Arkansas Senate Bill 79

Your freedoms are under direct assault in Arkansas.

"SB-79 would require still and motion photographers to get explicit written consent to include any individual’s likeness—not just celebrities but anyone—in a photograph that is used for virtually any purpose within the state of Arkansas except those uses specifically exempted as Fair Use within the bill.

"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."

A bill well worth opposing, as the ASMP, MPAA, DMLA, NPPA and other photographers' associations are doing. But wouldn't it be nicer if State governments weren't stuffed with dimwits to begin with? I'd better not say any more.

You might want to read this. We should all read it. And yes, it would be so much nicer if we didn't have to.

UPDATE: A reader from Northwest Arkansas, Norm Snyder, writes to say: "What is frightening is that this effort is sincere. If the governor does not veto the bill by tomorrow [3/31/15], it will become law. With respect to the legislation involving permitting the shunning of individuals who are identified as gay by restaurant owners on the basis of the owners' religious beliefs, the governor chose not to sign the bill, rather than veto it, which meant it became law without his signature. Lots of folks need to write letters/e-mails, etc." Please see the Comments section for the rest of Norm's comment.

Mike
(Thanks to C.Rosenthal)

Original contents copyright 2015 by Michael C. Johnston and/or the bylined author. All Rights Reserved. Links in this post may be to our affiliates; sales through affiliate links may benefit this site.

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(To see all the comments, click on the "Comments" link below.)
Featured Comments from:

tex andrews: "The inherent evils of this 'law' are embedded in U.S. law generally at the current time, to wit: In the U.S. federal/state sytem, states get to draw up all manner of idiotic statutes without really considering the national or interstate commerce ramifications of the 'law'—there's nothing stopping them but their governors or attorney generals (in some cases).

"That #1 bit wouldn't be such a problem, IF U.S. tort law wasn't so fouled up. So, yes, this law will be found to be unconstitutional is passed, eventually. But meanwhile, anyone sued under this 'law' is still going to be one the hook for legal expenses, even if eventually exonerated. There's your rub. So, in addition to signing petitions/sending letters, I recommend finding out who sponsored this 'bill' and then to pillory that idiot online and in the media, social or otherwise. Otherwise they'll just try something equally stupid in the future. Ridicule is a powerful tool."

Manuel: "Portugal, my country, lived under a fascist-inspired dictatorship from 1933 to 1974. Yet in 1967 a new Civil Code was promulgated, which project had been drafted by some of the most prominent law teachers of the time. Under portuguese Civil Code's provisions on individual rights, the need for consent - which can be tacitly granted - is the general rule. However, one is entitled to photograph people in public places without the latter's consent; the unnecessity of consent also applies when photographing celebrities and, in general, whenever the photograph serves 'cultural,' didactic or scientific purposes—as long as no offence to the individual rights of the 'portrayed' person results from the picture.

"Comparing this statute to the Arkansas Senate Bill 79 without knowing their respective provenance, you would be forgiven to misguess which one was produced under a fascist-inspired dictatorship."

Gato: "As a photographer I am convinced it is time for some law on this. Maybe the Arkansas law does not get it right, but it is time to protect the individual's privacy. In an age where anyone who slips on the ice can be subject to worldwide humiliation and ridicule in a matter of hours we need to set some limits."

Ben Wilkes replies to Gato: "Nope. Sorry if you are humiliated, but the subject of a photo doesn't get to decide what's newsworthy. Even more so if they are merely a bystander who is captured along with an event. You should be able to control the commercial use of your likeness, and prevent defamation (or be compensated) if the photo is manipulated to show something untrue. But other than that, prior restraint is much more dangerous than humiliation."

Mike adds: Here's a humorous take on why we don't allow the subjects of pictures to approve them:

<p><iframe width="470" height="264" src="https://www.youtube.com/embed/Cq87VgIfat4" frameborder="0" allowfullscreen></iframe>

Jim Simmons: "I have some skin in this game. I have reached an agreement with the Shiloh Museum of Ozark History in Springdale, Arkansas, for an exhibition of a set of photographs I shot in Arkansas in the mid-1970s. The subjects were people living deep in the backwoods of the Ozarks. Some were college graduates who'd chosen to retreat from modern society, and some were folks who'd lived away from society for generations.

"An initial element of the exhibition discussions with the museum was around the fact that I did not have releases from my subjects, and they were at first reluctant to use any photos with recognizable people. Once I explained to them that part of my technique of engagement with people was that although I introduced myself and my intent (a photographic record of people living deep deep in the Ozarks), I did not require people to tell me who they were or treat them as I might have if I were a journalist, gathering names and facts. This would have made some people nervous or suspicious, and would have limited their willingness to engage with me. Every photo taken had tacit permission. I think the museum was concerned with both lawsuits and with respect for the individuals. Eventually, they recognized that the images themselves demonstrated that respect, and they decided to brave the legal aspects and organize the show as planned.

"I am concerned that if this law passes, they may reconsider their position. Which would be a real loss for the community, as this collection is truly unlike what other photographers were doing at the time. The photographs are currently sitting in boxes with me in New Zealand, and they really need to be part of the public record in Arkansas."

[Some of the Ozarks photographs can be seen on Jim's website. Ed.]

Jim Simmons, End of the Road

Comments

[Dennis Huteson]

I'm sure that whoever proposed this legislation did it for the best of reasons, but a little thought as to the international ramifications...for example... might have been useful. Here in Blighty we're pretty well sorted, though oft misunderstood.

[Robert Gordon]

Yet one more group of idjuts aspiring to the 2015 Greatest Mind of the 12th Century Award.

These people spread like political Ebola.

[Robert Gordon]

I have been to Paris seven times since this ordinance went into effect and have never been confronted by someone objecting to me taking their photo.

http://lens.blogs.nytimes.com/2013/04/23/paris-city-of-rights/

[emptyspaces]

Looking forward to "State or Arkansas v. Internet" sometime soon. This will be impossible to enforce, so we should all ignore it. Until this blows over, no more football game selfies!

[Yonatan Katznelson]

``But wouldn't it be nicer if State governments weren't stuffed with dimwits to begin with? I'd better not say any more.''

Can I?

It would be nicer indeed. Unfortunately, it seems that government at all levels is attracting more and more of them each year. As the proverbial milk crates become bigger and easier to climb onto, more and more people are exercising their right to speak what little of their mind there is, and then band together to elect their brethren to office.

(Feel free to not post this if you find it to impolitic, I am just having my Monday morning vent.)

[Art McLaughlin]

There is no underestimating the power of stupidly when it comes to our legislators these day.

[Ken]

If you live in another state (or country), far from Arkansas, and post vacation photos, e.g. shot while traveling abroad, how would Arkansas even obtain personal jurisdiction to bring you into its courts? Short answer, it can't unless you travel to or through Arkansas, move there, or engage in a business transaction with someone in the state.

Sure, make every effort to stop stupid bills like this one. But let's also be realistic, this is probably not going to impact anyone who is not in or doesn't plan to travel to Arkansas and doesn't conduct business with its residents, except perhaps by inspiring similar hare-brained laws elsewhere.

[Kenneth Wajda]

Great, that means no more government surveillance cameras taking my picture. Excellent!

[Willam Lewis]

My guess is that, as a friend of mine notes and agree with, it’s an attempt to protect law enforcement from being photographed or taped without permission - without explicitly being set up as a law for that purpose. Can't let them be held accountable for their actions after all...

[Dogman]

We continue to elect them. Therefore we deserve them.

[An ancient joke: Tonto and the Lone Ranger are surrounded by hostile indians. The Lone Ranger says, "What are we going to do, Tonto?" And Tonto says, "What do you mean 'we,' paleface?"

Thus: what do you mean 'we'? --Mike]

[Jamie Pillers]

I guess this means Google Street View will have to erase from its servers anything made in Arkansas. And I assume all those TV news reports will have to edit the footage to include little black bars over everyone's faces.

Way to go, Arkansas. :-P

[Frank Petronio]

The best government is the least government....

[You should live in rural Afghanistan, Frank. --Mike]

[Norm Snyder]

As a resident of Northwest Arkansas [in an effort to differentiate it from the rest of the State], and with photography having been my avocation for all my adult life and a good part of my adolescence, I can only shake my head at the wisdom of our elected representatives. This outdoes some of the recent legislation in Texas and Wisconsin and yes, it does govern images that are visible in Arkansas, in any form, and not just those shot within the state. Thus, as I read and understand it, were an Italian "street photographer" to shoot a photo of a pedestrian while on a visit to, say, Prague and post it on a website visible in Arkansas, there would need to be a release signed by the pedestrian. The pedestrian could sue the photographer, filing the case in Arkansas.

This is, it is worth noting, a piece of legislation from a state that also is in the process of allowing restaurants to refuse to serve individuals they believe might have alternate sexuality and has also been working on legislation to outlaw the importation of California wines to Arkansas. Their rationale for this last little bit is that California doesn't want to import chickens from Arkansas, insisting that they are being killed inhumanely.

I can only wonder. What can our legislature do to protect its citizens from inadvertently violating the privacy of others? Block certain elements of the Internet, much as has done the Chinese government for their citizens?

What is frightening is that this effort is sincere. If the governor does not veto the bill by tomorrow [3/31/15], it will become law. With respect to the legislation involving permitting the shunning of individuals who are identified as gay by restaurant owners on the basis of the owners' religious beliefs, the governor chose not to sign the bill, rather than veto it, which meant it became law without his signature. Lots of folks need to write letters/e-mails, etc.

[Tony Rowlett]

If I need permission in Arkansas to trap your light rays in my camera in public, then I don't want your damn light rays, and I'll thank you to keep them off of me or I'll sue!

[John]

Isn't this likely to be mainly a problem for folks and entities (including online news and media sources) that are based in Arkansas itself? How are the local newspapers and magazines (I assume there must still be some) going to publish any pictures with people in them at all? Blanking out their faces? And what about the dogs and kittens - don't they have rights too?

[Rick in CO]

They should realize the potential effect on tourism in Arkansas. Is there tourism in Arkansas?

[Martin]

I haven't deciphered the Bill, only read the headlines the same as most other people.

Does this new law mean that all historical photographs containing a human face, held by any museum anywhere and raising money for them, via postcards or calendars etc, must now be defaced - just in case an Arkansas resident believes they are a legal descendant of the un-photo-released person depicted, and complains?

One might almost think that the Bill was written and supported by Arkansas lawyers as some sort of job-creation scheme...

Now we can realise it was rather prescient of Daguerre's shoe-shine guy to move during that famous exposure. He was just avoiding later embarrassment for the descendants of Daguerre, at the hands of the Arkansas legal profession.

[Stephane]

That new law in Arkansas puts it on about equal footage with most European countries.

Why so many American politicians insist on transforming the US into a Europe clone when it is obvious for us Europeans that our system does not work at all? It baffles me.

[Keicards]

Someone should make sure that some phrase such as 'Arkansas does not welcome photographers, and that includes those with smartphones' is included in all travel advertising for the state.

[Adrian Malloch]

Also in reply to Gato:
The idea of expecting privacy in a public place is an oxymoron.

In my home country New Zealand, the legal test for private place is: anywhere that you can have a reasonable expectation of privacy.

So, if you stand naked in your front window and a photographer snaps your 'private bits' visible from the public footpath, then chances are YOU are more likely to be charged for public indecency, than they are for invasion of privacy.
But, if the photographer had to use a stepladder to see and photograph over the high fence then they are invading your privacy.

[NancyP]

You know what this is about? Silencing independent journalism, specifically, going after internet alt.journalists. The bill allows seizure of not only the image (?!? do they understand how the Internet works?) but anything used to make the image, which to my mind would allow seizure of the entire cameras/lenses/etc kit and the car of the photographer. The state couldn't get away with intimidating the New York Times (though another Southern state did try to sue the Times during the Civil Rights era). But nowadays news is all done by freelancers, who can be put out of business very easily because they don't have organizations with lawyers.

Beneficiaries would include the police, various pig factory farm owners, the owners of polluting industries, and so on. "Broadcast journalism" is exempted, and you can bet that won't include internet journalism and may not include printed news media (nowhere in the bill does it exempt printed news media).

Some lobbyist or lobbyists bought this bill. This doesn't sound like anything the citizens would be worried about.

AR is a lovely state, at least the Ozarks part, but it is trying to live up to one of the many meanings of its tourism motto "The Natural State" - as in "natural", colloquial term for a developmentally delayed (MR) person.

[Alex Vesey]

Thinking of the implications, does this mean that the public cannot take and post photos of the governor in a public space?

It seem to me that it would be rather difficult for the average citiizen to get permission for this. But, perhaps "hoisting them on their own petard" is a way to combat the lunacy of the law: get many photographers to take pics of state officials at state functions (county fairs, opening ceremonies, etc.), and then bombard the state offices with requests to post them.

On a related note, just wait until the legal suits between citizens start to fly, especially now that everyone shoots and shares without a second thought. Lawyers may love it, but the Arkansas court system could be glutted with cases.

[Jim]

This is indicative od the work of ALEC, the American Legislative Exchange Council, the conservative organization funded by big business and far-right whackos who are using Republican-dominated state legislatures to pass bills designed to promote draconian social and pro-business rules.
Among social issues, like the anti-gay law from Indiana in the news this week, Cable TV companies have written laws to ban community broadband in 19 states to protect their monopolies.
Here is more on ALEC: http://www.alecexposed.org/wiki/ALEC_Exposed

[Dan]

The toothbrush was invented in Arkansas. Anywhere else and it would be called a Teethbrush.

What do you get with 32 Arkies in one room? A full set of teeth.

[soulnibbler]

If you want a real strange trip into the unknown check out Austria's laws about approval. In Austria permission must be granted for a photo to be taken even in public places. What's weird is that this is not the result of legislation at all! This is due to a particularly annoyed lawyer suing a building owner for taking a picture "for fun" in the aforementioned building. The lawyer threatened to sue, and the case was taken to one of the Austrian supreme courts, where the court decided to set precedent according to GERMAN LAWs in an interpretation supporting the lawyer's case thereby making the taking of photos of strangers without explicit permission illegal.
This was a few years ago and there have been numerous flickr and other online discussions of the repercussions of said law to whit the interpretation has been: "Street photography is not illegal, but if you meet a wannabe lawyer then you should delete the photo because the cops don't want to enforce the ruling".

Which to me is the real problem with Arkansas law, It is unenforceable except though the civil courts.

[Lance Evingson]

The illusion of privacy while The State continues its privacy assault unabated.
A growing list of states to be boycotted....

[Robert Roaldi]

In the last few decades, our culture has gone out of its way to minimize the importance of government, to ridicule it, to "get it out of our way", use whatever cliché you feel comfortable with. Some commenters even choose to view this development as another sign of how pointless government is. This is exactly wrong. If we took our self-ruling structures more seriously, this kind of nonsense might not happen.

It's not government that is bad, it's bad government that is bad. Without government oversight, there would be no free market, there would be no freedom, there would be no society as we've come to know it. It's alarming how people have come to believe the contrary.

[Wayne]

A possible explanation for this new legislation in Arkansas:

1. Legislative bodies generally comprise a large number of lawyers. Lawyers make money off of laws in the same sense that farmers make money off of crops.
2. While not technically voyeurism, "street photography" sometimes approaches it. Voyeurism is defined as perverse.
3. While some refuse to recognize it, "Rights" carry with them, responsibilities.
4. When something, e.g. street photography, becomes "vogue" in the USA, it is only a matter of time before the jerks are attracted to it.
5. Jerks shun responsibility.
6. Irresponsible behavior is the very root of law.

Once digital imaging and the internet made participation in "street photography" easy and popular, it was only a matter of time until Law showed up on the scene.

The above is not an endorsement, or condemnation, of the Arkansas law. I don't know what to think.....But I am not surprised.

[T Bannor]

The U.S. Supreme Court has already ruled on this sort of thing, finding that there is no expectation of privacy when one is in a public space, so it's doubtful the Arkansas bill will survive a challenge in federal court. And as much as some states, many of them former members of the Rebel Confederacy hate it, federal supremacy is in the U.S. Constitution.

[Sam Grover]

The Governor has vetoed it: http://governor.arkansas.gov/press-releases/detail/governor-hutchinsons-veto-letter-to-senate-concerning-sb79

[Gordon Lewis]

>>Once digital imaging and the internet made participation in "street photography" easy and popular, it was only a matter of time until Law showed up on the scene.<<

As someone who has been active in street photography for over 40 years, I am aware that it is experiencing a resurgence. That said, it's not as if there are now hoards of street photographers roaming the streets in search of fresh prey and harassing innocent citizens. People on public streets ARE being constantly photographed and videotaped, but by private and government surveillance cameras, all perfectly legal. Just because you're not always aware of it doesn't mean it's not happening.

[Wayne]

@Gordon Lewis,

I have seen and admire your work. I have not yet seen an example of the sort of defamatory work, e.g. Walmart Shoppers, under your name. The Walmart photos are the type of thing that can/do get lumped into the public's perception of what "street photography" is. We can hold something to be pure and artistic, but once it becomes trendy, all bets are off....Despite what we may think.