MEMORANDUM IN OPPOSITION

May 13, 2016

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SF3609

The Digital Media Licensing Association (DMLA), American Society of Media Photographers (ASMP),National Press Photographers Association (NPPA) and Professional Photographers of America (PPA) strongly oppose SF 3609 as currently drafted. This right of publicity bill is unnecessarily broad, vague, and would grant a retroactive and descendible right of publicity to all deceased residents of Minnesota looking back 50 years, regardless of whether an individual’s identity had commercial value or not. This proposed legislation would cause serious economic impact to the image licensing industry in Minnesota by unconstitutionally depriving photographers and film owners the right to exploit their property and copyright interests in their still and motion images.

DMLA and the other associations represent the interests of many thousands of still and motion photographers and the copyrights of millions of visual works. These members comprise the visual imagery community that are responsible for creating, supplying, distributing and licensing many of the images you find in Minnesota, whether in magazines, newspapers, textbooks, documentary films, television and cable programming, advertisements, websites , as well as all forms of traditional and newly developing digital media. These residents rely on their constitutional right under the federal Copyright Act to license images they create in order to earn a living and pay their taxes.

While we understand the Prince families’ desire to prevent unlawful commercial exploitation of his likeness, any bill must be carefully crafted with First Amendment protections to avoid unintended consequences that would inadvertently call into question the long established business practice of licensing and selling visual images to the media and to the public.

Significantly, there is no exemption for the distribution and licensing of a photograph (or video) depicting an individual for any purpose that is itself non-commercial and protected by the First Amendment. For example, the bill does not expressly permit photographers and their representatives to license photographs and videos to the media, a vital service without which most newspapers and other media entities would not have access to the images used in informing the public as to newsworthy and cultural events. Photographers and image aggregators should not have to face expensive litigation to determine the scope of the legislation as to whether the display and licensing of images is a prohibited “service” under the act which would require consent. The burden of obtaining consent to merely to display and license images is not merely impracticable, it is in most instances impossible, when considering how quickly images of public interest are distributed to the public and would result in censorship of newsworthy images. The bill has no requirement for registry of owners of these rights, making permissions even more impossible.

We would ask for an exemption, similar to one included in a recently proposed Arkansas bill, to protect the lawful business of licensing and selling visual imagery. The immunity provision should include a person practicing the profession of photography or his or her representative to distribute photographs for license and sale, or other transfer to third parties, and the promotion and advertising of such activities.

The bill as proposed does not protect important expressive works such as photographs. The fair use exception is based on outdated 1980’s California language rooted in old media and has resulted in expensive litigation for the image industry. In particular, the phrase “single work of original art” is constitutionally too narrow as most expressive works, such as photographs which are sold in multiples (editions). Photographs are entitled to full First Amendment protection as expressive works. Members of the various associations are entitled to sell photographs as art prints and audio visual works as expressive works, just as one would be entitled to sell a play, book or documentary film. Any list of exempt expressive works should expressly include photographs and visual works.

Finally, by identifying a narrow list of exemptions, the proposed legislation will stifle new and innovative ways of communicating with images. With lines between traditional media and new media blurring, it is important that strict rules are crafted using today’s media language. Any ambiguity will result in an effort to obtain unnecessary consents which will be fraught with difficulty, unreasonable expense and delay.

With the speed in which news, educational, entertainment and other expressive products are created, to introduce new roadblocks for the use of images depicting people is unjustified and raises serious first amendment considerations.

For the above stated reasons, the members of DMLA, ASMP, NPPA and PPA strongly oppose SF 3609 as written and urge you not to pass it in its current form.

 

i DMLA membership includes 150+ companies worldwide that are engaged in the archiving and distribution of images, footage, animation, and illustrations for purposes of licensing, such as Getty Images, and other libraries, with users and represented visual artist in Minnesota; American Society of Media Photographers;(ASMP), is an association of more than 7000 professional photographers, with members located in Minnesota; Professional Photographers of America (“PPA”) the world’s oldest and largest association for professional with a membership reach of approximately 50,000 professional photographers including members in Minnesota; and the National Press Photographers of America (NPPA), is the Voice of Visual Journalists with approximately 6,000 members that include still and television photographers, editors, students, and representatives of businesses serving the visual journalism community, also with members in Minnesota.