Publicity rights law strikes a balance

Editor’s note: Betsy Broyles Arnold is the CEO of the Broyles Foundation, a nonprofit that helps educate Alzheimer’s caregivers. Opinions, commentary and other essays posted in this space are wholly the view of the author(s). They may not represent the opinion of the owners of Talk Business & Politics. 

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Publicity rights were a foreign concept to me two years ago. Now, as the legislature meets again to vote for publicity rights in the state of Arkansas, the term has become well-known to my family. As the session approaches, I hope that you will join me in supporting the publicity rights bill to allow individuals in Arkansas to protect their image from being commercialized without permission.

After the retirement of my father, Frank Broyles, from the University of Arkansas, my family was approached by a number of businesses that wanted my father to support their products or services. Some of them had gone so far as to make products with my father’s signature already applied. My family was surprised by this and we sought legal counsel on how best to protect my father from having his name or signature used without his permission. This began the Broyles family education in the world of publicity rights.

We were surprised to learn that publicity rights – or the right to control the commercial exploitation of your name, likeness, voice, signature, and image – aren’t protected in every state and have not been addressed by the legislature in Arkansas.

That means if someone wanted to create Broyles Beer, they’d need permission from my dad. But this right isn’t always one that is inherited. While I might inherit my dad’s red sports coat, I might not be able to stop a business from selling a beer can with a white-haired gentleman wearing a red sports coat on it.

This was deeply troubling to me and I hope it would be troubling to anyone reading this. But this very thing happened with Elvis and it could happen with Prince, as Minnesota is in the same process as Arkansas trying to protect the rights of the surviving family from seeing their loved one promoting a product without their approval.

The legislation that is being proposed is part of a joint effort with the Arkansas Professional Photographers Association, the Motion Picture Association of America, the Entertainment Software Association, Google and Facebook. While we wish greatly to protect our father’s legacy, we are at the same time understanding that the arts and free expression must be protected.

We want to make sure that a newspaper to be able to print his picture for a news story or a TV movie could be made about his storied coaching career. As a result of this effort, we have a number of groups supporting our efforts, including those named above.

We have accomplished that goal in this bill by ensuring that a parent’s image cannot be used in association with or as endorsement of merchandise, a product or service without approval while allowing the image or name of a person to be freely used for information, education or entertainment purposes without the fear of litigation.

If signed into law by Gov. Asa Hutchinson, Arkansas will join the majority of states with right-of-publicity statutes that strike the right balance of protecting the rights of individuals and ensuring that story-telling ranging from newspaper writing and photos to motion pictures are not hampered by lawsuits.