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Why Are So Many High Profile Artists Against Letting Photographers Own Their Own Pictures?

We asked a lawyer why photographers are having to sign their rights away to take pictures of artists like Taylor Swift and the Foo Fighters.

by Ryan Bassil
Jul 10 2015, 2:08pm

This article originally appeared on Noisey UK.

When Taylor Swift took on Apple—penning an open letter to the company demanding they pay writers, producers, and artists whose work appears on the service—she was branded a heroine. The company made a U-turn on their decision and stated they would pay all artists for their work. Less than 24 hours after that decision though, contracts surfaced which served to paint Taylor Swift, or the company behind her, as hypocrites; a team who expect payment for their own work, but relinquish the right for others to do so, too.

In his own open letter, UK-based photographer Jason Sheldon highlighted demands made by Swift’s management company, Firefly Entertainment, for her 2011 tour that stated photographers who shoot Swift’s concerts do so on a “one-time basis.” The contract then goes on to state Firefly Entertainment has the “perpetual, worldwide right to use” those photos in any "noncommercial" way it sees fit—which basically means everything short of slapping it on official merch, including using it to promote upcoming concerts—without compensating the photographer.

This was followed up with a tweet from another photographer, Joel Goodman, who posted a more recent, and even more restrictive contract for Swift’s current 1989 tour that stated photographers are unable to republish their own photos in their portfolios. Some accused Swift’s team of hypocrisy: They want payment and control over their own work but they won’t allow the same for people who work with them.

Swift isn’t alone in this practice. Just last week a similar contract appeared, this time from the Foo Fighters. In a post on The Washington City Paper’s website, the publication states that, “had they signed the contract, would have agreed to: the band approving the photos which run in the City Paper; only running the photos once and with only one article; and all copyrights would transfer to the band.” They continue, and say “the band would have "the right to exploit all or a part of the photos in any and all media, now known or hereafter devised, throughout the universe, in perpetuity, in all configurations" without any approval or payment or consideration for the photographer.”

I guess all of this could come back to #BeyonceGate—in which a series of less-than-flattering photographs of Beyonce found their way on to the internet, republished again and again in their entirety, something which presumably upset her PR team. It may be a leap, but in my opinion, the drawing up of these contracts probably has less to do with artists like Swift and Foo Fighters wanting to take money from photographers and more with them wanting to retain control over their own image.

However, that idea seems somewhat ridiculous when you consider cell phones, iPads, and whatever are allowed at live concerts. Plus, with the gluttony of photo editing tools available on the internet, there are ample resources out there to photoshop anything into being. Take these for example:

When any internet user can create any image, shouldn’t photographers retain the right to publish their work when, where, and however they like? It’s their photo after all. And if the likes of Taylor Swift and the Foo Fighters are adamant they receive control and payment for their work, shouldn’t they allow people who take photos of them to do the same too?

Feeling confused about the situation and whether it’s normal practice—the Washington City Paper state some bands' contracts, like the Rolling Stones', are less restrictive—I hit up a lawyer who specializes in photography to find out more.

Noisey: Hey Rupert! Are these contracts standard issue? Are they normal practice in the industry?
Rupert: It’s very difficult to say what normal practice is. Some photographers are big enough to say: “piss off, I’m going to have my copyright, if you don’t like it go to another photographer.” And some artists are important enough to say: “I’m bigger than you. You do what you’re told and you’re lucky to have the privilege of taking photographs of me.” In that framework, you’re going to get a whole raft of different practices that different artists and photographers are going to come up with.

Right.
The legal position is very clear. If a photographer takes a photograph, he owns the copyright unless there’s a prior or subsequent agreement that the copyright will be assigned. Best if that’s in writing. If it’s not, you are down to proving what was said when the agreement, if there was one, was reached. That’s the gray area where licenses may or may not be implied.

I get a few of these a week, when photographers are calling me and saying they’ve been ripped off: “These people are using my photographs for advertising and I never agreed to it.” They may be right. But what are they going to do? Only the big photographers can stand up to the big artists and refuse to photograph them.

And in these contracts from Taylor Swift and Foo Fighters, the control over these images seems to be signed over. So what should photographers focus on when they’re looking at these contracts?
One of the things a lot of photographers could usefully focus on is less the money they’re going to get for the job—and I say that fully appreciating they need to make a living—but what they’re going to get out of the job? Publicity? Possibly. Then they should be insisting, whatever else happens, on a credit. The law is quite clear on that. In order to have the right for the credit, you’ve got to assert it. If [the photographers] assert their right for a credit, then they’re entitled to a credit. And if they don’t get one, they’re entitled to compensation for not getting it. Is it worth pursuing? Probably not. If they have a go at the artist, then the artist may never use them again.

So they need to ask for the credit?
Exactly. The artist’s argument is always going to be: “I’m so famous. You’re so totally unknown. By associating with me you’re getting a huge reputational/financial gain”. Maybe there’s something in that, but I doubt it. However unpleasant and nasty this marketplace is—it’s not the first market that’s ruled by money—each photographer needs to decide whether the job’s worth it, what he’s going to get out of it, and how he’s going to get it.

Got it. So photographers should ask for a future credit, where possible, and if it doesn't make sense, don't do the job. Thanks!

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