The Problem With Photo Contracts
July 10, 2015
Rights grabs suck. I think that you'd be hard pressed to find someone who disagrees. They aren't exactly new, but the internet is buzzing about it since Taylor Swift's open letter to Apple. Her stance on Apple's decision to not pay artists any royalties during the 3-month trial they were offering to customers reached a lot of people—and Apple took note, deciding to change their policy rather quickly. Shortly thereafter, photographer Jason Sheldon responded to Taylor Swift with his own open letter, citing the incredibly restrictive terms of her photography contract.
Most recently, Jarle H. Moe posted this article, and in it, he puts the impetus back on the concert photographer. While he agrees that the rights grabbing contracts are unfair, he also challenges the integrity of media outlets and concert photographers. He points out that concert photography, while certainly artistic, is also photojournalism, and that there should be a degree of integrity. I agree with this statement. One of the best bits from that post?
"Signing a photo contract should be unacceptable, not because it’s disrespecting you as an artist, but because it’s a violation of the ethics you follow as a journalist."
I totally agree. However, I would also argue that one's integrity as an artist shouldn't be any different, really. I think the real problem is much deeper than that, though. I'll get to that later. For now, take a look at this photo.
That is Emily Haines, lead singer for Toronto-based band Metric. I photographed them at Barclays Center when they opened for Imagine Dragons last week. The series of events leading up to showtime was interesting, and confusing. I originally got the confirmation to shoot Imagine Dragons that night. Shortly thereafter, I received an email asking if I was interested in photographing Metric as well. Since I usually photograph the opening acts as well as the headliner, I stated my intention to cover all three acts performing that night. What followed was an email from another person, and attached to it was a photo release with some questionable lines.
" 'Authorized Use' of Photos is defined as one single use comprised of not more than three photo images by the Media Outlet which may be disseminated in print and/or electronic media. Notwithstanding Photographer’s ownership of Photos, Photographer must obtain prior written consent (hereafter 'Consent') from Artist for any other use of Photos."
"As a condition of requesting Consent, Photographer shall submit a digital file of all Photos to Artist and thereby grant Artist irrevocable gratis promotional use of Photos in Artist’s sole discretion, provided a reasonable effort is made by Artist to provide Photographer with an appropriate photo credit. Notwithstanding this grant of use, Artist shall have no obligation to give any Consent requested by Photographer. For greater clarity, any commercial use of Photos by Artist involving form of payment shall require a separate agreement with Photographer which shall be negotiated by the parties in good faith."
"If any portion of this Agreement is deemed unenforceable by a bona fide legal authority, the remainder of the Agreement shall remain in force. Any right not specifically granted by Artist is reserved."
This is the first time I've ever been limited on the number of photos I could publish. Three isn't really that many, and if a publication ran a gallery, three photos would look really anemic compared to the other artists on the ticket for the night. When I ran a short post on the Huffington Post Blog, I ended up just putting up three of each artist, for consistency's sake. It's a shame, because I had more than three shots that I felt were great. Three photos isn't even enough to post a shot of each band member. Secondly, it's really peculiar that while they acknowledge my ownership, I have to obtain written consent for any other use. Before I shot the show, I did ask if I could use the images in my portfolio and blog, which they said was fine. However, the troubling part of that is that they could have said no, and this photo release states that they reserve the right to refuse consent. I'm sure this is to prevent people from reproducing images on shoddy merchandise, but I feel like the direction is misguided.
Halsey and Imagine Dragons did not have a photo release. Halsey and her team were particularly amazing, in fact. While the release for Metric wasn't as restrictive as say, Foo Fighters and their infamous release policy, it still raised eyebrows among the photographers in attendance.
Why, for instance, are the terms stating that the artist gets "irrevocable gratis promotional use" when we don't have that ourselves? I have to ask for permission to promote my own photography with my own photos, but they never have to ask me to do the same to promote themselves. Lopsided, no? Additionally, they seem to draw an imaginary line between "promotional use" and "commercial use". The release mentions commercial use involving form of payment, and my interpretation of that is if a third party never approaches the band to buy or license my image, they never have to reach out to me. If that isn't the payment they are referring to, then what is? None of those terms are defined in the release the way "Authorized Use" is. If a photo is being used to drive site traffic, or raise awareness of an upcoming show, or via some other revenue generating medium, how is that not commercial? What separates "promotional" from "commercial" after all?
The "any right not specifically granted by Artist is reserved" part also bothers me. I'm sure you could argue that lots of this stuff is just used as a precaution, but the existence of the language means that there's a chance it can be enforced in a way you don't agree with.
I signed the release, but I didn't feel good about it. In fact, I felt cornered by it. Getting presented with a release hours before showtime was actually much earlier than other times I have been given a release. Most of the time it's given moments before walking into the venue. Imagine if you drove out of your way to shoot a show, spent money on gas and perhaps a place to stay, only to be slapped with a contract and an ultimatum? Awful.
Betty Who and The National, pictured above, were also situations where I had to sign a release. They were both really simple, however. The National had a "no syndication" policy and a "no commercial reproduction" policy. The release I had to sign for Betty Who was actually from the venue, Verboten. I don't recall the specifics, but I do remember that it didn't raise any red flags. These things don't have to be restrictive and intimidating, but I'd go even further and say that it's probably not necessary at all. Discretion in who you let shoot would automatically create better care in how the images are used after the concert. There's that integrity thing again. Remember how I said the problem is deeper than that? Here's what I've been thinking.
How can we expect fairness in an industry where artists hardly own their own songs? How can we, as photographers, expect a courtesy to be extended to us when it isn't even extended to the people on stage? I know that progress has been made in artist contracts, and I'm not fully versed in the history, but it's never really been very favorable for the artist, with very few exceptions. Of course, the difference is that those contracts never completely lock the artist out of a profit. I just think that these strange terms and conditions aren't all that surprising, considering the problem with music contracts. I wish that more artists would show empathy for the people who document their performances. I know that it is highly unlikely that artists get time to sit down with the releases and contracts that go to media outlets, but maybe it's time they did. Maybe that would get the people who represent them to be more rational. Maybe it's time they used their platform to support and uplift the talent of others outside of their industry. This isn't a problem that is going to get solved without participation from all parties involved.
I'm not claiming to be an expert on any of this, but I do think that the time has come to make this more of an open conversation where everyone involved is treated with dignity and respect.