Arkansas Senate Passes Bill to Make Street Photography Illegal in State

Arkansas Senate Passes Bill to Make Street Photography Illegal in State

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]

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66 Comments

Mark Bienvenu's picture

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.

Zach Sutton's picture

"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.

Anonymous's picture

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.

Mark Bienvenu's picture

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.

Eric Lefebvre's picture

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.

Zach Sutton's picture

"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.

Eric Lefebvre's picture

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?

Anonymous's picture

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.

Howling Wolf's picture

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?

Jon Erdmann's picture

The US Supreme Court has already ruled on this one, no matter what the state of Arkansas does.

https://www.aclu.org/kyr-photo

Geof Kirby's picture

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...

Kyle Ford's picture

The fact these types of laws are being passed is maddening. Thanks for spreading the word mate.

Bobby Jones's picture

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.

Zach Sutton's picture

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.

Amateur and hobbyist would not be protected by the 1st amendment. Two things need to be met for first amendment protections. The courts have ruled “To achieve First Amendment protection, a plaintiff must show that he possessed: (1) a message to be communicated; and (2) an audience to receive that message, regardless of the medium in which the message is to be expressed.” Read some case law.

"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 guess i won't be visiting anytime soon for a holiday. Good luck Arkansas, i wish you all the best.

Nico Princely's picture

Sorry but I don't think people should be able to walk around take pictures without people's permission and profit from it. I think people rights of privacy and publicity need to be protected. This would certainly end harassing paparazzi if it was in state that had celebrities and the law was extended to include them. Currently they have few rights and I disagree with that.

And this is not taking away civil rights it's protecting people from having their image used and violating their rights.

I have not read the full law, but based on what I have read on this thread. I have no problem with it. Really why should you be able to take someone's picture profit from it and not even give them the option to decline or even get some pictures or something out of it.

Or what if someone takes someone picture in a public place then sells it as a stock photo and it get's used in an HIV ad and ruins that person reputation, social and sex life. Or two college buddies that have not seen each other in years hug each other and next them you know they image in a billboard or ads for a a gay dating website. Or Vegan that get's put into ad that goes against their beliefs.

Sorry but that's not cool any of it when you did not give your consent to be shot. I used to work for a Stock photo company and they were always trying to get me to be in front of the camera and I said "HELL NO!" and if any of the just for fun pictures we took ended up in the catalog I'd sue. I never signed a release and told them I do not want to be in their catalog.

You want to TF or Hire, what ever two people agree on is fine. But just shooting people without permission is not cool and I think it should be extended to non-commercial use as well when it is used in a derogatory or harassing manner.

That would end all of these people taking pictures of people in walmart and making fun of them in social media. Have some class and compassion seriously people. It would also end a lot of cyber harassment.

Anyone that thinks they have the right to take pictures of people without their permission and profit from it, is a inconsiderate, bottom feeder. You can at least give them a picture and get their permission.

And to those down voting me and disagreeing, how to you justify your stance ethically?

Gary Iverson's picture

When I first saw them putting up traffic and security cameras up all over town I was deeply concerned about our rights to privacy. It took a long time to get somewhat passed it. So, I guess with this legislation they will be taking all these cameras down, eh? (not holding my breath) and maybe they just don't want us videotaping the police abusing our rights.

Kyle Ford's picture

How is videotaping the police abusing our rights?

Eric Mazzone's picture

Go back and read that sentence again! The don't want US, video taping the POLICE beating US. Simple grammar man.

Eric Mazzone's picture

Nope, they're specifically allowed per the bill.

William Downs's picture

There is another bill HB1669 that seems to do the opposite

I haven't seen this mentioned anywhere, but does anything in this bill stop someone who only engages in street photography for fun? For example only posting on their own Flickr account, blog, or Fb page? There is nothing commercial about any of that . . . no money is changing hands anywhere. This would make any comments about selfies at football games invalid as well. Again, nothing commercial about that. Am I missing something? I have read the bill and don't see any language that would be relevant to these examples.