The Digital Media Licensing Association (DMLA), American Society of Media Photographers (ASMP),National Press Photographers Association (NPPA) and Professional Photographers of America (PPA)Â strongly oppose SF 3609 as currently drafted. This right of publicity bill is unnecessarily broad, vague, andÂ would grant a retroactive and descendible right of publicity to all deceased residents of Minnesota lookingÂ back 50 years, regardless of whether an individualâs identity had commercial value or not. This proposedÂ legislation would cause serious economic impact to the image licensing industry in Minnesota byÂ unconstitutionally depriving photographers and film owners the right to exploit their property andÂ copyright interests in their still and motion images.
DMLA and the other associations represent the interests of many thousands of still and motionÂ photographers and the copyrights of millions of visual works. These members comprise the visual imageryÂ community that are responsible for creating, supplying, distributing and licensing many of the images youÂ find in Minnesota, whether in magazines, newspapers, textbooks, documentary films, television and cableÂ programming, advertisements, websites , as well as all forms of traditional and newly developing digitalÂ media. These residents rely on their constitutional right under the federal Copyright Act to license imagesÂ they create in order to earn a living and pay their taxes.
While we understand the Prince familiesâ desire to prevent unlawful commercial exploitation of hisÂ likeness, any bill must be carefully crafted with First Amendment protections to avoid unintendedÂ consequences that would inadvertently call into question the long established business practice ofÂ 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)Â depicting an individual for any purpose that is itself non-commercial and protected by the FirstÂ Amendment. For example, the bill does not expressly permit photographers and their representatives toÂ license photographs and videos to the media, a vital service without which most newspapers and otherÂ media entities would not have access to the images used in informing the public as to newsworthy andÂ cultural events. Photographers and image aggregators should not have to face expensive litigation toÂ determine the scope of the legislation as to whether the display and licensing of images is a prohibitedÂ âserviceâ under the act which would require consent. The burden of obtaining consent to merely to displayÂ and license images is not merely impracticable, it is in most instances impossible, when considering howÂ quickly images of public interest are distributed to the public and would result in censorship ofÂ newsworthy images. The bill has no requirement for registry of owners of these rights, making permissionsÂ even more impossible.
We would ask for an exemption, similar to one included in a recently proposed Arkansas bill, to protectÂ the lawful business of licensing and selling visual imagery. The immunity provision should include a personÂ practicing the profession of photography or his or her representative to distribute photographs forÂ 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 useÂ exception is based on outdated 1980âs California language rooted in old media and has resulted inÂ expensive litigation for the image industry. In particular, the phrase âsingle work of original artâ isÂ constitutionally too narrow as most expressive works, such as photographs which are sold in multiplesÂ (editions). Photographs are entitled to full First Amendment protection as expressive works. Members ofÂ the various associations are entitled to sell photographs as art prints and audio visual works as expressiveÂ works, just as one would be entitled to sell a play, book or documentary film. Any list of exempt expressiveÂ works should expressly include photographs and visual works.
Finally, by identifying a narrow list of exemptions, the proposed legislation will stifle new and innovativeÂ ways of communicating with images. With lines between traditional media and new media blurring, it isÂ important that strict rules are crafted using todayâs media language. Any ambiguity will result in an effortÂ 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, toÂ introduce new roadblocks for the use of images depicting people is unjustified and raises serious firstÂ amendment considerations.
For the above stated reasons, the members of DMLA, ASMP, NPPA and PPA strongly oppose SF 3609 asÂ 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 ofÂ images, footage, animation, and illustrations for purposes of licensing, such as Getty Images, and other libraries,Â with users and represented visual artist in Minnesota; American Society of Media Photographers;(ASMP), is anÂ association of more than 7000 professional photographers, with members located in Minnesota; ProfessionalÂ Photographers of America (âPPAâ) the worldâs oldest and largest association for professional with a membershipÂ reach of approximately 50,000 professional photographers including members in Minnesota; and the NationalÂ Press Photographers of America (NPPA), is the Voice of Visual Journalists with approximately 6,000 members thatÂ include still and television photographers, editors, students, and representatives of businesses serving the visualÂ journalism community, also with members in Minnesota.