COPYRIGHT
Artistes, photography

 

By George Chin.

 

Hot on the heels of Taylor Swift’s open letter to Apple on Sunday June 21st,2015 – UK music photographer Jason Sheldon published an open letter to Taylor Swift admonishing her for being hypocritical. In evidence, he published a 2011 Photography Agreement for photographers who were given access to photograph her during the first two songs on her concert dates on that tour.
In a mild parody of her letter, he wrotes “…forgive me if I’m wrong, but if you take points 2 and 3 in that contract (which is provided to Photographers who need to agree to those terms before they are allowed to do their job in photographing you for editorial outlets), it appears to be a complete rights grab, and demands that you are granted free and unlimited use of our work, worldwide, in perpetuity.  You say in your letter to Apple that ‘Three months is a long time to go unpaid’.  But you seem happy to restrict us to being paid once, and never being able to earn from our work ever again, while granting you the rights to exploit our work for your benefit for all eternity….”
A UK spokesperson for Taylor Swift responded: ‘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. 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. Every artist has the right to and should protect the use of their name and likeness.’
This statement was contradictory as it referred to the 1989 World Tour whereas Jason Sheldon’s letter referenced the agreement for 2011’s Speak Now World Tour.  Within a day, a copy of the Photography Agreement for the 1989 World Tour surfaced on the internet, leaked by photographers who wished to remain anonymous.  In Clause 5 it threatens assault, possibly battery and actual bodily harm, and criminal damage for those who breach the conditions.   By signing the agreement, you are consenting.  Would this stand up in court as a legal defence?  Little wonder that those who blew the whistle wanted to remain incognito.  (Click here for a copy: http://petapixel.com/2015/06/23/taylor-swift-photo-contract-break-our-rules-and-we-can-break-your-gear/).
So what are the issues?  Three questions need to be answered.  The first question should be who owns the copyright in the photographs?  First ownership in copyright in the UK is granted under the Copyright and Designs Patents Act 1988 s.11(1) to the creator of the artistic work; subject to whether the work has been created in the course of employment, then the employer is the first owner (s.11(2)).  Thus, photographers taking photographs of Taylor Swift are the owners of the copyright in their photographs, providing that they are not employed by her as an employee (for hire).  By signing agreement, the photographer agrees to its terms and conditions.

 

Clause 2 of the ‘Authorization Form’ sets out the permissions – a ‘one-time use only for news or information purposes within the body of related text and on the website of the publication, until the end of 2015.  It also lists the restrictions: (a) no duplication or reprint in any other publication, (b) not to be republished in the same Publication or any other edition; (c) no commercial exploitation, or (d) used in any other manner or means now or in future, without written consent.  And separately, an express provision that no use on personal or professional websites or social media without prior written approval.
Clause 3 grants Taylor Swift and her multiple 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’.
Jason Sheldon’s beef was that a freelance photographer should be able to re-licence his images to other publications (for editorial use) in order that he can earn a living from his copyright instead of being paid once for a one-time use only.  Ceding the ‘unlimited’ rights to ‘publicity and promotion’ would have a direct effect on his ability to do so.  It was the use or restricted use of the copyright which was the issue in Sheldon’s call on hypocrisy i.e. not being paid for his work as an artist, granting others the unlimited right to use his photographs in perpetuity, for no remuneration whatsoever.   This was the same point being made by Ms Swift in her letter to Apple.

 

In contrast, in the interests of balance, the Photo Release for the Rolling Stones on their 50th Anniversary  dates at the O2 in London in 2012 is a little more reasonable. This is a band which has 50 years of rock and roll behind them, and who have sold many more millions of albums than Taylor Swift can count on her hands and feet.  The Rolling Stones operate a strict policy of limiting the number of photographers, but each photographer, once approved by their PR, is then required to sign the photo release which is a one-page document consisting of two paragraphs.  The photographer agrees in the first para that the photos taken are for editorial purposes and may be syndicated for such purposes only.  The second paragraph restricts the photographer from commercially exploiting the images, and allows photographer to use the photos in their own profession portfolio.  Nice and simple and meets all the requirements of photographers being able to earn a living from their images without encroaching on the Stones’ commercial activities.

 

The second question at issue was raised by the spokesperson i.e. does every artist have the right to protect the use of their name and likeness?  The ‘personality rights’ or the ‘right of publicity’ are already a legal right in the USA under state laws and hence the agreement is ‘subject to the federal or state courts of Tennessee’.  The rights are already recognised and protected.  In the UK and Europe, no such rights exist in law.  Therefore can Taylor Swift impose the jurisdiction of the state of Tennessee onto UK/EU citizens by consent?  Would it go as far as photographers being extradited to the USA to face charges for breaching Taylor Swift’s rights to her likeness?
The latest development was yesterday, June 30, 2015.  The Irish Times refused to publish photographs of Taylor Swift’s concert at the 3Arena in Dublin citing the restrictive contract.  Deputy picture editor Brenda Fitzsimons wrote that the terms and conditions are “exceedingly restrictive” and “not feasible for a working newspaper and website”.  Clearly the answer is – don’t sign the agreement and don’t publish!
If some are refusing to sign and those that do sign can only use the images once only, why is there a proliferation of images of Taylor Swift everywhere we look on the internet, in the printed press, magazines, blog sites, social media, etc..? What is the source and do they have ‘written approval’ and ‘written consent’ to derogate from the restrictions ordinary photographers are bound by?  A closer look at those images reveal that they are coming from one source and whom it would appear has an exclusive agreement to syndicate images of Taylor Swift that their photographers are allowed to take without any restrictions.

Viewed in this context, the ‘exceedingly restrictive’ agreement appears to have a dual purpose – to provide a commercial advantage to the image distribution agency with whom Taylor Swift has a tied arrangement to the distinct disadvantage of freelance photographers and other agencies in the relevant market of entertainment images. The final question therefore is – isn’t this behaviour anti-competitive and illegal?  Answers in an open letter to Taylor Swift !

 
© George Chin 2015
Sources

 

http://petapixel.com/2015/06/26/jason-sheldon-my-response-to-taylor-swifts-agent/

 

http://www.irishtimes.com/culture/music/why-there-s-no-photo-of-taylor-swift-s-gig-in-today-s-irish-times-1.2267332
https://junction10.wordpress.com/2015/06/21/those-in-glass-houses-shouldnt-throw-stones/
http://www.digitalspy.co.uk/showbiz/news/a655759/irish-times-refuses-to-print-taylor-swift-photos-due-to-restrictive-copyright-demands.html#~phbpOZDlEhJ3ct
http://www.diyphotography.net/major-irish-newspaper-didnt-photograph-taylor-swifts-dublin-concert-due-to-exceedingly-restrictive-contract/
EDITORS NOTE: Readers with an interest in this article may also be interested in George’s earlier article on the public spat between photographer Pat Pope and the band Garbage over the free use of his images (http://www.musiclawupdates.com/?p=6280) and also the recent decision from the Paris Tribunal de Grande Instance (TGI), a court of first instance, which ruled that a Jimi Hendrix photograph by photographer Gered Mankowitz could not be protected by French intellectual property law, as it was not original. More on the 1709 Blog here.

 

And more on the marvellous CMU Daily here http://www.completemusicupdate.com/article/cmu-beef-of-the-week-260-photographers-v-pop/

 

An update on This: Taylor Swift has drawn up a new contract with the help of  the US National Press Photographers Association . Swift, the organisation’s general legal counsel Mickey H Osterreicher said, “should be commended” for her reaction to accusations that she – and many other artists – were making it difficult for photographers to make a living from their work. This update is also from George Chin.
Now that Taylor Swift’s 1989 Tour continues on its dates through North America, the controversy surrounding the photography agreement and its restrictive terms and conditions was grist to the mill of those media organisations whose tails were up in the air.  This followed on Taylor Swift’s open letter to Apple Music calling for artists to be paid for their music which ended with the resounding plea: “We don’t ask you for free iPhones. Please don’t ask us to provide you with our music for no compensation”. Within a few hours, Apple Music had capitulated.
However, this left Taylor Swift open to criticisms of hypocrisy when it was revealed that the terms of the Authorization Form for photographers granted access to shoot the first two songs of her current tour gave Taylor Swift and her companies, the right in perpetuity to exploit all images by all photographers without consideration or remuneration.  Photographers were being forced to sign away the rights in their images “for no compensation” – a principle which she stood against.  This was highlighted by UK photographer Jason Sheldon who published an open letter to Taylor Swift on 22 June 2015.  Her, now silent spokesperson, waded in to defend the indefensible.  In the intervening weeks, the Irish Times refused to sign and publish (Jun 30, 2015) and when the tour hit Canada, the Montreal Gazette (Jul 8, 2015) notably refused on the grounds “The Gazette will not give anyone permission to injure its photographers or damage their equipment” in response to Clause 5 of the Authorization Form which required that Taylor Swift’s agents ‘confiscate and/or destroy’ devices if there is a breach.  Joining the Gazette in the boycott were La Presse, Le Journal de Montréal, Le Devoir, 24 Heures and Métro.
On 10 July 2015, Fortune magazine, the bible of corporate America, entered the fray and reported on the Montreal boycott.  This raised the profile of the dispute to a different level.  Investors, sponsors, endorsers, merchandisers, promoters and booking agents were all now aware of the possible fallout negative media coverage might have on the ‘brand’.   A damage limitation exercise appears to have been put in place.  The influential New York Times was not subject to the photo agreement and when The Washington Post covered Swift’s concert just last week, “the photo agreement was amended with permission from Swift’s people”.
On 16 July 2015, the National Press Photographer’s Association (NPPA) ; the powerful US organisation whose stated aims are to fight  “.. for the working news photographer … to earn a living from their craft”, published on their website the announcement that it was “drafting official comments to the United States Copyright Office regarding copyright protection of visual work”. Two of the questions they were seeking comments on from their members, are:

  • What are your biggest challenges to monetising and licensing your photographs?
  • What are your biggest challenges to enforcing your copyright?

The NPPA was also in the process of discussing what course of action they might take regarding Swift’s photo agreement when members of Taylor Swift’s PR team made it known that they were open to discussions.  Here was a timely opportunity to address the issues and avoid a possible national boycott in the USA and its repercussions.
With the help of Mickey H. Osterreicher, the NPPA’S general legal counsel, the revised tour photography guidelines agreement was released by Swift’s management and on the NPPA’s website on 21 July 2015.   The amended agreement is now called the ‘Photo Authorization Guidelines’ and they address photographers’ and publishers’ concerns simultaneously with those of ‘Team-Swift’.  The draft is being supported by 14 members of the NPPA, including the American Society of Media Photographers, American Society of News Editors, Associated Press, and the Society of Professional Journalists.
The new Guidelines permits photographers to shoot the first two songs, from a designated area, without flash. The use of the photographs are restricted to use by the publication and on its website for “news and information/editorial purposes” only; and explicitly no commercial use without prior written permission.  The previous agreement limited the use to a one-time use only by the publication and on its website until the end of 2015.
The previous express provision that photographers could not use the photographs on their websites or social media pages/accounts has been deleted; and now, only credited images used by the publication may be used on a photographer’s website and portfolio.
In place of the clause granting Taylor Swift the perpetual, worldwide right to use published photographs for publicity and promotion, is a ‘fair use’ provision at the opening which allows Taylor Swift to post published reviews on her social media accounts with “proper and full credit” to the photographer and emphasis that the ‘contract’ does “NOT transfer copyright away from the photographer or publication”.
The offensive Clause 5 which the Montreal Gazette strongly objected to has been removed and replaced with a mutual understanding that if the rules are breached, the photographer “may be asked to leave the concert” and that security may ask to view and “delete those images” i.e. “unauthorized images taken at the Concert which may cause irreparable harm, injury and damage to FEI and Artist, etc..”.  .  This appears to be unnecessarily excessive as accredited photographer are normally escorted into the designated shooting area by security staff seconds before the start of the concert; and after the first two songs, are again escorted out of the venue and not allowed back in. This may have been included at the insistence of management; however it overlooks the thousands of ‘unauthorized images’ taken by fans in the front three rows and who will no doubt post these onto social media sites.
However, going back to Jason Sheldon’s open letter, his main beef as a freelance photographer and a fellow artist was that the Authorization Form for the 1989 World Tour (not the new Guidelines) restricted photographers “to being paid once, and never being able to earn from our work ever again..”.
In a major concession to the publications, the new Guidelines does address their concerns about not being able to publish images more than once.  The only concessions to photographers are that they can place the published images on their websites and portfolios; and they are not restricted to earning once only from the same publication which can now publish the images in the future. The issue of copyright was a red herring.
The conclusion is that freelance photographers commissioned by publications are still not permitted to syndicate their images to other publications allowing them to earn a living from their copyright for its duration.  The Guidelines stipulate that only the same Publication may use the images more than once.  (Clause 2).
What would Taylor Swift’s response have been had Apple Music imposed a similar restriction barring her from placing her music with other streaming services ?

 
© George Chin 2015.

 

Sources
https://nppa.org/news/nppa-helps-revise-taylor-swift-credential-agreement

http://fortune.com/2015/07/10/taylor-swift-photographers/

http://montrealgazette.com/entertainment/bad-blood-the-taylor-swift-photography-contract

http://montrealgazette.com/entertainment/music/taylor-swifts-fans-go-all-out-for-montreal-concert

http://blog.fagstein.com/2015/07/08/taylor-swift-photo-boycott/

http://petapixel.com/2015/06/22/an-open-response-to-taylor-swifts-rant-against-apple/#more-170376

http://copyright.gov/about/

https://nppa.org/about