The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Gov. Asa Hutchinson's veto message strikes me as quite right:
SB79 grants a property right in the use of an individual's name, voice, signature, photograph or likeness and makes this right freely transferable, assignable, and descendible … up to fifty (50) years after the individual's death….
SB79 defines "commercial use" to include any use for advertising, fundraising or "obtaining money, goods or services." While the intent is to protect citizens of Arkansas from unauthorized commercial speech, the definition of "commercial use" to include any use for "obtaining money, goods or services" is too broad and vague. This language may include speech beyond traditional commercial speech, including expressive speech produced for a profit. This would result in Arkansas having one of the broadest Rights of Publicity statutes in the country and making Arkansas the forum of choice for many litigants.
Additionally, while SB79 provides clear and explicit exemptions for certain types of noncommercial speech including news, public affairs, sports broadcasts and advertising for a political campaign, SB79 fails to extend an exemption to other forms of noncommercial speech. Instead, SB79 provides that certain expressive works such as plays, books, magazines, newspapers, audiovisual work, and original works of art are only exempt to the extent they are protected by the First Amendment. I believe the absence of a clear exemption for these types of expressive works will result in unnecessary litigation in Arkansas courts and will suppress Arkansans who engage in artistic expression from photography to art work.
Moreover, the bill includes inconsistent language that makes it unclear whether a type of speech is completely exempt or is only exempt to the extent it is protected by the First Amendment. For example, SB79 explicitly exempts news and the promotion and advertising for a political campaign. However, a "work of a political or newsworthy value" is only exempt to the extent it is protected by the First Amendment. This ambiguity in SB79, and the lack of clear exemptions for certain types of expressive works, may have the effect of restricting and chilling constitutionally protected speech.
Note that, while the law provided a seemingly broad "fair use" exception for uses of people's names and likenesses in books, movies, and the like, this exception itself had an exception (as the governor noted) for any "use [that] is not protected by the First Amendment." That could well be interpreted to require case-by-case decisions on whether a particular use was protected by the First Amendment against a right of publicity claim, or could instead be restricted by the right of publicity consistently with the First Amendment. That's a question on which courts have sharply differed in recent years, and requiring such litigation would have meant a lot of litigation – and a lot of deterrence of speech that should remain protected.
I'm not a fan of the right of publicity at all, at least outside "commercial speech" in the sense of commercial advertising; see this article for more details. But the Arkansas bill struck me as especially weak, and I'm glad that it was vetoed.