Sunday, 28 June 2015

Creators working together?

I have been reading with great interest the open letter sent by Taylor Swift to Apple in response to their very generous offer of giving away other peoples work for free (musicians work that is), and how Apple have done a very sensible about turn in the face of mass public pressure (no one wants to look bad in front of their customer base)  To Apple Love Taylor

Even greater interest for me was the second open letter written by my friend Jason Sheldon, a successful and skilled concert Photographer, in which he publishes the 'Concert Photo Authorisation form' that all photographers have to sign before they can photograph Ms Taylor in action for their publications.

Ms Taylor's contract demands access to all the photographers concert photos for free, not just for three months as Apple had intended with Ms Taylor's work.

Of course to music and concert photographers this kind of rights grab will not be a novelty. I have a personal collection of scores of these unfair contracts. Some go as far as to demand ownership of work done, and even to demand that the photographer then indemnify the band group for any losses they incur,  and most insist on ownership (copyright) of the photographs for the band to do with as they will - all of course at the expense of the photographer who is not allowed to use or licence the images he or she has worked so hard to get.

As a result of these 'sign and give away your work and rights' or 'don't sign and don't take photograph' contracts I have largely pulled out of  concert photography.  Too many times, I have arrived at the venue, sometimes after travelling several hours to be presented with a contract that has to be signed at the door of the venue minutes before the performance commences.   Not even the common decency to send out the contract when the access has been confirmed by e-mail. Clearly, those issuing these contracts know they are unfair, so they issue them only when the photographer is under the most pressure - as they are about to go into the gig. No chance to get them vetted legally etc.

Interestingly enough the Independent followed up Sheldon's piece with a response from Taylor Swifts 'people'. In the piece:

"Swift's UK spokesperson has now responded with the following statement: "The standard photography agreement has been misrepresented in that it clearly states that any photographer shooting 'The 1989 World Tour' has the opportunity for further use of said photographs with management's approval."

Ok, yes it does, but I wonder how easy or difficult that permission would be to get? From Firefly? Swifts management team, I wonder how many photographers have received such permission easily and quickly without any kind of hassle?

It goes on:

""Another distinct misrepresentation is the claim that the copyright of the photographs will be with anyone other than the photographer - this agreement does not transfer copyright away from the photographer."

Actually there was no such misrepresentation, What Sheldon actually says is:

" it appears to be a complete rights grab"

 And that it is; and it goes on and demands that you are granted free and unlimited use of our work, worldwide, in perpetuity..  Now that isn't a transfer of copyright, but no one ever said it was. Perhaps Taylor's UK representative simply does not understand copyright?

She could revise it here Copyright, Designs and Patents Act 1988

Of course swifts UK representative total omits to deal with the fact that the agreement  demands that you are granted free and unlimited use of our work, worldwide, in perpetuity. And Swift wasn't happy  (quite rightly) with Apple taking only three months!!!

 But we are told the agreement has been updated. Yes, yes it has. If anything it is even worse...

 I would draw your attention dear reader to paragraph 3:

"On behalf of yourself and the Publication, you expressly grant FEI, and its related entities, including, but not limited to 13 Management, LLC; Taylor Nation, LLC; and Taylor Swift Productions, Inc. (the “Related Entities”), the perpetual, worldwide right to use the published Photographs for any non-commercial purpose (in all media and formats), including but not limited to publicity and promotion on their web sites and/or social media accounts or pages."

 There it is again free use for ever and a day, and this includes publicity and promotion (generally regarded in the industry as Commercial use by the way)

And Paragraph 5 is good too:

"If you fail to fully comply with this Authorization, authorized agents of FEI, the Artist or the Related Entities may confiscate and/or destroy the technology or devices that contain the master files of the Photographs and other images, including, but not limited to, cell phones and memory cards, and the Photographs and any other images; and eject you from the venue, in addition to any other remedy available to FEI, Artist and/or the Subjects. You and the Publication jointly and severally shall indemnify and hold FEI, the Artist, the Related Entities and the Subjects harmless from and against any and all claims, losses, injury,
damage, and expenses incurred by any or all of them arising out of this Authorization and/or the undersigned’s attendance at the Concert. You and the Publication hereby release FEI, Artist, the Related Entities, their officers, directors, employers, contractors, and agents, and the Subjects from and against any and all liability arising out of this authorization and/or your attendance at the Concert"

They give themselves permission to confiscate or destroy?  Even the police are not allowed to do that!!

This has to be one of the worst band agreements I have ever seen. Compare it to the reasonable one I refer to later in this blog.

Taylor Swifts Management Company Firefly are not the only ones who try and restrict Photographers to a point where covering the band is simply uneconomic. The well known and popular singer Kylie Minogue's management company Darenote Limited go a step further and demand that the photographer assign copyright. (see note 2.)

"We shall own and you hereby assign to us the copyright in and to the Photographs"

As if it makes it all OK then say  (note 3):

"We shall not exploit the photographs in any manner without your consent"

(By this they mean they can use the images for their own use, but will not in anyway sell them on or licence them to third parties)

But then confusingly go onto say (note 4) 

"We shall be entitled to assign transfer sub-license mortgage charge or otherwise dispose of our rights hereunder to any person or entity without reference to you."

Wow.  Now that is a real rights grab!!!

What has probably not been made clear to the reader so far; indeed I don't believe it has been mentioned in any discussion of band-photographer contracts, is that the photographer does not get these 'contact or agreements' in advance of the show. No! In every circumstance I have experienced, and in every circumstance that fellow photographers tell me of, these contracts are handed to the photographer as they are about to enter the venue, and always on a 'sign or you don't get to photograph' basis.  If the photographer queries the legality of the document - we all do, then of course there is no way of discussing or negotiating a change as the venue staff have no control or jurisdiction. The answer is always:

"We have been told sign or no photographs!"

Does that sound right? 
Does it sound fair?  
Does it come across as a legitimate way to do business?

If a photographer is employed, then he or she is being asked to sign a legal document that in all probability they have no authorisation to sign, and without the publications legal department having the option to look at it. Also without the option of discussion.

If, as most are, the photographer is either a sole trader, or a self employed person asked to attend the concert by a publication, then the situation is worse. Not only do they not have the authorisation to sign on behalf of a publication, but inevitably they are dependent on selling the photos to their client in order to earn that day.  Travelling seventy miles to a gig, and then being presented with a legal looking document that you can't possibly sign is not good for your average freelance.  If they do decide to sign and cover the gig then there is only the one reproduction fee from the initial client - the photographer then has no control of their clients (or their own) future use of their own created work.

Or worse still, the photographer doesn't sign, doesn't get paid, and can't even recover the expenses (mileage etc).

Fortunately, such restrictive contracts or agreements are still comparatively rare, and only a small percentage of bands issue them. But that percentage is increasing!

Bands are keen to protect the commercial exploitation of their image - marketing t-shirts, gifts, memorabilia and suchlike, and they have every right to do so. 

Photographers and bands/musicians should work together in this. 
No images = nothing to exploit of course. 
But it should be working together not one party cynically exploiting the other - as Apple initially intended.

  So what would a reasonable agreement look like you want to know?  I am glad you asked because I happen to have one here...

Nothing here to make anyone's eyes water. Protects the artist - ensures that the editorial photographer does not sell on photographs to competing commercial concerns etc, and protects the photographer too, by ensuring that there aren't any of those nasty rights grabs, demands for free pictures or control of reproduction.

What about outside music?

As many photographers will be able to tell you, unfair contracts are not limited to bands and music.

Editorial photographers all over the UK, (actually the world), are getting clobbered by unfair work conditions in the form of over zealous contracts, and inevitably they are presented as - 'sign or don't work'.

When Johnston Press made so many of its staff photographers redundant, and offered to take some of them back on as freelance workers, there seemed to be little in it for the photographers. They lost the security of their paid job, company vehicle, company equipment, paid holidays, sick pay and simply found themselves being asked to do the same job for less money, a lot more expense, and they were still expected to sign away they rights to their own work!

     "You irrevocably waive any rights that you have or may in future be entitled to under the Copyright Designs and Patents Act 1988 and any other moral rights to which you may be entitled under any legislation now existing or in future enacted in any part of the world, in respect of the work provided by you"

Barcroft Media (an international media content company based in London, England.) made this part of an agreement with contributing photographers:

"Photographer agrees to work for Barcroft as an independent contractor, providing photography-related services upon assignment from Barcroft.   Photographer agrees to transfer all photographs to Barcroft immediately upon completion of an assignment. Photographer further agrees not to sell any image taken during the contracted event to any other person or business without Barcroft’s express written permission."  

"All of Photographer’s work while on assignment for Barcroft will be considered work-for-hire under the United States Copyright Act of 1976.  All photographs and images, inclusive of electronic files and other materials related to them, are the property of Barcroft."

Work for Hire is of course a US phenomenon, and under UK law the photographer is still regarded as a freelance and therefore retains copyright. To demand copyright in this aggressive manner is totally counter to the spirit and legality of the UK's Copyright, Designs and Patents Act 1988

 A National Magazines contract also has a rights grab as one of its main clauses:

"ALL RIGHTS" means National Magazine acquires the entire worldwide copyright in the material and all other intellectual property rights in the material for all uses including but not limited to all rights to use the material in any and all electronic and digital formats and for use on the Internet Magazine web sites and any future medium for the full period of copyright therein and all renewals and extensions thereof and all rights of a like nature wherever subsisting. In the respect of Photography this includes all images shot during the commissioned assignment and if requested all images must be supplied."

The telegraphmediagroup have a similar clause as part of their terms and conditions:

"We and those authorised by us, shall have an irrevocable, assignable licence for the period of copyright in such work to use, and exercise all rights in, any such work in any publication or service and in any current or future media worldwide,"
 EMAP and EMAP active:

"By signing and returning this agreement to us, you irrevocably and unconditionally assign to us by way of present assignment of present and future copyright, the entire copyright in the commissioned works throughout the world (including any amendments and extensions to that copyright).  You waive an and all moral rights you have in the commissioned works."

Why is it that publications seek 'all rights' in this way? 

Clearly publishers recognise the value of the photographs supplied.  Under normal circumstances a staff photographer who is paid by a publisher to work for a magazine or newspaper, or publishing group, by virtue of being employed has the copyright of his work related material vested in the company. The company pays wages, holiday pay, sick pay, travel expense (usually a vehicle) supplies photographic kit (not inexpensive), and all the expenses incurred whilst undertaking assignments.  A freelance on the other hand gets paid a commission fee for the assignment, or when the work is submitted speculatively a fee for the use.  Usually subject to a minimum, and the larger the picture reproduction, better the position etc., the greater the fee.  A freelance commission is traditionally submitted on a 'first use' basis.

Some photographs have a greater value than simply this 'first use', and a photographer following a good business model will want to exploit such value in the form of secondary and subsequent sales. Clearly, not every photograph will sell in this way so it is a welcome extra for a photographer when such an opportunity occurs.

Occasionally, the publication will want to use a photograph a second time to illustrate a similar story on a later date, and it is almost always more cost effective to use a picture used before at a discounted rate than commission a photographer to cover the event, occasion or person again.

Photographs from a photographer's stock archive are usually less expensive to licence than commissioning a photographer to cover an event, and sometimes of course a particular instance is not repeated. Photographs of say the 'Cantona kick', or 'the first streaker at Wimbledon', have a value because of their rarity.

Sometimes the (unnecessary) requirement to acquire 'all rights' are down to the desire to sell on the photographs to third parties, and deliberately cut out the creator from any remuneration gained. Something traditionally the photographer has been able to do to boost his or her own income.

Others might put it down to corporate laziness (or greed) in that if one only has images in one's own photo-library that are licence free, then no one has to 'waste time' contacting photographers, or indeed paying for the extra often unconnected uses. Saves staff time and reproduction fees, and the only person to lose out is - the photographer.

If a multi-million pound business makes an extra couple of thousand pounds from a photographer becasue they don't pay subsequent reproduction rights, or because they syndicate a few sales, the advantage to that company is totally insignificant.  

For a photographer to lose those few thousand pounds can be a sizeable percentage of a year's profit, in many cases, twenty or even more percent. 

Does it sound fair?  

Is it right?

It is appalling when one sees businesses like publications, that are reliant on their content providers squeezing those suppliers, for every last drop, for no reasons other than they think they can, and it is a few more pennies to the shareholders.

All creators, whether they are writers, musicians, photographers, sculptors, painters are all easily exploited by the ruthless and the cynical. It makes sense in this increasingly business-led world for them to work together and support each other.  

How much worse is it when you see one creator exploit another for no reason other than greed?

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