CONTRACT: Three years ago in June-July 2015, Taylor Swift was the subject of a controversial boycott by newspapers in Ireland and Canada as a result of the Concert Photo Authorization Form for The 1989 World Tour, which photographers were required to sign prior to taking photographs at concert venues. Photographers and publishers objected to Clause 2 which limited photographs taken to one-time use only. Clause 5 was particularly offensive as it was an express consent to the confiscation of/destruction of camera equipment and the ensuing likelihood of bodily injury; including an indemnity against liability for any loss or injury suffered by the photographer. The issues were freedom of the press to publish, criminal damage to property and agreement to bodily injury.
Following discussions between Ms Swift’s representatives and the National Press Photographers’ Association representing fourteen professional photographers’ bodies including the Associated Press and the American Society of Media Photographers, the agreement was re-named ‘Photo Authorization Guidelines’ and re-worded to address the concerns. In Clause 2, the previous restriction on one-time use was lifted but limited to the reviewing publication only, and an express ban on the use of photographs for commercial purposes which met the artist’s concerns. The offending Clause 5 was deleted and replaced by new wording in Clause 6 on breach of the Authorization to the effect that the photographer would be asked to leave the venue and any unauthorised images taken deleted on request.
Heavy-handed agreements by artists may be justified on the grounds that merchandising and licensing agreements have been entered into for tour merchandise and sponsorship; and photographs of the artist performing live may be used in unauthorised merchandise and ambush marketing as the tour moves from country to country where there are no laws on image rights or rights of publicity. Equally, some artists may be contractually bound to take reasonable steps to prevent unauthorised use of photographs taken and issuing authorisation agreements fulfils that obligation.
On Taylor Swift’s current Reputation Stadium Tour, the Concert Photo Authorisation Form has, in a complete reverse, made no explicit restrictions on the use of photographs for commercial purposes. Clause 2 now grants photographers permission to use photographs in ‘all media for news, editorial or information purposes’ by them and their clients. Clause 3 on breach of the Authorization no longer results in punitive measures of a physical nature. The entire Agreement is subject to the laws of and the ‘exclusive jurisdiction of the federal or state courts located in Metropolitan-Nashville Davidson County Tennessee’ (USA).
It is worth noting that common law in Tennessee acknowledges ‘a property right in the use of one’s name and likeness’, and additionally, the Tennessee Property Rights Protection Act 1984 enshrines the common law in statute: ‘[e]very individual has a property right in the use of that person’s name, photograph, or likeness in any medium in any manner.’ (Annotation Code 47-25-1103 (a)); and any infringement or unauthorised use is liable to civil action and equitable remedies of an injunction and damages. Unauthorised use is defined in the statute as ‘the use of another individual’s name, photograph, or likeness in any medium, in any manner directed to any person other than such individual, as an item of commerce for purposes of advertising products, merchandise, goods, or services … without such individual’s prior consent.’
However, under the current agreement, it is unlikely that photographers in the UK will be aware of any restriction on commercial use unless it is expressly prohibited.
By George Chin LLB(Hons)
The 1989 World Tour Concert Photo Authorization Form
https://nppa.org/sites/default/files/Taylor_Swift_Updated_Concert_Photo_Authorization_Guidelines_07-20-15.pdf (MLU blog ‘Update on Taylor Swift’s Photo Authorization Form’ – 25/07/2015)
Reputation Stadium Tour Concert Photo Authorization Form