UPDATED BELOW
Over the past week, Arkansas Senate has been working diligently to pass SB-79 - known as the Personal Rights Protection Act. While the bill is designed to protect the privacy and rights of the citizens within the state, it also effectively makes Street Photography illegal from viewing or taking in the state of Arkansas.
The bill's full name does a lot as to explaining the bill. Entitled “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”, this bill is designed to take an individual's Rights of Publicity to an extreme, by allowing it illegal for them to be photographed or filmed on public grounds without a written consent.
As the ASMP (American Society of Media Photographers) explains --
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
The ASMP is not the only ones who have came forward addressing this bill in the negative light. The PPA has also stepped forward, writing an open letter to Governor Hutchinson, stating that with the vague wording of the bill, SB-79 could potentially put thousands of photography studios out of business. The new bill would make it so release forms would need to be obtained from every guest at weddings and other events that may be photographed on a professional level. They have attached their open letter below --
The ASMP and others have banded together to get this bill dropped from Arkansas law. The bill must be vetoed by Tuesday to ensure it does not go into law. The ASMP has asked all photographers (not just photographers in Arkansas) to stand up and write Governor Asa Hutchinson and Arkansas Chief of Staff Michael Lamoureux encouraging them to drop the bill from Arkansas law. You can find more information as to how to write them by clicking here.
For the bill in its entirety, you can read it here.
Update -- 3pm EST March 30th
As a result of the public outcry of Bill SB-79, Governor Asa Hutchinson has chosen to veto the bill in question. Along with his action of vetoing the bill, Gov. Hutchinson released the following statement --
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.
Great job well done, friends.
[Photo by John David Pittman | Used With Permission]
Well here is just another example how your civil rights are being bended day by day, slowly but steady and one day you will end up like a boiled frog in a pot - wiki explanation here: Boiling frog - Wikipedia, the free encyclopedia. Stand up for your rights, btw you have it in your constitution or am I wrong? Good luck guys, you will need it.
Thank you for this article, Zach. This bill, I believe, was introduced with good intention but is written far too broadly and could potentially be catastrophic to the photo industry in Arkansas as well as outside the state. Please take the time to read the bill and contact the appropriate parties with your concerns.
By protecting privacy and personnal rights, they are threaten both art and history. It's not just about photo industry, it's also about the ability to document the all-day life and the streets nowadays as a testimony of our time. They have to understand that street photography is not gossip.
Thanks to Henri Cartier Bresson and many others, we can see now how people lived in the 1950's.
And... well, it's in the land were the NSA is spying everyone's communications. That's a bad joke.
We can look forward to AK having no news channels :-), and Flickr, Instagram, 500px etc refusing to serve content there. Not I think what was intended
Yep. Things are going to get rough here Andrew. For future reference though...AK = Alaska. :) Now go send an email to the Governors office!
That said, I've heard Alaska is as desolate as they come...and probably doesn't have news channels.
Alaska is a lot more happening then a lot of places - lot of photo opptys for someone like yourself. A lot of culture and natural beauty to see as well as plenty of modern things in Anchorage-
Not true. There are many places in AK that are great even for street photography.
Certainly it increases the success rate when compared to the alternative of doing nothing.
News is specifically allowed per the law as fair use. Along with uses for political ads.
Not to mention, the Republican idiot is a musician. I think we aught to ban his music!
Its Ar not AK...
Ban internet in Arkansas. Fair is fair.
I've been to Arkansas. This is no loss. hehehe
Ok ok ok ok asshole comment aside, no really, this is BS.
Come on Nino!!!! I've read the bill. I do think it has good intention but the language is bad. Way too broad and too much to be left to interpretation.
Ehhhhh, I'm just being a jerk. I don't do street photography so I admit I am not terribly vested in these types of things. However, like any law in recent decades, there are dozens or even hundreds of details I certainly don't know about, so, I dunno just how rights-infringing this is, in reality.
Looks like my street photography career is over. Next thing you know it'll be illegal to LOOK at people in public.
wot!!!?
How does this not go against the first amendment?
HOLY MOTHER OF GOD! THEY CAN SEIZE YOUR CAMERA GEAR AND GIVE IT TO THE SUBJECT OF THE PHOTO!!! LOL
4-75-1009. Civil actions — Injunctions, impounding, or destruction of
14 materials — Damages.
...
18 (b) Upon finding a violation of this subchapter, the court may:
19 (1) Issue an injunction to prevent or restrain the unauthorized
20 commercial use of an individual’s name, voice, signature, photograph, or
21 likeness;
22 (2) Authorize the confiscation and restoration to the rightful
23 owner of an item considered contraband under § 4-75-1008; and
24 (3) Seize the instrumentalities used in connection with the
25 violation.
26 (c) An instrumentality seized under § 4-75-1008 may be:
27 (1) Awarded to the holder of the property right that was
28 violated; or
...
Let them try. They love the 2nd amendment there so much, wait until a photographer shoots back.
Curious why this was down voted ... it's written in black and white in the law.
Upon finding a violation of this subchapter, the court may:
...
(3)Seize the instrumentalities used in connection with the violation.
(c) An instrumentality seized under § 4-75-1008 may be:
(1) Awarded to the holder of the property right that was violated;
It was probably John Johnson Jr who did it, the local troll I guess.
What about CCTV?
After the Boston boomings the police used CCTV and peoples photographs to track the boomers. This seems like a bill that has not been thought through! It will do more harm that good.
Nope, law enforcement is allowed to photographer, so those cameras are okay.
I sure am glad I got to take this picture (in Harrison) Arkansas) this October before they passed that law.
Republicans right? US is being run by idiots.
Yes Senator Jon Woods is a Republican, elected in 2006, started a Band called The Good Fight in 2006 with their music played on many reality shows on MTv and such.
His twitter account is @jon_Woods let him have it!
I just sent him a message that if anyone in his state sues me because they saw one of my images on the internet, I will sue him in return, then deport his ass from MY nation.
And i tweeted him, hashtag #streetphotography
Thing is, republican senators are doing some of the most stupid things in the US. And the stuff they say...utter rubish!!
Anyway, here in Europe we can photograph all we want, there are rules for street photography, but as long as you play smart, there will be no problem.
This bill does not make street photography illegal. It outlaws the use of an identifiable person's likeness for fundraising, advertising, or to solicit goods or services. Street photography is 100% legal. Any photograph showing any person as a general member of the public is 100% legal. Any photograph being used for news, public affairs, editorial, etc is 100% legal. Any photograph that is not being used commercially is 100% legal. Anything already protected by the Arkansas constitution or the 1st Amendment remains protected. All of this is clearly stated in the bill.
Despite any issues this legislation may have, I think much of it is being reported incorrectly and re-blogged without any new authors taking the time to read it. Bad information doesn't help anyone. If you want to contact an Arkansas politician to complain about this bill, please read it first so you can complain about the restrictions it actually does impose instead of fictional ones that do not exist and will limit the value and credibility of your correspondence.
"Any photograph that is not being used commercially is 100% legal."
So you're unable to sell the image, as that would make it commercial. You're unable to display the image in a gallery because that gallery would be operating under a commercial license. You're unable to use the images to advertise your work assuming that you're working for commercial profits.
So on a professional level, they've made Street Photography illegal, without a release of everyone involved in the photos.
I detect a little bit of sensationalism as well and the headline is somewhat misleading. I haven't read every single word of the bill, but scanning through it, there appears to be a rather lengthy list of exceptions that covers everything from news, art-work, non-profits and educational institutions. My own common sense interpretation of this bill is that it states what is already incredibly obvious among photographers (particularly anyone who shoots street). If it's for personal/non-commercial use there isn't much a person can do to stop you. If you want to make money off of someone's image or likeness however, you would be well-served to get a model release. If your start raking in hundreds or thousands of dollars from someone's image/likeness and they find out about it, you have a fight on your hands regardless of what this bill says. If it can be construed as disparaging, even worse. There's a reason no one will purchase rights to a photo of a human being without some sort of model release these days. This bill is a waste of time because it's redundant, adds more bureaucracy and states what most practicing photographers already know. Making street photgraphy illegal though? No, hardly.
I'm certainly not a politician or a lawyer, but I think you are misinterpreting this bill. Street photography - the thing you have demonstrated perfectly in the cover image under the headline - would be completely unaffected by this law.
If I'm the one who is misinterpreting this bill, I'd love for you or anyone else to point out the section that you feel would ban street photography and say a few words about how you came to that conclusion.
Making money from a photograph does not always equate to commercial use, so it can't just be generically classified like that.
You are correct. It doesn't ban street photography.
"Commercial use" means the use of an individual's name,
25 voice, signature, photograph, or likeness for:
26 (i) Advertising;
27 (ii) Fundraising; or
28 (iii) Obtaining money, goods, or services.
Now, do you have advertising on your website where you'll be showing those images? That could be construed as using their likeness to obtain money or for advertising.
Would you like to compile a nice book for sale? Well, that's certainly commercial usage under this laws very broad definition ... Vivian Maier's books would never have been published under this law.
Want to do a showing at a gallery? Nope! Not without a signed release.
Want to sell limited fine art prints ... again nope.
What jumped out at me with this law is the effect it will have on wedding photography (see above for my comment on that).
Essentially, I'd have to get a WRITTEN permission from EVERYONE at the wedding to be able to do my job now.
Also, people already think that taking their picture is a crime ... we don;t need another messed up law muddying those waters.
"Commercial use" means the use of an individual's name,
voice, signature, photograph, or likeness for:
(i) Advertising;
(ii) Fundraising; or
(iii) Obtaining money, goods, or services.
You said it as clear as day. If you're obtaining money from a photograph, then your work applies to commercial use.
Try this one on for size.
""Commercial use" means the use of an individual's name,
25 voice, signature, photograph, or likeness for:
26 (i) Advertising;
27 (ii) Fundraising; or
28 (iii) Obtaining money, goods, or services."
For ... obtaining money ...
You are a wedding photographer. You want to sell prints to the bride and groom or to any of the guests? Or sell a license for digital files for the clients? Under this law you'll need to get WRITTEN consent (not implied as it currently stands) from EVERYONE!
The celebrant, the guests, the musicians, the wait staff, the bridal party, the bride and groom ... EVERYONE.
How likely is that to happen? How much of a burden is that on a legitimate business?
Again, I think this bill is the result of someone who had too much time on their hands and I'm not for creating legislation solely for the sake of doing so. With that being said however the title "makes street photography illegal" is somewhat over the top. The following exceptions address the wedding photography thing as far as I can tell. The part about anything being protected or previously ruled upon regarding the 1st Amendment also covers some the other issues
As Engrossed: S1/26/15 S2/2/15 S2/12/15 S2/26/15 S3/3/15 H3/13/15
(A) The claimant proves that the use is so directly connected with a product, article of merchandise, good, or service other than the work itself as to constitute an act of advertising, selling, or soliciting purchases of the product, article of merchandise, good, or service by the individual without the prior consent required by this subchapter; or
24
(B) The use is not protected by the First Amendment of the Constitution of the United States or the Arkansas Constitution.
I think it would be nearly impossible for a guest to sue for damages regarding payment received in fullfillment of your contract with the representative party (bride and groom). In that case, the photos constitute "the work itself." However, to be quite honest, if you want to use those photos to advertise on your site, you probably should have releases for any guests whose images you want to use as well as a clause in your contract with the bride and groom to use their images as advertisement. You can certainly forgo this and 99% of the time have no problems, but bill or no bill, people can still go after you if they so desire. With the way the world is today, there is nothing stopping an angry guest from making your life miserable and filing a civil suit or take-down notice because their face is making you money on your website (unless you have written consent.) This bill doesn't make this a crime but simply outlines what people in all 50 states can do and are doing right now if your business model rubs them the wrong way (regardless if they have specific legislation to guide them or not.) This bill doesn't compell anyone to seek damages regarding their image being used for advertisement absent their consent, but it says if they want to (and you don't have a release) they can. It's the same thing that already happens, which is why I don't see the purpose behind it.
I'm certainly no lawyer, but in the end, the hunch I get from this is that it is more or less directed towards a business using someone's image or likeness to sell a product for advertising/commercial purposes without consent. Since most business entities already know doing so is a bad idea and that they can get hammered over it, the bill is simply bloatware in the system. If a business is ignorant of what "commercial use" is (or could care less), they will probably be ignorant of this bill as well and the corrective measures are already in place for dealing with it. The status-quo isn't affected by this legislation.
I admit not having read the law. I wonder though, how a great "street" photo print could be sold? If I put one in my for-sale gallery on my website, am I in violation? Is the print itself a product and the web image advertising?
The US Supreme Court has already ruled on this one, no matter what the state of Arkansas does.
https://www.aclu.org/kyr-photo
As I read this law, and I'm willing to stand corrected, it attempts to stop the commercial (as defined) use of images of people and business entities. This law therefore codifies the principle that non-commercial use ie editorial should be OK but that images can't be used in a commercial context without permission (and presumably payment). Hasn't this been the case all along ? If so, work like Vivian Maier's can continue without hindrance
@Zach, this is not correct. Selling the image to anyone you want is not a commercial use. Read the bill again and you'll see that commercial use is defined. As a matter of principle it is rarely the photographer who is sued, it is the publisher of an image and the context in which it is published that causes the problems.
Putting an unreleased image in a shop window to promote your business would be a commercial use and would therefore cause problems. Putting the same image in an album kept inside your shop to illustrate the quality or range of your work is generally permissable.
The bill actually was intended to stop the sale of shirts and sports memorabilia with the image of Frank Broyles on it... that's it - no sinister plan to take over the world or stop street photographers, etc...
The fact these types of laws are being passed is maddening. Thanks for spreading the word mate.
The only possible reason for this to exist is so that they can eliminate people photographing/videotaping cops.
How about you take a moment and actually READ THE BILL before write such outrageously FALSE HEADLINES? This bill did not make street photography illegal.
Look at the fair use
4-75-1010. Fair use — Commercial sponsorship.
21 (a)(1) It is a fair use and not a violation of this subchapter if a
22 name, voice, signature, photograph, or likeness is used:
23 (A) In connection with a news, public affairs, or sports
24 broadcast, including the promotion of and advertising for a sports broadcast,
25 an account of public interest, or a political campaign;
26 (B) In:
27 (i) A play, book, magazine, newspaper, musical
28 composition, audiovisual work, or radio or television program if it is
29 fictional or nonfictional entertainment, or a dramatic, literary, or musical
30 work;
31 (ii) A single and original work of art that is not a
32 portrait, photograph, or likeness of an individual;
33 (iii) A work of political or newsworthy value; or
34 (iv) An advertisement or commercial
35 announcement for any of the works described in this subdivision
4-75-1010. Fair use — Commercial sponsorship.
21 (a)(1) It is a fair use and not a violation of this subchapter if a
22 name, voice, signature, photograph, or likeness is used:
23 (A) In connection with a news, public affairs, or sports
24 broadcast, including the promotion of and advertising for a sports broadcast,
25 an account of public interest, or a political campaign;
26 (B) In:
27 (i) A play, book, magazine, newspaper, musical
28 composition, audiovisual work, or radio or television program if it is
29 fictional or nonfictional entertainment, or a dramatic, literary, or musical
30 work;
31 (ii) A single and original work of art that is not a
32 portrait, photograph, or likeness of an individual;
33 (iii) A work of political or newsworthy value; or
34 (iv) An advertisement or commercial
35 announcement for any of the works described in this subdivision
service
24 by the individual without the prior consent required by this subchapter; or
25 (B) The use is not protected by the First Amendment of the
26 Constitution of the United States or the Arkansas Constitution.
27 (b)(1) The commercial use of an individual's name, voice, signature,
28 photograph, or likeness in a commercial medium does not constitute a
29 commercial use for purposes of advertising or solicitation if the material
30 containing the commercial use is authorized by the individual for commercial
31 sponsorship or paid advertising.
32 (2) A determination of whether or not the commercial use of an
33 individual’s name, voice, signature, photograph, or likeness is so directly
34 connected with the commercial sponsorship or paid advertising as to
35 constitute an authorized use for purposes of advertising or solicitation is a
The only thing that ticks me off more than Fear Mongers running their mouths just to gain popularity are Fear Mongers running their mouths and have not even taken a moment to ACTUALLY READ UP on a subject before spreading their Fear.
It's funny. I'm being sensationalist, yet every single professional organization for photographers have came out of the woodwork to show adamant support for this bill to be vetoed. There reasoning, because it could make Street Photography illegal.
ASMP is the ones who created the website asking for photographers to write the governor. PPA has provided the letter attached. Other outlets have shown their support in vetoing the bill on social media campaigns everywhere.
Now I'm not sure where it doesn't fall into being legal under fair use. In fact, the fair use laws specifically name Portraits of people as something that is not legal under fair use.
Well, the only thing that ticks me off is someone who believes that because they read the article and the bill, they understand more than other people and resort to name calling and condescending behavior to end other peoples opinions or opposition of their view. I don't know your qualifications and don't care. I would rather believe organizations like the American Media Photographers Association and Motion Picture Association of America, and their lawyers must recognize a legitimate concern by the wording and vagueness of the bill. "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). "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.
Section 4-75-1010, Fair use — Commercial sponsorship, on Page 7 of the Bill only provides for a conditional exemption for the use of a name or likeness in plays, books, magazines, newspapers, etc. This list of “expressive uses” in SB-79 explicitly excludes photographs. And, the exemption for the expressive uses included in the bill only applies if those uses are protected under the First Amendment or the Arkansas Constitution.
Determining how to apply the First Amendment in Right of Publicity cases, though, is neither straightforward nor predictable. Because those carve-outs are conditional, it places a defendant in the position of having to prove that the use is protected by the First Amendment as, otherwise, the use is automatically a violation of SB-79.
SB-79 is written to apply to all images used in Arkansas and to all individuals, so it can be applied to any image that was captured of any person anywhere in the world as long as that image can be seen in Arkansas."
I fell for the click bait. Then I read the actual law. Please show me how this law makes street photography illegal. It doesn't. Period. The law plainly says any artistic or news photograhpy covered under the 1st amendment is exempt. In fact, pretty much any photography not used for advertising is exempt. Thanks for the drama, though.