Ontario Journalist, Writer, Photography & Filmmaker

Arkansas SB-79, Photography is Not Dead

There has been much wringing of hands and gnashing of teeth over the past couple days in relation to a new law in Arkansas that is awaiting gubernatorial signature. The online photo media is abuzz and replete with sensational headlines declaring the end of photography (again).

The law is SB-79 and known colloquially as the Personal Rights Protection Act. I have read the text of the bill. It seems that a lot of people who are commenting on it have not.

The concern among photographers is that the law is the beginning of the end for street photographers. The reaction has certainly been Chicken Little-like. The American Society of Media Photographers posted a commentary on the law on its website. In the text, ASMP says that the law would restrict use of a photography containing the image of a recognisable person “…for virtually any purpose…” No, it really doesn’t.

The law prohibits the use of the likeness or voice of an individual for commercial purposes. There are already such laws in place and protections against improper use of a person’s likeness for commercial purposes in existing federal law.

Under this law, in order for a person’s likeness in a photograph to be used for commercial purposes, the person must give their written consent. That is already the case under extant federal law. The only additional restriction, that I can see, is that selling prints as art would not be permitted under the Arkansas law. Images containing a likeness of a person can still be used for news reportage. Can still be used for political commentary. Posting images on a site such as Flickr, Facebook or Instagram is not a commercial use. Using images in a portfolio has not been considered a commercial use.

I have seen people toss up the idea that this is an infringement on photographers’ First Amendment rights. I have read that piece of law as well. Again, seemingly unlike many who are trying to use it as an argument against this piece of legislation. The First Amendment to the Constitution of the United States states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

The only possible argument is dealing with freedom of speech. But that is not what this law does. Abridging freedom of speech would be to outlaw photography of people in Arkansas. That is not what this law does. What the law does is abridge what can be done commercially with those images. There is no right to profit in the First Amendment.

This law is hardly the end of street photography in Arkansas. It does seem to add an additional restriction to existing law; and aside from that one, small, additional prohibition, that will have little impact in the grander scheme, does seem to be a piece of unnecessary legislation, but there’s a lot of unnecessary legislation passed by governments. Even the restriction on artistic use (i.e., sale of prints) is in question given the Fair Use exemption in 4-75-1010(a)(i)(B)(ii) which states “A single and original work of art that is not a portrait, photograph, or likeness of an individual…” There is also an exemption at 4-75-1010(a)(i)(C) which states, “Solely to depict the individual’s role as a member of the public if the individual is not named or otherwise singled out…” This could be interpreted as an exemption for street photography. The wording used in the bill is vague, to be sure. The meaning of the bill will, in all probability, be tested and refined through inevitable court challenges. To be clear, I’m not in favour of this bill. I just don’t think it’s the end of the world that many are making it out to be.

Is it possible that other states will attempt to enact similar types of legislation? Yes. Will those efforts be successful? Only time will tell. But the biggest impediment to unwanted legislation isn’t raising a fuss after the fact. I’m reminded of stories of horses and barn doors. The biggest impediment to this type of undesirable legislation is to not allow the people who have these views into office in the first place.

The full text of the law can be found at the Arkansas State Legislature website.