Summary
Arkansas Senate Bill 79 would create a right of publicity in an individual’s name, voice, signature, image or likeness. Section 4-75-1010 of the bill includes exceptions to the right for certain non-commercial uses. But within that section, there is a “caveat” that the exception is dependent on whether that use is protected by the First Amendment.
Status
Governor Asa Hutchinson vetoed the bill. The vote to override the veto failed.
Analysis
Though the First Amendment protects non-commercial speech from the right of publicity, most publicity rights laws include a list of exceptions for artistic uses. The list of exception protects media organizations from costly litigation.
Arkansas S.B. 79 includes that list of exceptions, but the list comes with a “caveat” that it is dependent on whether the use is protected by the First Amendment. The caveat means that the list does not actually provide any protection for media organizations, because it requires a court to rule whether the use is protected by the First Amendment.
» Threat of a lawsuit will have a chilling effect on the media.
As a result, media organizations face the threat of costly and time-consuming lawsuits over speech protected by the First Amendment. A noted public figure, unhappy about a portrayal in a book or film, could force a publisher or producer to validate their First Amendment rights in court to distribute it. These lawsuits could take years to decide and cost a lot of money. The threat of costly and prolonged legal battles will lead to self-censorship by producers and distributors of biographies, histories, documentaries and other important social commentaries.
» The chilling effect is compounded by vagueness on who has to prove the right.
One part of S.B. 79 specifically refers to the claimant bearing the burden of proving that the use is protected by the First Amendment. But the “caveat” for artistic use does not refer to any language about who bears the burden, suggesting it is on the defendant (producer or publisher of media).
If the legislature does intend the defendant to bear the burden, the “caveat” would essentially be an affirmative defense. But speech is generally protected by the First Amendment, absent a showing that it is not. The Supreme Court has noted that an affirmative defense causes a chilling effect on producers and publishers of protected speech.
» The “caveat” also treats types of media differently, which is unconstitutional.
The “caveat” applies to some media but not to others, and only to some types of speech. The Supreme Court has made clear that governments cannot place financial burdens on speech based on its content. It has also been skeptical of governments selectively imposing financial penalties on one media but not on another.
History
- On January 20, 2015, the bill was introduced [4] and referred to the Senate Committee on Judiciary. It would create a right of publicity in commercial uses, but there is no explicit exemption for artistic or creative uses.
- On February 2, 2015, the bill was amended [5] to include an exemption for artistic uses.
- On March 4, 2015, the Senate Committee on Judiciary recommended the bill be passed.
- The Arkansas Senate passed the bill, 32-0-2, on March 5, 2015. The bill was sent to the House for consideration and was referred to the House Committee on Judiciary.
- On March 10, 2015, the bill was amended [6] in the House Committee on Judiciary. The changes include adding language that would provide that the exception for artistic use is dependent on whether that use is protected by the First Amendment.
- The House Committee on Judiciary recommended the bill be passed as amended on March 17, 2015. The Arkansas House passed the amended bill, 80-6-14. The bill was sent back to Senate for consideration as amended.
- The bill was re-referred to the Senate Committee on Judiciary, which passed the House version of the bill on March 23, 2015.
- On March 23, 2015, Media Coalition submitted a legal memo [2] to the Arkansas Senate, explaining that the House version of the bill does not fully protect the First Amendment rights of media.
- The Arkansas Senate passed the House version of the bill on March 24, 2015. The bill was sent to the governor for his signature.
- On March 25, 2015, Media Coalition sent a letter to Gov. Asa Hutchinson [1], asking him to veto the bill.
- On March 31, 2015, Gov. Hutchinson vetoed the bill. A motion to override the veto in the Arkansas Senate failed.