Two bands, less than a week apart, found themselves in the midst of heated exchanges with photographers and the photography community at large.
First, the band Red Jumpsuit Apparatus used a photograph taken of the band’s guitarist on their Facebook page. When the photographer demanded that the image be removed, the band said that he had “no legal claim as the photo is credited and not posted for a monetary gain and features our likeness and image.”
After the exchange became a heated topic on photography forums, the band eventually backpedaled but then posted a separate update that said, “We believe ALL forms of art should be FREE!” with an announcement that they were making their discography free on July 4th.
The band later amended the statement to read “We believe most forms of DIGITAL art should be FREE!”.
Just a few days later Shawn Hamm, the tour manager for the band Three Days Grace, posted on Twitter and Facebook saying that “If you’re a concert photographer, listen up! It’s BS all these “photographers trying to sue bands these days.” He went on to say that if a band uses to a photo taken of them with watermark and credit attached on social media, the photographer should be grateful that the band is promoting his work and not threaten to sue them.
He also encouraged bands to force photographers to sign waivers of rights for photographers the get access to shows.
While the two incidents have captured headlines, they are hardly the only incidents of bands trading barbs and threats with photographers.
In 2012 photographers organized a boycott of The Stone Roses after the band agreed to pay only £1 for the rights to photographer’s works. That same year Alter Bridge publicly refused to pay a photographer for his work and created a firestorm on social media.
While there have certainly been times bands have stood up for photographers, such as The Cortege standing up for a ridiculed photographer, the climate between photographer and musician seems to be more hostile than ever.
So what happened, when did a symbiotic relationship between photographer and band so routinely turn to open blows? The answer is long and complicated but the relationship between photographer and musician has changed, likely forever, and old understandings have been thrown out the window.
Many of the battles and disagreements between musicians and photographers center around the issue of likeness.
For musicians, their likeness and image is a key component of who they are as artists. Their face, their name and their reputation are crucial to their careers and they represent a major draw for the photographer. After all, while the photographer is definitely hoping to take some interesting photos, those images are made more valuable by the fact that they are of a particular musician, especially if they have an established fan base.
Some musicians see that as the photographer exploiting their name and image without giving anything back in return.
Photographers, on the other hand, see the work that they provide. The see the hours spent preparing for the concert, the thousands of dollars in equipment that they’ve bought and the years of practice that they’re bringing to the shoot. To the photographer, they are working just as hard as any of the musicians and deserve just as rightly to get paid for their efforts.
While these issues have always existed, they’ve historically not come to blows. Most concert and band photographers were either hired by the band explicitly to shoot the event(s) or were hired by major media outlets as part of event coverage. Either way, the relationship was explicit, either through contract or press pass.
Today, almost anyone is a concert photographer. Ranging from a random concertgoer with an iPhone to professionals who shoot the event with permission. That makes the relationship much more informal and less bound by established agreements and more bound by implied licenses and mutual respect.
But when bands and photographers view the implied license between them differently, as in the cases above, problems arise.
In fact, the real question isn’t why bands and photographers have been battling as much as they have, but why they haven’t been battling more.
Fixing the Problem
On this particular subject, copyright law is very clear. The photographer is the copyright holder in the image, barring some other agreement. Furthermore, since copyright can’t be transferred without a written and signed agreement, simply putting up a sign or making an announcement is not enough to enforce a transfer.
This means that, if a musician or band uses a photographers image without the photographer’s permission, then it is an infringement of the photographer’s rights, even if the photo in question contains the musician’s likeness.
But the photographer also has limitations on what he or she can do without permission from the musicians in the photos, especially as it relates to commercial uses. This is especially true when the concert is held in what is considered a private place. However, the laws here are based on privacy and literally vary from state-to-state making a thorough conversation much more difficult.
This means that photographers and musicians have to work together for either to have legal certainty. But while it sounds easy to say every photographer should talk with the musicians they photograph and work out the copyright/publicity issues beforehand, that is far from practical, especially when many photographer shoot a dozen of sets in a single festival and each musician might be captured by dozens or hundreds of photographers.
Instead, social norms might be the best approach in the short term (even if they aren’t legally binding) and this is where groups like the American Society of Media Photographers and the American Federation of Musicians can help. While they can’t and won’t be able to speak for every photographer or musician, high-level and transparent talks about these issues might jump start other conversations that can lead to a greater understanding.
While there will always be outliers, one of the looming threats to the cooperation between musicians and photographers is the lack of general consensus, which is something that has to be reached if we’re to avoid legal altercations in an informal working environment.
The democratization of photography has drastically changed the relationship between musicians and photographers. What was once a rigid arrangement set up by contracts and well-established boundaries has become an informal one. Social media and Web publishing has further complicated things by giving every photographer a potential audience and a chance to interact with their subjects after the fact.
The fact we haven’t been more inundated with legal battles and disagreements is a sign that everyone, for the most part, is working with one another pretty well. But the recent dustups do show that there is an underlying tension that needs to be addressed.
These issues aren’t going to disappear. In fact, they are only going to get worse as more and more people take up photography as a hobby or profession.
Hopefully, these recent battles can serve as talking points and get a broader conversation going about what the relationship between musician and photographer should be like moving forward.
There are no easy answers, but without conversation and understanding, we are doomed to repeat the same battles again and again.