Senate backs likeness-rights bill's veto

Gov. Asa Hutchinson on Tuesday vetoed a bill championed by family members of famed University of Arkansas football Coach and Athletic Director Frank Broyles.

The Republican governor vetoed Senate Bill 79 by state Sen. Jon Woods, R-Springdale, which would have strengthened an individual's rights to his own image and prohibited the unauthorized commercial use of someone's voice, signature or likeness for financial gain. It was called the Personal Rights Protection Act.

Hutchinson, who is an attorney, said he rejected the bill because "in its current form it is overbroad, vague and will have the effect of restricting free speech.

"While I respect Sen. Woods' intent to protect the names, voices, signatures, photographs and likenesses of Arkansas citizens, such as the Broyles family, from exploitation and unauthorized commercial use, I cannot support SB79 in its current form," the governor wrote in his two-page veto letter to the Senate.

Woods subsequently asked the state Senate to override Hutchinson's veto, saying he's disappointed and that "I would like to send a message to the governor, 'We are not an extension of the second floor. We are the Senate.'"

The governor's office is on the second floor of the state Capitol and the Senate chambers are on the third floor.

In a 14-12 vote, the Senate balked at Woods' attempt to override Hutchinson's first veto as governor since he was sworn in Jan. 13. Ten Republicans and two Democrats voted to override the veto; eight Republicans and six Democrats voted against overriding it.

The Senate passed the bill by a vote of 25-3 on March 24.

Eighteen votes are required in the 34-member Senate to override a governor's veto. Overriding a veto would take 51 votes in the 100-member House of Representatives.

Afterward, Senate President Jonathan Dismang, R-Searcy, said Woods was "very passionate about the issue, and evidently some folks had dictated the language in that bill and he wasn't willing to make adjustments to that language."

He said he didn't vote on whether to override the veto because he had voted for the bill previously and he didn't want to vote against a colleague. "At the same time, I didn't agree with his statements in particular about being an extension of the second floor."

Dismang's predecessor as the Senate leader -- Russellville Republican Michael Lamoureux -- is Hutchinson's chief of staff.

Woods has said he began work on SB79 after he was approached by family members of Broyles, who said they were concerned about people using Broyles' likeness on unauthorized merchandise and goods.

SB79 would expand protections of personal rights and prohibit a commercial enterprise from using a person or celebrity for publicity without obtaining permission from that person or the person's estate.

According to the bill's House sponsor, state Rep. Greg Leding, D-Fayetteville, there are 27 states with some sort of "right to publicity" law on the books, and a person has a right to the image, public or not, that he has cultivated.

Opponents of the bill argued that the bill goes too far and similar protections are already vested in common law.

The bill includes a "Fair Use" section, which gives exceptions to the law to newspapers, magazines, and other news-related or creative outlets.

In his veto letter, Hutchinson said SB79 grants a property right in the use of an individual's name, voice, signature, photograph or likeness and makes this right freely transferable and assignable.

The bill provides that this right continues through the individual's lifetime and up to 50 years after the individual's death, the governor wrote.

The intent of the bill is to protect names, voices, signatures, photographs and likenesses of the citizens of the state from exploitation and unauthorized use without the citizen's consent, Hutchinson said.

"However, the bill as drafted would extend protection beyond the stated intent of the bill, unnecessarily restrict free expression and may result in unnecessary litigation in Arkansas," he said.

While SB79 defines commercial use to include any use for advertising, fundraising or obtaining money, goods or services, the language may include speech beyond traditional commercial speech, including expressive speech produced for a profit, Hutchinson said.

"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," he wrote.

SB79 explicitly exempts news and promotion and advertising for a political campaign, but "a work of a political or newsworthy value" is only exempt to the extent it is protected by the First Amendment, the governor said.

"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," Hutchinson said.

The governor said he's received scores of letters from professional and amateur photographers in Arkansas who raise legitimate concerns about the bill and request that it be amended "so that they are not subject to substantial financial burdens in the conduct of their small businesses around the state."

Woods, 37, said he has known Asa Hutchinson for nearly two decades, but he's "insulted with his actions [Wednesday].

Woods said he "tried all weekend to amend the bill and I was told the governor would not veto if I took one line out of the bill."

He said a barrage of coordinated attacks had helped derail the bill after he inserted language suggested by the NFL Players Association.

"The governor was lobbied by big business, and they convinced him to veto the bill," Woods said.

Officials for the Arkansas Press Association told their members Tuesday that Hutchinson vetoed the bill at the the urging of the Motion Picture Association of America, the Arkansas Press Association and many other local, regional and national organizations.

"Many fear [the bill] would compromise the media's ability to cover news and sports and editorialize and could lead to protracted litigation. The opposing groups had little opportunity to defend against SB79 because the troubling language was inserted at the last minute just before the bill passed the House," said Tom Larimer and Tres Williams.

Broyles could not be reached for comment Tuesday.

Kevin Trainor, director of sports information at the University of Arkansas at Fayetteville said "coach himself has not really been tracking on this or has been involved. It's mostly been his kids."

Attempts to reach other members of the Broyles family were not successful Tuesday.

Information for this report was contributed by Bill Bowden of the Arkansas Democrat-Gazette.

Metro on 04/01/2015

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