Seeking the middle-ground for rights-grab concert contracts

Rights-grab concert contracts are making headlines again. Following last month’s furore over Taylor Swift’s contracts, a Washington newspaper has now spoken out over the Foo Fighters’ contract, and in fact decided to not send a photographer to their concert in protest.

These contracts have been around for years, and every now and again someone kicks up a fuss, but the fuss usually just circles around the photography world for a few days and then dies down. What’s different now is that people outside journalism are taking note, and the issue is getting mainstream attention. Lots of people are putting pressure on the artists to scrap these contracts, while lots of other people are defending the artists and taking the position that “it’s their house so you follow their rules”. Both sides of that argument have merit.

Last year I was asked to sign a rights-grab contract for one artist at a festival where hundreds of artists were performing, and declining to sign got me banned from the festival in future. Now obviously that’s an extreme example, but as someone who has actually been ‘harmed’ by one of these contracts, naturally I’ve given them a lot of thought. Here’s my personal view, and I’d like to think it’s a fair and realistic one. It’s also a position that some other photographers aren’t going to like.

When an artist pays for the hire of a facility, whether it’s a village hall or a football stadium, they have a right to decide who comes in. The vast majority of people in attendance will have entered in to a simple contract with the artist: You buy a ticket, they let you in. The artist, or someone acting on their behalf, also enters in to lots of other contracts, such as with the companies that will construct the stage, run the lights and sound, plus catering companies, security, probably medical teams, etc. Lots and lots of contracts.

But then along comes someone with a camera. For a start this person expects to be allowed in for free. They also want to be allowed to take photographs of the artist. And because the photographer works for a newspaper, the artist allows them free entry, partly as a courtesy, and partly because the press coverage is good for them.

Here’s where it gets tricky: Once the pictures have been used in the newspaper, the photographer then expects to be able to do whatever they want with their photos. See, normally if we take a nice photo of a duck, or a rainbow, or a sunset, we can sell that photo. We’re accustomed to having that right. But also normally, nobody wants to buy those photos. A picture of Taylor Swift or the Foo Fighters, though… now that has value. Photographers aren’t too keen on losing their traditional ‘right’ to sell their photos.

The tug-of-war between photographers and artists has reached the point that the arguments on both sides have become absurd. Photographers want it all their own way because blah blah blah. Artists want it all their own way because blah blah blah. I’ve honestly stopped caring what each side says. It’s a lot of noise. Polarised gut reactions.

Obviously the artists are “winning” at the moment because they’re in control of the situation, and perhaps that in itself should tell us something. Face facts, fellow photographers, if Taylor Swift or the Foo Fighters never granted another press photographer access to their concerts, it’s the photographers that would feel the pain, not the artists. These artists have their own photographers anyway, and they put out their own photos to newspapers and magazines. Ban photographers from concerts and sure a few newspapers would take a stand and refuse to cover those concerts — for a little while. Soon enough the fuss would die down, though, and those newspapers would start using the hand-out photos and everything would be back to some kind of normal, only with photographers cut out of the loop.

For their part, though, the artists are being quite unreasonable. Requiring pre-approval of photos goes against the age-old principles of editorial independence, and if the artist is allowing editorial coverage then they should respect the principles that have guided our industry for centuries. (And yes I’m well aware that some newspapers kowtow to commercial influences, and “editorial independence” can be disregarded in less time than it takes to say the words, but we’re talking about the principle here, and the principle will survive long beyond any newspaper in existence today.)

Also requiring photographers to surrender their copyright is a bit of a cheek. Yes it’s the artist that gives the photo its value, but if it’s a good photo then that’s due in part to the photographer’s skill. There’s no good reason why some rights can’t be granted to the artist without completely denying the photographer their own rights.

Allow me to give you an example of how I personally think concert photography contracts should be written. I’m not going to attempt the legalese, just plain English:

Currently: Photographer will submit photos to artist for approval prior to publication.
Should be: Photographer may use any photo for editorial purposes.

Currently: Photos can only be used one time and specifically for reporting on the concert where they were taken.
Should be: Photos can be used for any editorial coverage of the artist or the venue.

Currently: Photographer must surrender copyright to the artist.
Should be: Photographer retains copyright but grants the artist rights to use the photographs for non-editorial purposes. Photographer can’t license the photographs for commercial purposes.

Now some photographers reading this will spit their morning coffee over that third suggestion. They’ll be imagining artists selling their photographs on t-shirts, putting them on posters, using them in books. Why shouldn’t the photographer get paid for their work being used like that?

The simple answer is: Fairness.

Just think of the huge amount of time and work and money that has been expended from the time a few kids got together to form a band, to the point when they’re standing in front of 100,000 paying fans… and you with your camera. If they’re kind enough to let you take pictures of them at work, in a venue that they’ve paid for, then it hardly seems too outrageous that they want to use your photos to promote their work in future.

At the moment, a lot of photographers want it all their own way. They want free entry to a venue, unrestricted access to the artist, and full rights to sell their photos. Over time we’ve accepted that we don’t get unrestricted access, we get access to the pit and the first few songs. That’s fair. And over time, if newspapers want to continue covering concerts, then we photographers will have to accept that the artists aren’t being unreasonable in asking for the right to use our photos. At the moment they’re just asking for too many rights, so that’s where they need to check themselves.

In summary…

Photographers: Get off your high horse.
Artists: Stop abusing your power.
Everyone: Be excellent to each other.

ps. Even now, when I actually feel I have enough of a thought-through position to write about it, I’ve still got nagging doubts about artists being denied a veto on photos that are embarrassing or otherwise show them in a bad light.

There was a notorious case a few years ago when a web site published photographs from a Beyonce performance that showed her looking silly and in some cases quite ugly. Her management asked for those photos to be taken down, and the internet went in to meltdown with thousands of people sharing the worst photos of Beyonce they could find. But was asking to remove those photos really so bad? After all the selection of photos didn’t fairly represent how Beyonce looks, or what people could expect to see at one of her concerts. Take hundreds of photos of anyone and you’ll be able to pick out a few bad ones that make them look stupid.

It was editorially bankrupt for the web site owners to publish the unflattering photos of Beyonce, but of course when challenged they hid behind the much-abused shield of editorial independence.

I’m inclined to say that my own view, as a human being in addition to being a photographer, is that it’s not unreasonable for an artist’s photography contract to say something along the lines of “don’t publish any photos of me looking stupid unless I actually do something stupid”. Word it however you want.

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