Publicity Rights Bill Lost Clarity (OPINION)

Arkansas Senate Bill 79, the so-called “Broyles Bill” or the “Rights of Publicity Bill,” was legislation intended to protect the right of an individual to prevent the unauthorized commercialization of his or her image, voice or signature.

Unfortunately, as a result of numerous amendments and misinformation regarding the scope of the bill, its clarity and purpose were lost, and Gov. Asa Hutchinson vetoed the bill on March 31.

I proposed SB79 as part of my representation of the family of former University of Arkansas coach and athletic director Frank Broyles.

Sen. Jon Woods, R-Springdale, and Rep. Greg Leding, D-Fayetteville, worked diligently to support the family member’s efforts to protect their father’s image, as well as the image of other residents in the state of Arkansas, and the bill received overwhelming support in the Arkansas Senate and House.

In the time since Coach Broyles retired from the Razorback Foundation, he and his family have seen a number of businesses using his image or name to promote themselves.

Some businesses sought an endorsement while others did not. Some of these businesses used the coach’s name or image in a benign manner; others chose to use his name in an extremely negative fashion. This use of the name and reputation of Coach Broyles and the nature of this use concerned his children, and we sought to ensure that Coach Broyles’ heirs could prevent people from commercializing on his name or likeness or from using his name or image in these malignant manners.

To the family of Coach Broyles, this is a personal issue. His children want to protect the reputation that this great man built over 57 years. They believe strongly that no one should sell a product using their father’s image to promote something that he found repugnant.

The ability to protect your rights of publicity — your name, likeness, image, voice or signature — from commercial use exists in roughly 20 other states in the country through similar statutes to SB79 or through case law. SB79 was, in large part, based upon these statutes, some of which are decades old.

It has become more challenging in the past few years to pass publicity rights bills, as the competing interests of the individual to control his or her image are overwhelmed by third-party interests.

SB79 was amended at least eight times as many local, national and international companies approached us to preserve their interests. Most of these parties became active supporters of the bill. However, in the end, the last amendments — and the ones that provided the most strength for the bill — drew the most ire.

The rights of publicity are always balanced by the First Amendment. Books, movies and the news are necessary parts of our world and the First Amendment prevents the rights of publicity from impeding on those interests.

However, striking a balance between the First Amendment protections and the rights of publicity can be daunting in legislation, especially since the courts are still striking this balance. Changes to SB79 sought to afford protections to the arts through broad express exemptions, while still providing the limitations of the First Amendment to these exemptions.

The changes that proposed this balance drew a mixed reaction, and, afterward, a lot of misinformation about the bill was presented.

News reporters were told the bill wouldn’t allow reporting using names, but there were exemptions in SB79 for news and newsworthy stories.

The day before the veto, I spoke to dozens of photographers concerned about the bill’s supposed ban on street photography, but the bill actually had a separate provision to provide an exemption for street photography or crowd photography.

However, the misinformation surrounding the bill and the voices of the bill’s opposition had muddied the waters.

Ultimately, the clarity sought by SB79 was obscured, and it led to the veto.

While it is likely an Arkansas court will recognize the right to prevent the commercialization of a person’s voice, likeness, image or signature, the rights of an individual’s heirs in such a case is much less clear.

Only time will tell if Arkansas courts or the legislature will provide clarity in the future. 

Meredith Lowry is a partner with Smith Hurst PLC in Fayetteville. Lowry focuses her practice in the field of intellectual property. She can be reached at 479-301-2444 or by email at [email protected].