The 23 year old Bruce Springsteen sang a song about a girl named Mary from Arkansas when he was auditioning for his first record deal in 1973. The rest, as they say, is history…. But had he taken a street photo of Mary, Queen of Arkansas in the present day the story could have been a little different.
The Arkansas Senate has recently passed bill SB79, the ‘Personal Rights Protection Act’ and its implications for photographers taking photos of any resident of Arkansas are hugely ominous. The bill can be seen to be banning the publishing of street photography there outright.
What is SB79?
SB79 is designed to “Protect the names, voices, signatures, photographs, and likenesses of the citizens of this state from exploitation and unauthorized commercial use without a citizen’s consent” – i.e. it appears at first glance to be covering what we as photographers have always known to be true about taking photos of people. That is, you can’t take a photo of someone without their permission and then use it in an advert to sell a pair of jeans (for instance) without asking them first and getting them to sign a model release.
HOWEVER, reading further down the Arkansas bill it becomes clear that how the bill is written means that this isn’t all it could be used to prevent. The bill defines “commercial use” as meaning using a person’s photo for “advertising;… fundraising; or… obtaining money, goods or services.” So a professional street photographer taking a shot of someone in Arkansas and then either selling the print (obtaining money), or putting the photo on their website to advertise themselves as a street photographer and selling their workshops would fall into this incredibly broadly worded category!
It keeps getting worse as you read more of the bill too. Again, the wording is so broad that any resident of Arkansas who has had their photo taken and published “commercially” is able to file a “civil action” (claim for damages) on the basis that they can see the photo in Arkansas, on the grounds that this is “the county where:… A violation of this subchapter occurred”. As the American Society of Media Photographers (ASMP) point out “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.”
But What About ‘Fair Use’? There must be a get out clause? Isn’t Street Photography Art?
Normally a street photographer is able to defend their right to taking and selling photos on the grounds that their work is personal art, which doesn’t endorse a product. Otherwise artists would never be able to make money doing anything! But even the “Fair Use” conditions of the bill don’t allow for street photography. The bill permits only permits the sale or advertising of “A single and original work of art” as long as it “is not a portrait, photograph, or likeness of an individual”.
Is there any hope?
Photographers can still take photos of people and publish them without their permission if the photo is “A work of political or newsworthy value” or for use in a “book, magazine” or “audiovisual work,… if it is fictional or nonfictional entertainment”. Not much ground for photographic art there then! One possible argument to use would be that street photography constituted photojournalism (I believe it does), and as such is “newsworthy”, but this totally discounts street photography as a form of high art and requires the street photographer to justify their work as part of some wider news-based project. It also appears a street photographer is fine taking photos as long as they don’t publish them at all, so anyone with a Vivian Meyer approach in Arkansas may be ok!
Is this just one of those typical Internet storms?
The American Society of Media Photographers (ASMP) doesn’t seem to think so. They say “the implications of this bill are staggering”. For the ASMP “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.”
The ASMP has been joined by the Motion Picture Association of America (MPAA), the National Press Photographers Association (NPAA), the Digital Media Licensing Association (DMLA) and the Professional Photographers of America (PPA) have all called for the bill to amended and the wording changed.
Can Anything Be Done?
Hopefully the fact that so many heavyweight photo and movie organisations have openly challenged SB79 will have some kind of effect. The deadline for vetoing the bill is today, Tuesday, March 31, so there is still time (just!) to make your voice heard as a street photographer! A guideline for what to you can do to oppose the bill can be found on the ASMP website here http://asmp.org/SB79#different. SB79 can be downloaded here http://www.arkleg.state.ar.us/assembly/2015/2015R/Bills/SB79.pdf. The PPA’s open letter to the Governor of Arkansas can be viewed on the FStoppers website here https://fstoppers.com/news/arkansas-senate-passes-bill-make-street-photography-illegal-state-65704.
According to SB79’s co-sponsor, State Representative Greg Leding, the original intent for the bill was to prevent images of former Arkansas Razorbacks coach Frank Broyles from appearing on merchandise without his permission. His comments can be found here http://www.katv.com/story/28656170/photographers-grow-concerned-about-sb-79-co-sponsor-defends-bill. It seems a real tragedy then, that a bill which was designed to prevent the exploitation of person’s image for purpose of selling t-shirts has been so loosely worded that it can be utilised in an overly litigious way to constitute an attack on the art form of street photography as a whole. As artists we need to challenge poorly defined pieces of legislation such as this, otherwise we may be denied a ‘Mary, Queen of Arkansas’ moment in the future.