by Justin Edwards
I was recently interviewed by Andrew McMillen for a story that was published on The Vine about the photo release forms that photographers have to sign, mainly at the festivals and the larger stadium/arena gigs but increasingly at much smaller shows:
“I didn’t sign either contract,” says Brisbane-based photographer Justin Edwards, who was covering the festival for TheVine.com.au, in reference to the Tool and Rammstein photo contracts. “The Rammstein one I was debating about doing, because you still own the photos, but they want to use them on their website. And you think, ‘Well, you’re second on the bill, and you’re getting paid an awful lot of money; I don’t really want to give you something for nothing’. But it wasn’t as bad as Tool’s contract. There’s no way I’d sign that.
“Some people, like Tony Mott, say that if they don’t get a copy and they don’t have a lawyer present, then it’s not a valid contract,” he continues, “but I’ve always taken [the view] that it is, because you don’t need that for a contract to be legally binding. It’s a matter of putting your name to something that, in the future, might come back to you. Especially now, because they’re asking for more information [on the contracts]. You used to just sign it, put your name and who you were photographing for. Now they want your email address and phone number. I don’t do [music photography] for money, but it’s the principle of the thing. It’s almost like it’s them, as an artist, being disrespectful to you. And you think, ‘Screw you; if that’s your attitude, I’m not interested in photographing you’.”
I’ve walked away from photographing a number of bands over the last couple years, including Queens Of The Stone Age, Carol King, Cheap Trick, Peter Hook and Tool, because I’ve suddenly been presented with a contract they want me to sign which assigns copyright of the photos I take over to the band. If I sign, they own my photos. If I know in advance that an act has a rights grabbing contract (Foo Fighters, Stone Temple Pilots, Coldplay, Muse, KISS, Stevie Wonder, The Cult etc) I don’t request to cover the show. What can I say? I have principles and I like to stick to them, even if it means missing out on getting paid to photograph a gig.
It’s highly unlikely at the moment that a band is going to demand their photos, although it’s not completely unheard of. However, the argument isn’t about whether Foo Fighters or Stone Temple Pilots are going to come knocking demanding that you provide them with copies of their photos but the much wider implications.
If you go on any music photography forum and ask when the “First Three, No Flash” rule came about, you’ll get at least a dozen different bands who were allegedly the first band to bring it in and just as many different reasons for why it was brought it. It was Led Zeppelin, it was photographers fighting in the pit, it was Blondie, it was not wanting photos showing her makeup running when she got sweaty, it was Eric Clapton, it was Bruce Springsteen, it was Rush, it was The Rolling Stones. No one can even agree on the year when it was first used. Now it’s industry standard practice, even though no is quite sure why they’re doing it – a classic case of doing something because that’s the way it’s always been done.
I’m not sure if I’ve ever seen it asked, but following on from “first three, no flash”, I’d say it’s extremely unlikely that anyone would be able to pinpoint the first time a photo release was used or the first time a copyright-grabbing contract was used and who the bands were.
Once there was no “three songs, no flash” rule, now it’s industry standard in all but the small, local shows. Once there were no releases. Once there were no copyright-grabbing contracts. In the last couple of years there has been a noticeable increase in photo release contracts and an increased erosion of photographers’ rights. I’ve experienced this first hand. The Zoo in Brisbane, probably my favourite venue in the city, used to be a camera-friendly place and you’d never see a contract from the bands they put on. Now you can only take a camera in if you’ve been approved and accredited. The first time I ever had to sign a photo release there really took me by surprise, partly because I’d been photographing bands there regularly for over two-and-a-half years without even a sniff of a contract, partly because it was for Amanda Palmer, who I’d always heard was very photographer-friendly. Fast forward a few years and I think I’ve had two or three contracts to sign in the last half a dozen gigs I’ve photographed at The Zoo. These aren’t massive, high profile bands but bands like The Hold Steady and The New Pornographers; bands with but loyal, dedicated, but moderately sized fanbases, much more your average band than global superstars.
The contracts I used to see would to generally put into writing that you agreed to the “first three, no flash” and that the photos weren’t to be used for commercial purposes (e.g. you couldn’t print up your own T-shirts or calendars etc and sell them) and maybe some safety issue information (you photograph at your own risk, follow security’s instructions at all times, etc). Now the clauses are much more complex and onerous, often stipulating in great detail what you can and can’t use the photos for and how they have to be used. It’s not uncommon for contracts to specify that the photos can only be used once and only in the publication you’re photographing for and also put time limits on the use of the photos (typically something like within seven days for a newspaper, 30 days for a magazine). Laughably, some photo release contracts are now inserting clauses that prevent you from the details of the contract public, including publicising whether they are copyright-grabbing (although it’s a ludicrous situation where you’re only bound by the terms of the contract if you sign and are free to tell anyone you like about the nasty clauses if you don’t sign). Whereas once photo release forms were reasonable and their conditions understandable, they have become less so over time.
Based on all this, it’s clear that much like “first three, no flash” copyright-grabbing photo contracts will become ‘industry standard’. It might take five, 10, maybe even 20 years, but eventually it will become a ‘standard’ clause in photo release forms. The practice is becoming more and more widespread, it will happen.
And once it does happen, where will it go after that? To me it’s obvious. If you sign a copyright-grabbing contract, instead of being escorted out of the venue after three songs, as happens now at the big shows, you will be escorted by the band’s representative to a laptop and told to download a copy of the photographs you’ve just taken onto the hard drive. [I wouldn't put ideas into people's heads if I were you, Justin - Ed]
As ridiculous as it sounds, why wouldn’t they? They’re their photos, not yours. They own them, not you. They’re just taking their property, and if you signed that contract you’re powerless to stop them. What are you going to do? Refuse? Just walk out? At best you’ll be blacklisted from shooting any more shows through that promoter/act’s management. Legally you’ve got someone else’s property and they’ve got the bit of paper that you’ve signed saying so. The only surprise is that they don’t already do it and if they’re putting a rights-grabbing clause in their release form they’re crazy not to be doing it. I know that if I was managing a band, had a copyright-grabbing clause that was in my photo release, I would be milking it for everything its worth: the possibilities to gain serious financial gain from it are so massive I’m not sure if managers who use such a condition in their contract know what they’re getting when they get photographers to sign away their rights. Eventually they will realise. One manager will start and others will follow.
The short-term gains. You could be really savvy and put some effort in. You could do some advance research, you know what photographers are going to sign their copyright away, you could check out their internet portfolios (any photographer who doesn’t have some sort of online portfolio isn’t worth the time of day) and decide what photographer(s) is going to give you the best work. You make them download their photos after the first three songs before any of the other photographers, preferable on a second laptop, then you review them, pick the best few and get them printed out in the next hour or so before the end of the concert and have a few available at the merch desk for the audience to see after the show. You could be really on the ball, get a few printed out and get the band to sign a few in the few minutes they’re off stage before the encore. Photos of the gig, THAT very gig, signed by the band, premium merchandise at a premium price. Alternatively, you just have a few printed from previous show if you can’t manage to print out any from that night’s show, and you can at least advertise them at the merch desk as being for sale direct from the band’s website, even give out flyers as everyone is leaving. It isn’t hard to set-up an online gallery with online purchases; they are companies you can easily do this through.
In the medium term there are, of course, the usual avenues for photos; CD and DVD artwork, books, calendars, T-shirts. As well as signing over copyright, these contracts generally also sign over moral rights. This means that they don’t have to even credit you; they could use a load of your photos in a book or a calendar and they don’t even have to give you a single credit as having taken the photos they’ve used. In signing over your rights, you don’t have any say in what they use them for, they don’t have to ask you, they don’t have to publicise your name. You don’t even get to tell your friends, “Look, I took this photo and there’s my name to prove it”.
And then there’s the long-term, the final legacy of any working professional photographer, their retirement; their photographic archive. Tony Mott recently had a photo exhibition in Brisbane where he was selling limited edition prints, numbered and signed by himself for between $400 and $1,000 depending on size. Limited editions are the art industry’s great rip-off as there’s no limit to the number in any series (although obviously the smaller the print run, the rarer it will be, the more you can charge for it and the more it will be worth in the future) and you can change the dimensions ever so slightly to create a whole new edition. Tony Mott’s prints at this exhibition were in fairly small editions of 25 or 50. Let’s say in 20 years time the Foo Fighters have their own touring exhibition and print up the best 40 photos, in a limited edition of 100 for each and have them at four sizes, have 10 of the 40 photos at each size, and charge $400, $600, $750 and $1,000 depending on the size (I think this was the pricing used by Tony Mott), and each is numbered and signed by the whole band. Now do the maths:
|Size||Number of Photos||Limited Edition||Price||Total|
Assuming they sold all the photos they could make $2.75m for themselves. And that’s just one print run, they could change the size of the print and do another limited edition of 100 for each photo, and basically keep going. Easy money isn’t it? Photographers who are signing away their copyright are giving this away to the band for free, and not even for the thanks of a credit. Not only are they giving the band a license to print money, they’re also preventing themselves from ever being able to profit from their own work in the long-term future.
Maybe it’s all too late and we’re far too far down the path to copyright-grabbing contracts becoming inevitable. I like to think not, the practices of Norwegian and German photographers, where there is more of a united front, both from photographers and their commissioning editors, who consider a universal boycott approach works as they say they have fewer restrictions than other countries gives me some hope.
I used to think that as someone who does this for a hobby and has little desire (most of the time) to be a full-time photographer, I had a duty of care to professional photographers. The reality is that people who call themselves professional photographers are the worst of the lot; a sniff of money, however small, and they’ll sign anything that’s put in front of them.
So these days there are two primary reasons why I won’t sign rights-grabbing contracts. The first is a duty of care to the music photographers who come after me. I started photographing bands by taking my camera along to small, local shows and built my way up to photographing better known bands at larger venues and high profile festivals. I want photographers in the future to have the same opportunities as I have been afforded, not to end up finding it hard to do something they have a passion for without having to do it under a legacy of debatable conditions left to them by their predecessors. If copyright grabs are the future, thanks to the actions of the current crop of music photographers, then at least I didn’t endorse it and did what I could to prevent it happening by walking away from anyone who wanted me to sign over my rights.
Following on from this, the second reason is that I own everything I photograph; they’re my photos and no one can ever take them away from me. Sure, if you sign away your rights you can tell people about all the amazing photos you took of the band, you can out them up on your website or on Facebook, all your friends can tell you what an amazing photographer you are, but no matter how hard you try to convince yourself that it doesn’t matter, they’re not your photos, you don’t own them and never will, there’s a bit of paper with your name and signature on it saying that you gave them away for free.
And that’s why I don’t sign copyright-grabbing photo contracts.