Photography is a unique vocation in that it is both an art form and a business. Music photographers face an unusual set of challenges in their careers. Not only are they shooting in very difficult settings, but they face a multitude of issues surrounding use and copyright. This article will address some of the concerns of the concert photographer.
First and foremost, a concert photographer is a fan of music. There is no fame, glory or fortune to be found in photographing artists from a dank pit with questionable lighting, and then working through the night to prepare images for presentation. 90% of the time, the photographer is there because they love what they do and they have a passion for music that they hope to be able to share through their own artistic vision. The fact that they choose to deal with some enormous hurdles is only further proof of their dedication to the art.
Leon Bass, attorney at law in Columbus, Ohio, specializes in copyright law, entertainment law, and contract law, among others. Mr. Bass’ firm was established in 1998 and has successfully represented such clients as the Buckeye Lake Music Center, Quiet Riot, Ted Nugent, Night Ranger and Slaughter. He is currently an adjunct professor at Otterbein University and teaches a class in Music Law. In his spare time, he is an amateur underwater photographer. Mr. Bass was generous enough to provide some answers to the many important questions currently facing music photographers.
U.S. Copyright law deems that copyright protection subsists from the time the work is created in fixed form. Fixed form includes most types of media, including digital content on flash drives, hard drives and memory cards. However, there are restrictions placed on these rights, either legally or by the music artists themselves.
Q: Does the photographer own the copyright to the images they take at a concert?
Mr. Bass: Yes, the photographer owns the copyright in the images, unless the photographer has an agreement with its employer (the publication) or the photographer is a work for hire for the publication. By law, a copyright is created when a person fixes an “expression” into a tangible form. A Photograph is considered an expression and the tangible form is the film. A copyright should still be registered however.
90% of the time, editorial use is why the photographer shoots the concert to begin with. The end purpose is then to contribute substance to the publication and to give publicity to the music artist in a mutually beneficial relationship.
Q: If the photographer owns the copyright, in a situation with no contract or release, may they use the photographs in any way they choose, including selling to other publications or selling the photographs as prints or any other form of merchandise?
Mr. Bass: I would not advise a photographer to use or license a photograph of a famous person for merchandise or other commercial prints, such as posters bearing the artists name. In those cases, the Photographer should enter into an agreement with the artist or obtain a release because the artist’s persona or “right of publicity” is being used in connection with the sale of the merchandise. However, an art print or series of photographs in a documentary would likely be okay.
Also, although it may be legal to sell an artist’s image as fine art, the music industry is very small. Cultivating relationships and networking is the most important thing a photographer can do. Stepping on someone’s toes by selling a print, even as fine art, could be harmful to a photographer’s reputaion.
Q: If the photographer owns the copyright, would the music artist have any right to use said photographs of themselves at their discretion, free of charge?
Mr. Bass: No. The copyright belongs to the Photographer, and nobody can use the photograph without permission of the copyright holder.
To add on to the already looming pile of concerns is the issue of photography releases. The majority of the time, once a photographer has been approved for a shoot, they simply show up to the venue to pick up their photo pass and then continue inside to shoot the show. The only common industry-wide standard restriction is the “first three songs from the pit, no flash” rule. Sometimes photographers are restricted to shoot from the soundboard, which is located either at the back of a venue or perhaps halfway back. This can vary from 50 feet to 50 yards or more and involves shooting over the heads of the crowd. It is a challenging restriction and is usually only seen with larger international acts.
Every now and then, perhaps 10-15% of the time, the photographer is required to sign a release. A release varies widely in terminology and degree of restriction. The most relaxed release is one that simply asks the photographer to not use the photographs in a commercial or retail setting. This should be stating the obvious, but it is also a reminder that the artist wants to protect the way in which their image is used. A more common type of release goes a step further and also has the photographer state in which publication the images will be used. Some releases include language that restricts how long the images may be used for, how many times they may be used, whether or not they may be included in a photographer’s portfolio and if they may ever be used again, even in an editorial situation. This is where the issue starts to become sticky. Particularly with the advent of the internet and online publications, placing a limit on the length of time an image may be used seems unrealistic. Additionally, further editorial use would likely only bring more publicity to the music artist in question, so restricting said use appears to be more of a hindrance than a help.
The release which is the most damaging to the photographer’s rights is the one that contains a so-called “rights-grab clause.” In these releases, the copyright of the images is transferred from the photographer to the artist and/or their representatives. This means that the photographer no longer owns the images and cannot use them in any setting past the stated one time editorial use and that the artist may use the images in any way they choose without notifying the photographer, offering compensation or even giving credit. Some examples of these releases can be found at Music Photographers Network and on the Facebook page "Music Photographers."
Q: If the photographer is presented with a release form and would like to make a change, what is the proper method to follow?
Mr Bass: The photographer is probably out of luck if the show is in 24 hours, but if they are a week out, they might be able to make it happen. The release is probably coming from the band’s management, and was probably written by the band’s attorney. The photographer would need to submit their proposed changes to the management, who will likely then get them approved by the attorney. This could take some time, so I would suggest giving it a couple of weeks if possible.
Q. If said release form is presented to the photographer minutes before the performance starts, is it enforceable? Would it be considered legal for the photographer to cross out any part of the release?
Mr. Bass: If the photographer signs it, it will likely be enforceable. If the photographer makes a change, both sides would have to sign the agreement and initial the changes showing their consent to the change.
Q. If the release form is presented to the photographer minutes after they have taken the photographs, are they obligated to sign it? If they do not sign it, can they be forced to give their memory cards to the music artist’s management? If they do not sign it, do they have the right to use the images?
Mr. Bass: This is a tricky situation. The Band and/or Venue has the right to allow people into the venue, and in most cases they grant access by selling tickets or by giving passes to guests of the band and the press. If the Photographer received permission to be in the pit or designated area to take photographs, then it seems clear, that at least implicitly, if not expressly (like in an email) the photographer had permission to both be on the property and to take photographs of the band. If certain terms were not agreed upon in advance, the photographer was there in reliance on the fact that he or she could take the photographs and use them. If the photographer is working for a publication, and this was made known to the band, then I think the photographer would have a right to use the photographs for the publication and probably for art prints. The photographer does not have to agree to anything more at that point and certainly cannot be forced to sign an agreement after the fact. Nor would the photographer have to give up memory cards as it is their property. To the contrary, this is not the case for normal ticketholders, who agree to terms upon entry. These are usually on the back of the ticket.
Why is maintaining copyright such a significant issue? As stated earlier in this article, there is no fortune to be found in this line of work. There is no such thing as a full-time music photographer who can make a living just from publishing photos of a concert one time. Almost all of these photographers have full-time jobs in addition to being photographers, or they have a photography business that extends into other areas, such as events, weddings or portraiture. In truth, the income from just publishing concert photos in a publication barely covers job expenses, much less pays the bills. The only way for the concert photographer to supplement their income is through future editorial use and licensing. This means publishing the photos again at a later time and licensing the images for use to other editorial outfits, music-related commercial entities (such as guitar companies) or back to the artists. Transfer of copyright significantly reduces the possibility of any future use, and even takes away the right to sell prints as fine art.
Q: If the release requests that the photographs be used once in a single publication and never again for any other format, but allows the photographer to retain the copyright, what is the purpose of retaining the copyright?
Mr. Bass: There is still value in the copyright. A provision restricting future use really means that the photographer can’t use it without permission from the band. That being the case, the band could still request a license to use the photograph, or the photographer could still request the right to use it or license it in the future. If that occurs the band and the photographer could negotiate terms, like a royalty payment. In addition, the holder of the copyright has exclusive use of the photograph. Thus if anyone uses the photograph without permission of the photographer, including the band, it would be copyright infringement and the photographer can sue for damages. If the copyright was registered before the infringement and the use was “willful” the photographer can sue for up to $150,000 in damages plus attorney’s fees.
The argument from artists and/or their management is that they want to protect the way in which their image is used. Some have even had a situation arise wherein a photographer tried to take advantage of them in some way, either by using their images inappropriately or by attempting to demand a sum of money as compensation for the photographs. In such cases, it only took one unethical photographer to ruin it for the thousands who would never consider such actions. In the majority of cases in which the photographer is presented with a copyright transfer release, the artist either does not know that a release exists or does not understand the implications. The fault almost always lies with the artists’ management, not the artists themselves.
Why would a photographer sign a release with a rights-grab clause? The number one reason goes right back to the top of this article: concert photographers are fans of music. Sometimes the opportunity to photograph a particular artist outweighs the negatives of giving away the copyright to the images. Another reason can be attributed to the way in which the releases are presented to the photographer. They are usually handed out only moments before a show, in a dark environment where it is difficult to read the fine print. Since many releases do not demand copyright, it is easier for the photographer to just sign it and hurry in to shoot the show. In many cases, the photographer just ignores the copyright transfer and signs the release, assuming that the other party will never follow up and enforce it.
Q: If the photographer refuses to sign a release because of a copyright transfer clause and is then terminated by their publication, do they have legal recourse with regards to the publication?
Mr. Bass: Probably not, but it would depend on their agreement with the publication. Most are probably “employees at will” or “independent contractors.” In both cases the publication can terminate employment for no reason.
How can a photographer deal with a rights-grab release? The obvious first answer is to not sign it. If at all possible, the photographer should attempt to contact the artist’s publicist or management to discuss the issue before the show. At the end of the day, publicists want their artists to get publicity. That is why the photographer was given access to the show. The publicist may be able to work something out, even at the last minute, to let the photographer shoot the show without giving away their rights. This is ideal because it not only solves the photographer’s problem, but it also makes the people who can change the release policy aware of the issue. Crossing out a portion of the release on site without initialing and dating by both parties does not invalidate that part of the contract, although it might send a message. Making contact directly with either a publicist or manager, however, is a much more effective way to communicate the problem.
Point and shoot cameras are allowed at almost every concert. The audience goers who bring these cameras and photograph the show do not sign a release. This means that the regular fan of an artist can take their low to medium quality images and use them freely, whereas the professional photographer who has had years of training, thousands of dollars invested in equipment and is in a place to promote the artist with fantastic shots may have their rights taken away and their image use restricted down to the bare minimum. It is illogical, but it is the truth as it stands right now.
Despite this mountain of logistical, legal and artistic challenges, music photographers still put their blood, sweat and tears into their work. Their love of music and passion for the art are stronger forces than that of their challenges.
This article and Leon Bass’s input should not be construed as binding legal advice and may not take the place of legal counsel. This article was written in August, 2011 and refers to U.S. Copyright Law.
This article may not be republished, reprinted or replicated in whole in any media form. If paraphrased, a link to this original article must be included.
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