constitution of the Arkansas.
Photographs, videos, and other visual content are essential in today’s world to communicate news, events, and entertainment and to record and share our culture. Most visual content used on websites, apps, newspapers, magazines, textbooks, documetary films, television, cable, blogs and the like are licensed by companies like ours that may create, distribute, and aggregate content and make it easily searchable and licensable online. The media relies on companies like ours for access to timely visual content to ensure complete and accurate reporting of news and cultural events to the public.
Licensing Activity Should Not be a Commercial Use:
As it is written, SB 79 is severely flawed and would not just interfere with the way our business has always been done, it will have the unintended consequence of making our entire business illegal. In a licensing transaction, there is a license agreement between the licensor and licensee and a license fee which places our business squarely within the extremely broad definition of “commercial use” in section 4-75-1003(1)(A)(iii) of the bill. Anyone could come to Arkansas and bring an action, preventing the lawful licensing of our content, for any reason, resulting in censorship and the loss of visual history. It is not possible to avoid liability by refusing to license visual content without releases to the media or publishers in Arkansas as web publishing makes any “use” available in Arkansas. Nor is it possible to obtain permission from every identifiable person in all the photographs or videos that record and depict actual events, such as news, entertainment, sports, and culture. The licensing of these types of photographs has never required permission. Any proposed legislation should be narrowly drafted and construed to look solely at how the end user is using visual content, and only prohibit the use of visual content in advertising, endorsements, and on mass-produced commercial products.
Other SB 79 flaws:
- Extends beyond citizens of Arkansas and will allow any individual or heir to come to Arkansas to bring a claim that would be impermissable in their state or country.
- Chills First Amendment-protected speech: there is no “fair use” exemption for photographs, even though photographs are as much a protected form of expression as a play, a book, a magazine, or a musical composition.
- Creates draconian penalties such as injunctions and destruction of photographs and the means of productions.
- Places the burden on users to prove the use is a “fair use”.
- Encourages censorship for unflattering or critical documentaries or news reporting.
- Restricts owners of photographs and videos of exercising their copyright interests.
- Increases the costs of image licensing by requiring unnecessary permission.
- Prohibits the sale of photographic prints, even though they are protected as expressive works under the First Amendment.
For these reasons, we respectfully request that you veto SB 79, and preserve what is a thriving, vital, and perfectly legal visual content licensing industry.