Photography, book publishing
This update is from George Chin: George has worked as a music photographer for the past 30 years and George has worked officially with the Rolling Stones, Guns n’ Roses, Whitney Houston, Aerosmith, Iron Maiden and Bon Jovi, among many others. He is now studying for an LLB (Hons) at the University of Law in London. George runs a boutique photo agency (www.iconicpix.com), largely based on his image archive and those of other music photographers. He can be contacted by email at email@example.com
COPYRIGHT / CONTRACT: On the 2nd April, the music photographer Pat Pope, posted an open letter on his website (www.patpope.com). It began – “Dear Shirley, Butch, Duke, and Steve” – the names of the band collectively and professionally known as the Garbage. He goes on to state that he had been approached by their management company who explained that the band were working on a book for “self release” next year and they wanted permission to use some of his photographs in return for which they will give him a “proper credit” due to a “financially limited” budget; the implication being “we’re not going to pay you”. Aggrieved at this slight, he posed two questions to the band – 1) do they, as “artists and musicians” believe in artists being paid for their work, and does that include photographers? And, 2) are the band happy that someone in their employ holds the view of “zero for photos” which could translate to “zero for music” in a future context? He closed with a categorical “NO” to the band using his photographs for free and made a further point in a postscript that on the artwork for their ‘Absolute Garbage’ album (2007), the “record company just used my work without even asking”.
On the internet, word spreads fast. The next day, 3rd April 07.42 am, Garbage posted a response on their Facebook site signed by all four members. In it they revealed they requested permission for “one photograph” for the book to celebrate their 20th anniversary and that Pat Pope had “ALREADY” been paid for the whole shoot in 1995. They also confirmed that the book is a self-financed project and that they are now an independent band on their own label. In answer to the first question, they replied that they “believe completely in the concept of the artist being compensated fairly whenever possible”. To the second question, they replied that they decided to “simply ask the photographers themselves”, and “Any refusal of permission would be respectfully accepted and no further questions asked”. So there is no management bogeyman, just the band who signed off their letter.
The final word by Pat Pope was posted on 7th April with the immortal opening line from ‘Sympathy for the Devil’ (Rolling Stones) .. “.. ’Please allow me to introduce myself’.. I am Pat Pope”. (I note that no credit was given). This was another open letter in which he admitted making a mistake with the first letter and wanted to clear up some “misconceptions” by explaining that there were three reasons why he went public with the first letter. First, abuse of the power relationship between artist and photographer; second, that in the dynamics of the power relationship, he was given two choices – permit or not to permit with an implied threat of blacklisting and no more work; and third, that as a fan of the band he honestly, perhaps naively, believed they were not aware of what was being done in their name and he wanted to reach out to them. He then made a heartfelt plea to all fellow creatives to join a campaign ‘Stop Working For Free’ whilst contradicting himself by saying he had given his time freely to a number of bands and charities.
As a professional photographer in the music business for the past 30 years, and now studying for an LLB degree, I felt that I might add some insight into the background of what takes place when a photographer is commissioned by a record company to do a session with a band. I do not know Pat Pope personally, but I know of him. Our paths have never crossed; maybe we shared the same photo-pit at concerts/festivals and that is probably my only connection with him. I read his open letter with interest and can fully understand his frustration and anger. However, there are relevant details lacking which the reasonable internet reader/commenter may not be aware of.
Garbage allege that Pat Pope has been paid for the photographs. Therefore the elements of offer, acceptance and consideration, on the facts, would appear to have taken place and this has not been disputed by either side. That said, the contractual detail of this arrangement seems to be ‘up in the air’. What were the terms of the agreement under which the original session was done? What was the original purpose for the use of the photographs -answers to these questions would goive some clariyt to what rights were licenced or assigned at the time. Who were the parties to the contract? Was it the band’s record label at that time or was it the band? Or was Pat on assignment to shoot the band for a publication? More questions – but so far unanswered questions.
There was no mention of an agreement, written or otherwise. Was it a sale of prints for a non-specific use with no written agreement (or written licence or assignment)? This sometimes occurs when a photographer is commissioned by a publication and the label purchases a set of prints for press use. An invoice is generated, paid, and no formal agreement is signed. Then years later, the photos are used on re-issues and the photographer cries foul, that wasn’t the deal! A bit of detective work might help to establish what could have happened. On the facts, the photographs were used on the ‘Absolute Garbage’ album in 2007 which was a greatest hits album compiled and released by Geffen (Universal) imprint Almo Sounds. It is not in dispute that payment was made for the session in 1995. At that time, the band were signed to Almo Sounds. In the old world of photographic film, when a photographer did a shoot for a client, the photographs were delivered as negatives or transparencies or both. So, putting two and two together, were Almo sounds the original contractor/employer for the photographic shoot in 1995? If so, the photographs would have been delivered to them.
Fast forward to 2007. Almo had already been sold to UMG-Universal and images from the 1995 shoot were used on the 2007 ‘Absolute Garbage’ album. So, it can be deduced that the photographs were at that time in the possession of Almo/Universal and it would not be unreasonable for the label employee or legal department to assume that they were 100% owned i.e. all rights, which is the practice of Universal when commissioning photographers or buying in photographs. When photographs e.g. prints, are licenced; the photographer usually retain the negatives and originals; whereas if the negatives are in the possession of Universal, the conclusion to be reached is that the session was an all rights buyout. Without any detail of the original contracting agreement it is difficult to draw any definitive conclusions one way or the other. From Garbage’s letter on 3rd April 2015, the photographs now appear to be in their possession or they have access to copies of them. However, Pat Pope took umbrage at his photographs being used without his permission on the Absolute Garbage album in 2007 for which he has not been paid any extra remuneration; so there may be residual rights he still has a claim to. Ownership of the rights in the photographs has not been established and without an agreement, there is no way of knowing.
The present situation is that the band requested permission to use some of Pat Pope’s photos in return for a “proper credit” and no mention of any consideration for a licence to publish. In my experience all book publishers require clearances; not only of the people portrayed in the photographs used in the book, but clearances by the photographers. This is despite the band or artist or whoever, owning the rights in the image. Where no ownership is established, disclaimers are always published somewhere in the book where the photographic credits are listed. The procedure of obtaining permission is standard in the world of book publishing, and a fee is usually negotiated for the licensed usage to include a waiver and indemnity clauses. Where no fee is agreed, the latter are standard requirements to any licence. The fact that the band’s management asked for permission indicates that it could have been part of the initial process in gathering material for the book. However, we do not have sight of the email and what is available as evidence is Pat Pope’s open letter that the email implied “we’re not going to pay you”. Self-publishers and low budget publishers also seek permission for a licenced usage of photographs together with an indemnity otherwise they could be stopped by an injunction from a disgruntled rights owner.
A Final word. In commercial transactions, pleading poverty can be part of the negotiating process and the band have openly stated that they ‘believe in the artist being compensated” (in response to Pat’s first question). Also, they ‘adore’ his photographs of them at a ‘special time’ in their career. We may never know the outcome without another open letter.
A word of free advice Pat – get it down in writing, don’t sign anything you don’t agree to, and keep a copy! Good Luck for the future!
Pat Pope’s open letter