Arkansas Resurrects Right of Publicity Bill
The Arkansas legislature has reintroduced a right of publicity bill in the state after last year's bill was vetoed by its governor. Governor Asa Hutchinson was concerned about the bill's limits on free speech. Arkansas to date has only recognized a common law right of privacy and the tort of appropriation, tracking the Restatement (Second) of Torts. The state has never directly considered whether such rights might survive death. Frank Broyles and his legacy is the driving force behind the law. Broyles, a renowned football coach, was for many years the celebrated athletic director of the University of Arkansas. He is currently 91and there is momentum to get post-mortem rights passed in the state before he dies. The proposed act is named for him -- The Frank Broyles Publicity Rights Protection Act of 2016.
The proposed House and Senate Bills seek to "protect the names, voices, signatures, photographs, and likenesses" of Arkansas citizens from "exploitation and unauthorized commercial use" without consent. The commercial use requirement excludes uses for data collection, processing and reporting. The right is designated a "freely transferable" and descendible property right. The right survives after death for 50 years, but a successor in interest must register a claim prior to collecting damages. The rights are limited to identity-holders who are (or were at the time of death) residents or domiciled in the state.
The bill exempts uses in news, public affairs, sports broadcasts, and political campaigns. It also exempts uses in a variety of expressive works, including plays, books, magazines, muscial works, art works, audio-visual works, and both fictional and nonfictional entertainment. The bill also exempts institutions of "higher education." These exemptions are only slightly different from those that appeared in last year's version that was vetoed by the Governor-- making it hard to see exactly how this is more speech protective. And to be clear -- it still restricts speech about dead people for 50 years after their death.
The bill preempts the common law in the state. The bill also explicitly states that the right is not to be treated as "intellectual property" for purposes of the Communications Decency Act Section 230. Both the senate and house versions appear identical.
The bill does not address the taxation concerns that I have raised elsewhere with regard to the rushed Minnesota consideration of post-mortem publicity rights for Prince. Minnesota has thankfully slowed down the process and held things over for further debate. Hopefully, Arkansas will give this issue the robust debate it deserves rather than rushing things through with a rubber-stamp. That may be unlikely though as the Governor has already said he will sign this version of the bill if it passes.
THE RIGHT OF PUBLICITY: Privacy Reimagined for a Public World
This book from Harvard University Press by Professor Jennifer Rothman traces the history and development of the right of publicity and its current collision course with individual liberty, free speech and copyright law.