Let me start by saying this is an opinion piece, as much of what I write is. I’m not looking to legally council nor reprimand, or cite the intricacies of international copyright law. I’m no lawyer. I am however a musician and photographer with mixed levels of success in either arena, and I have found some of the recent battles being waged by bands, managers, fans and photographers to be somewhat disheartening.
I like to read through various sites daily to keep up with the goings on and such. Over the last few days, it seems there is a war brewing between a small pocket of the music industry and photographers. I speak of course about the recent copyright battle between photographer Rohan Anderson and the band Red Jumpsuit Apparatus (you can read through the article that I read HERE on PetaPixel for all the fun, juicy details if you’re not yet aware). Then, seemingly in response, Shawn Hamm, the tour manager for Three Days Grace went on a twitter tirade condemning photographers and their claims to compensation for any intellectual property they may think they are entitled to by way of shooting bands (you can again read the PetaPixel article on that one HERE). Of course, I’m paraphrasing, and will leave my opinions on these individuals and bands (and their behavior) aside to focus more on my opinions at large regarding the mingling of various artistic industries. Come on in for my thoughts, and the ability to add your own…
~rendered useless – 2009~
Now, I like to think that most musicians understand that without photographers, much of their image and outreach would not exist, and on the other hand even a talented music photographer is severely hindered without subjects to shoot. The relationship is mutually beneficial. Just as the creation of music is a valued addition to our social landscape, so too should the visual documentation being performed by a professional who is equally as adept at their craft who is largely responsible for the image any particular band or musician cultivates. For instance, I’d never seen nor heard of Red Jumpsuit Apparatus prior to this copyright battle, but now I do know what they look like, how they look on stage and that is all because of… yep, photographers. My interest in them prior was zero, and now while I’m not any more interested in them or their music (arguably less so), I’m aware of their existence, even if it is for an unfortunately bad reason.
Without photographers, much of what we “know” would be far more abstract. This goes for music, musicians, and far more that we interact with on a daily basis (websites, news, food, fashion, etc). It’s easy for a band manager to say that just because they see many people with “nice” cameras, that photography must be fairly easy or at least easy enough to get you plenty of pictures to choose from, but I know just as many people that have nice cameras as I do with guitars or other musical instruments and while they can all make noise, very few of them are capable of truly using those instruments to create something anyone would consider high quality. Same is true for photography. Yes, that we can carry around amazingly capable tools in our pockets now lends itself to the law of averages, but there is still a huge difference in the consistency of quality, and overall knowledge between Johnny iPhone and a working professional. Many folks with guitars enjoy them just as many with cameras do. That is great, but there does seem to be an assumption surrounding photography that gear somehow provides a photographer (to a non photographer) with clout, and to me, it just means that lots of people can afford decent stuff. When I start to notice the musical gear some people have, I can make the same assumptions regarding their musical prowess, but in reality just the same would be true.
As a musician (granted, not a very successful musician) and a photographer (only a slightly more successful photographer) I had quite a few thoughts going through my head as I read through these types of stories, and I think if everyone can take a step back to get a better look at it, we can all see how beneficial this relationship between musicians and photographers can, and should be. That most of these battles stem from improper use, and normally can be circumvented by simply asking what a photographer might want in return, I think much of this could and would be easy to avoid. I find the irony of musicians citing illegal downloading of their music in these cases as different than stealing images. The argument that music is created and photography somehow is not is silly. I have written songs, I have collaborated on songs and while sometimes they can be a lot of work, once done, it’s done. We get to play that song for years and years. With photography, each individual event (and a large variety of moments in that individual event) are unrepeatable in the case of a concert. Sure, not all concerts or events are created equal, but then again the same is true for songs. The good photographers that capture those iconic moments that live in all our memories (think Jimi Hendrix with his flaming guitar, Johnny Cash flipping us off or Madona ‘voguing’ can be akin to a timeless song, and honestly can earn a photographer as much in royalties as a song could for a band. While I’m not saying that a song and an image are one in the same, just as I feel a great musician and a great photographer are two masters of different crafts, I do feel that there is an ignorance when someone feels that one’s artistic output somehow becomes lesser than the other’s. It’s different yes, but still valuable and both play very important roles which are in many ways symbiotic, and neither could be entirely whole as we know it without the other. Music and photography are greatly intertwined, and I love that they are.
~moral crux – 2012~
Let me preface my rundown of my professional existence by saying that I have always been a networker by nature. I find great pride and satisfaction in bartering, sharing and providing friends with something of value that they’d otherwise not have. I often trade my photographic services to friends and fellow professionals in exchange for goods and services in return. Many of my photographic exploits are a collaborative process where all parties involved may be lending expertise to benefit the whole, and I enjoy working that way much of the time.
My band (again, not in anyway hugely successful) gives all of our music away for free (shameless band plug, enter “0” in name your price, which may be one major reason we are not monetarily successful) because we would rather people want to check us out when we play live and giving away our music allows more people to be exposed to it. We are also not making our living by writing, recording and playing our music, so we accept that we’ve placed the value on our recorded music according to our needs and expectations. We all have other jobs and write, record and perform our music because we love to.
What money we do make is made from live shows and merchandise as just about any band, regardless of popularity does. It more or less pays for our recording costs, pressings, merch runs and gas (sometimes) to get to shows. Sure, a big contract with a huge record label will give you some kickback on record sales, but the real money (and control) is in touring and merch, even for the big bands. For us, if we can cover recording costs and the cost to screen tees and stickers, we’ll gladly give away our music to gain anything resembling a fan base, and this is our choice and in no way am I saying that bands should (or contractually can) give their music away for “exposure” but we’ll get back to this later.
~altar boys – 2009~
While as a band we have chosen to give our music away, it in no way means I feel it’s okay to illegally download another musician’s music, just as I feel it isn’t okay to steal an image. Unless you have been granted consent to do so, it is thievery and whether it’s a song, a picture or a car, without permission, you can’t just take it. I feel there’s no difference if we’re talking about someone’s property, and while we can debate if a car or a photograph have more value, I think most of us would be surprised by what a photograph can be worth, and regardless, stealing is wrong, so says the law.
Okay, photographers. I’m assuming I’m talking to more of you than musicians here as most of you guys are reading this because it is a photography blog. Copyright law can vary depending on where you reside on this large blue marble. Usage and contractual compensation varies from photographer to photographer and will largely be determined by your market, skill level and industry guidelines. I’m not going to try and outline this in detail, but let’s just say that assuming you have the right to record images (many venues will not allow this without a contract/photo pass, but usually look the other way unless money is involved) any images you create are in fact your intellectual property, just as songs are the intellectual property of the bands and musicians that write them. I’m not aware of a place where this is not the case when abiding by any given law regarding the creation of a photograph or song. On the flip side of this, if you are making money off of your pictures, you also need to have releases for property, individual likeness and any protected copyrighted likeness as well, or must have this properly outlined in your contract. It would be your (the photographer) responsibility to coordinate and collect the necessary releases in regard to your usage contract. Likewise, songs and lyrics may be subject to legal ramifications if those lyrics are judged to be slanderous or the like.
Simply put, (as I understand it) if you have permission to shoot, the images are yours (unless you relinquish all rights via the band/venue’s contract) and you can use them like I have here. I’m not making money, I am simply using images I’ve taken journalistically to illustrate my point. The ability to sell and/or license them should be outlined in whatever contract you’ve negotiated and would require permission in the way of a release in most any case I’m aware of. If anyone were to want to use these images for their own use, I may need to be capable of producing releases if I were accepting money, and certainly if the interested parties were going to be using any of these images for any commercial purpose. If you feel you want that flexibility, you better have signed releases from the people and places.
~kill the kids – 2012~
What if there is no contract, no releases? I tend to shoot bands that don’t have lawyers, and therefore I usually have no problem getting a straight yes or no when asking if it’s okay to shoot while they play in exchange for sharing the images afterward. Most bands I shoot enjoy having shots of them playing and it rarely goes beyond that. I will always list the band in connection to where I use these images. I can use them in my portfolio, they can use them on their website. Trade offs. If you’re shooting a nationally touring act, and somehow find a show in a venue that allows free reign for photographers without any type of credential, then you’re fine, but I’m not aware of where this venue might be (read all the legal jargon that is either posted at the venue, printed on the ticket, or emailed to you as a receipt). My guess is that while they’ll look the other way if you’re instagraming images (which may be seen as “social journalism”), if you try to sell images without proper releases, the band and venue may be pissed.
~aristeia – 2007~
Should we as photographers allow free use to the bands we shoot? That is a larger question and one that I feel has no singular answer. If I have a contract to shoot a band, we will have usage laid out. I own copyright, they negotiate for shared copyright, or more likely usage rights allowing them to do X, Y or Z with them for a predetermined amount of money. If I’m shooting a band that we’re playing with, I’ll usually talk with the band before hand to ask if they’d mind, and then I’ll get an email contact within the band if I don’t already know them, so that I can both show them afterward and get them the images of their set. Usage from that point is a negotiation from the ground up, and for me, I’m happy to let them use the images of themselves for their promotion (see websites, facebook, et al).
~rendered useless – 2012~
Some may say that as a photographer it is more important to protect your images and compensation and I’d never disagree with that from a professional standpoint, but from a personal standpoint I feel that there are too many variables to put a hard definition on how a photographer should approach the interaction with a musician or any other professional. It stands to reason that if a person is making money by way of someone else’s craft, it should professionally include a well outlined contract certainly and all parties included in the creation of that material should be compensated. If you’re helping each other out (whether that is by taking images, or helping promote he or she who took those images) while not actually using the images for monetary gain, then the rules can be restructured in my opinion and as long as all parties are respectful and understand that these images wouldn’t exist without all parties involved, then at least you can start the conversation from a place of respect and honesty. If the Rolling Stones asked me to take images of them, and wanted to use them for social media promotions and the like, you better believe that I’d be negotiating terms as they stand to make a lot of money when promoting shows, tours or album sales and if my images are party to that, then I should be compensated. If I’m shooting my cousin’s 8 year old’s garage band, and they want to put the shots on Facebook to share with their 37 friends, then no, I’m happy to give those away. There is quite a bit of reality in between those two situations, but again, I feel each situation can be looked at individually, and respectfully to all involved.
To each their own, but I find that I can use my photography to both network and build friendships and this to me is a form of payment to an extent and just as I love playing music, I love creating images. When I can combine those two passions, I’m that much happier.
The key for me is communication, and if you’re worried about it, get it in writing and get that signed. That way, everyone knows where everyone stands. If band X wants to use an image I’ve taken for an album cover and digital release after the fact and we haven’t set it up contractually prior, then we can negotiate, but that is all laid out when I contact the band initially after taking the photos.
~tapwater music – 2008~
I can also speak from personal experience that this “photographic sharing” situation is not in any way restricted to the music industry and I do feel photographers should know what they’re giving away. My rule of thumb, if the person or people you’re issuing an image(s) to are selling it, or using it directly, or in cases indirectly to make money (album art, shirts, concert posters, promo pack fodder, etc), you as the photographer and creator of the imagery, should be compensated. What that compensation is, is certainly debatable and will vary from industry to industry and use to use. If there is no money being made, and a band (in this case) is simply using your image to show fans what last night’s show looked like, the band should credit the photographer at the very least, and link to the photographer’s website. Where it may get sticky (and seemingly did with Rohan’s situation) is when he had asked to be credited as they’d cropped his watermark out (which, is altering an image and is generally something a band should check in with the photographer before doing). What did the contract say? What does copyright law say? How does one prove that use is done with monetary promotion as a motivation? All questions that can be tricky to answer definitively, but no one is saying we can’t be reasonable, decent individuals when looking to negotiate with each other as we all navigate these intricate laws.
~mean jeans – 2013~
Earlier on I’d mentioned how my band gives away our music for exposure. Not to entirely contradict our sentiment here, but looking at this as property (our songs, or a photographer’s images) it is the decision by the one (or group) who owns the rights to that property to give it away, or charge for it. To entertain the argument that a photographer shouldn’t own the right to their image which was more or less stated by Mr Hamm via his link at the beginning of this article, or more accurately not deserve compensation for the creation of that image, let me pose this hypothetical using a musician as an example.
If Toyota wanted to use a band’s music for a commercial, without payment, but they said they’d mention who the band or musician was, giving them “tons” of exposure, would this be ample compensation? Likewise, for a large, internationally recognized band to use a photographer’s image to promote an album, tour or the band in general that they saw as valuable to their branding and image, would just mentioning the photographer so that they got “tons” of exposure seem like a just level of compensation?
To me, no, neither situation is right. Toyota, or this “band” sees the value in the song or image and those who work hard to create these things should be paid. You know that Toyota is paying the videographers and image makers involved in creating a commercial or print advertisement, why wouldn’t they pay the person or people responsible for creating the score that will inevitably be the auditory hook for said commercial? While what a band may make from commercial licensing and what a photographer may expect for image licensing for a band’s image may differ, the concept of compensation should not. All legal jargon aside, if you create something, you’re entitled to the right of ownership as far as I’m concerned, and in these cases, so too is the law.
~the botherations – 2010~
Now, musicians, unless you’re remarkably driven, marketable, talented and very lucky, you’re probably not living primarily off of your music, or at least not looking at a comfortable retirement at the ripe old age of 28. Regardless of your level of success, your image is important to protect and carefully craft just as the public image of any artistic professional is. How do you do this? Social networking, retweets, hashtags and mobile platforms have transformed not only the music industry, but the commercial landscape globally. Photography is a crucial part of this equation. Chances are you know a photographer who you like working with, or could easily find one, but I’d argue that just as finding a recording engineer is important to get the sound you want when recording your music, a good photographer is important at knowing how to get you images that gel to your vision of what you want and need those images to look like.
~benson jones – 2007~
This all said, through the various on line threads these recent cases have spurred, I’ve read a lot about the comparison between people stealing photographs for their own use versus people stealing music from bands by illegally downloading or sharing said music. I feel it is ignorant to dismiss one or the other as something lesser. Assuming we’re talking about a photographer who is within their right to procure images of bands (in this instance), the similarity between the amount of time and money invested in gear, and their profession in regards to musicians and photographers is remarkably comparable. I’ve invested in gear and dedicated a lot of time for both music and photography, and have attempted to receive money through both ventures, so let me tell you that while carrying around amps, guitars and drums is more cumbersome in many cases, the investment and cost in the tools to create artistic product as well as the time dedicated to learning and excelling at these tools is very similar in many, many ways. To say that stealing music is worse than stealing photographs is just not true to me. Both “products” are the result of investment in time and money, executed by a dedication to honing the respective craft with the end results a direct accumulation of this time, money and dedication. Sure, some people get lucky and nail a shot that they wouldn’t know how to replicate, but on the musical side, I could make the argument that much of the popular landscape is occupied by people that aren’t so much talented as blessed with a marketable face and ability to sell tracks written for them by others. Does that make that particular image or artist any less entitled to their intellectual property or negotiated contractual rights? I don’t think so, but it should not take away from those other professionals who truly excel at their craft, regardless of the medium that craft employs.
~ninjas with syringes – 2012~
I can only imagine the spectrum of response my opinions on this matter may garner, and I welcome them into the fold to further the discussion regardless of their tone, but if you’re able to check any bias or emotion at the door, I think we should all be able to agree that whether music, photography or any other type of creative artistic profession should at the very least look to understand the other side as opposed to disrespectfully dismissing another’s expertise and skill. You may or may not be within your right to claim ownership, but that alone won’t excuse you for being an a-hole, so bands, tour managers, photographers and people in general, remember that anything you say, write, tweet or post can follow you around for a long time, how do you want to build, maintain and cultivate your own image individually or professionally?