Yay, Taylor Swift! Boo, Taylor Swift! (On the Value of Artist’s Works)

UPDATE: Ms. Swift’s management companies have changed the photography contract significantly. It’s a huge step in the right direction and I applaud them for it. See this article for details:

http://petapixel.com/2015/07/22/taylor-swifts-concert-photo-contract-changed-to-be-more-photographer-friendly/

That being said, this argument still applies to venue and event photography generally, so I’m keeping it up.

(NOTE: This article contains quoted statements, allegations, and documents made and/or provided by third parties. While to the author’s knowledge and belief everything in it is reasonably accurate, no representation is made as to the validity of facts and allegations set forth herein other than those constituting the opinions and assertions of the author. While the author is an attorney, nothing herein should be viewed as legal advice and the reader is advised to obtain their own licensed and qualified counsel before making legal decisions.)

It has recently been in the news that extraordinarily successful recording artist Taylor Swift called out Apple Music for planning to give away access to trial subscribers to free for three months… and not to pay the artists whose music they’d be using for customer acquisition any royalties on what trial members listened to during the trial. Here’s a link to her original open letter to Apple:

http://taylorswift.tumblr.com/post/122071902085/to-apple-love-taylor

For this, she is to be wholeheartedly commended. While she is, as noted, an extraordinarily successful recording artist, she’s still just one person, and she has to answer to her label, etc, for potentially angering the most influential single entity in music distribution today. This action was not without significant risk on her part. But she did it, and she won: Apple soon announced that it would pay artists royalties as appropriate. So everybody was happy.

*cue ominous music*

Until…

A photographer named Jason Sheldon pointed out that while Ms. Swift was all about the value of artistic creation when it came to her music, her management company was somewhat less interested in it when it came to the value of the photographs that independent artists made at her concerts. Here’s his original open response:

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

It wasn’t long before Swift’s management people responded, but instead of a personal, heartfelt, and impassioned argument for valuing creativity and against billion-dollar companies using other people’s music for free, it was a weasel-worded statement from some publicist vetted by some lawyer(s.) (Trust me, I know, I’ve written/vetted these things.) It was patronizing to the point of insult and, while technically accurate, a complete non-answer to Mr. Sheldon’s allegations. While the response was made in an email to BI and not publicly, here’s the gist:

The contract “clearly states that any photographer shooting The 1989 World Tour has the opportunity for further use of said photographs with management’s approval,” the representative said.

The person added: “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.”

 

As I said, technically accurate, and written to put Mr. Sheldon’s allegations in the worst possible light without actually denying or answering the substance of them. (He never claimed that the agreement required a literal transfer of copyrights.) This kind of thing really frosts me. It’s one thing to do it defensively when you didn’t start the fight, but she did start the fight. Or at least the discussion. For her representatives to write a response that could have come straight from Apple’s legal department with a few words changed around is really quite offensive. “Hypocritical” is a strong word, since we have no evidence that Ms. Swift was involved in the response, but if she was, it’s probably an appropriate word.

So anyway, for purposes of information and entertainment, I rooted around until I found what purports to be the current photographer agreement for Ms. Swift’s “1989” concert tour. Again, I have no proof that this is the current agreement, but it seems quite reasonable and in accord with the statements made by Ms. Swift’s representatives. Upon reasonable notice of any errors or omissions, I will gladly make appropriate corrections.

That being said, how about we (and by “we” I mean me) review it in light of Mr. Sheldon’s allegations and Ms. Swift’s representatives’ response, shall we? Sounds delightful. Let’s do it!

The original agreement is in BOLD. My comments are in plain text.

FIREFLY ENTERTAINMENT, INC.: THE 1989 WORLD TOUR CONCERT PHOTO AUTHORIZATION FORM

So far, so good. “Authorization Form” is a perfectly good way to describe it, but what this is is a contract. It is not a waiver or a release (although it contains both.) It is a legally binding contract. Whatever Ms. Swift’s representatives may claim, the language in this contract controls the relationship between the parties.

In consideration for permission from Firefly Entertainment, Inc. (“FEI”) for the undersigned person (“you” or “your”) to photograph the music artist Taylor Swift (“Artist”) and her live concert performance on INSERT DATE, at INSERT VENUE, CITY AND STATE (the “Concert”) (collectively, the “Photographs”), you acknowledge. accept and agree to the following conditions (the “Authorization”):

Still so far so good. This is a contract, we’ve recited what each person is going to give and what each person is going to get. This is called “consideration” by lawyers, and a contract without consideration is usually not enforceable. FEI (which is the tour management company) doesn’t have to let the photographer take any pictures at all. The concert is a private venue. So for something valuable – access and the right to photograph – the photographer is giving something valuable, the rights and restrictions on use of the photographs.

Keep in mind, though, that likewise, Apple doesn’t have to let musicians sell on their music services. It’s a private market. So any argument to “Well, if they don’t like it they don’t have to take photographs” immediately fails. Because that would also be a complete and irrefutable answer to Ms. Swift’s original complaint. And in fact she planned to exercise that option. But that didn’t stop her from posting her letter, and it shouldn’t be a valid objection to Mr. Sheldon either.

1. You are only permitted to take the Photographs of the Artist and the Concert during Artist ‘s performance of the first and second songs of the Artist’s initial set (the “Designated Time”), without a flash or lighting device of any kind in the credentialed media area (the “Designated Area”). You will remain in the Designated Area, and will not seek access to or otherwise enter or photograph any back-stage or side-stage areas or other areas which are off limits to general ticket holders, including, but not limited to stage peripheries and onstage areas. Your rights are limited to still photography during the Designated Time and in the Designated Area unless you are granted the right to create video by FEI in a separate authorization form. You and/or your employer will be responsible for all costs related to the rights granted in this Authorization.

Believe it or not, I think this is entirely reasonable. “Only the first two songs” may seem a little draconian, but that’s when her makeup and hair will look best, she’ll be freshest, and the fewest opportunities for disaster will have occurred. Seems like it could miss a lot of opportunities for great pictures, but if that’s a chance they want to take, hey, like I said it’s their venue. Also the flash thing may seem strange, but these are pros we’re talking about and the flashes they could bring might be disruptive or even dangerous. (Blinding somebody who’s walking on a stage is potentially hazardous.) It’s not like the popup flash on your Canon Rebel. Rather than argue about how strong a flash is permissible, they just say “no flashes.” Choose your lens properly and it’ll be fine. Likewise, no video. Video has audio and Taylor Swift sells her music. It’s entirely reasonable to try to exercise some control over how her actual artistic performance, as opposed to her still image, is broadcast to the world.

2. The Photographs taken in accordance with paragraph one (1), may be used on a one-time only basis for news or information purposes within the body of related text of the publication entitled INSERT PUBLICATION NAME (“Publication”), and on its associated website at INSERT WEBSITE URL until the end of the 2015 calendar year. Without written consent from FEI or the Artist and/or her authorized agent(s), the Photographs will not be (a) duplicated or reprinted in any other publication; (b) republished in the same Publication or Published in any other edition of such Publication; (c) exploited commercially; or (d) used in any other manner or means now known or hereafter devised, including but not limited to electronic or “new media” usage. Except as expressly provided herein, you will not. and will not permit others to, use any of the Photographs in any manner, including on your personal or professional web site or social media accounts or pages, without the prior written approval of FEI or the Artist and/or her authorized agent(s).

Okay, now we’re getting into the meat of the thing. The photographer can license the photograph to ONE PUBLICATION, ONE TIME, and they can use it on ONE WEBSITE, until the end of 2015. After that even if the article is archived the photo has to be purged. Right away you can see how restrictive and onerous that is. Who’s going to keep track of it? If the publication won’t remove it and gets the photographer sued, what’s the photographer supposed to do about it? If it gets republished, how is the photographer supposed to prove they didn’t “permit” it? Do they have an affirmative responsibility to try to get republishers to desist from republishing it? Arguably, they do. While this argument might or might not hold up in court it’s going to be Firefly Entertainment, Inc. against J. Random Photographer, and FEI spends more on coffee for its lawyers than JRP’s entire hypothetical legal budget. You don’t have to be right to sue, and you don’t have to be wrong to bankrupt yourself defending ridiculous lawsuits from entities that can outspend you by orders of magnitude.

Note also that the photographer can’t use the picture even for their own portfolio, or so much as post it on Twitter, without prior written approval. Is that reasonable? I think not. I am flabbergasted that someone who speaks so passionately about the rights of artists thinks it’s just fine for artists not to even be able to show their art to the world for purposes of demonstrating their talents. It’s one thing to restrict commercial usage – no selling posters or lunchboxes with the picture, fine. But to tell them they can’t even put it on their portfolio page without written approval? That’s completely inconsistent with the values Ms. Swift champions.

Now, how easy it is to get that approval, I have no idea. But the point is, it’s entirely at the discretion of FEI. The person who gives permissions today may be a nice, reasonable person who answers emails promptly. Tomorrow they could get hit by a bus and be replaced with somebody who hates dealing with nobody photographers and doesn’t respond to emails except to ask how many zeroes the usage fee is going to include.

As stated by FEI, this doesn’t mention the actual copyright, which remains safe and snug in the arms of its loving photographer-parent. However, this is also a distinction (largely) without a difference. Suppose I wrote a book and licensed it to a publisher, and the contract said, “Copyright to the Work shall remain with Author, but only Publisher shall publish, distribute, translate, use, modify, or create copies of the Work. Author shall give no right to exploit the Work in any way to any other person or entity.”

Look, I kept my copyright! Go me!

Buuuuuuut… I can’t do ANYTHING with it, ever, and Publisher can do anything they want with my book, ever. Not really helpful that I am still technically the copyright holder. This is what we call a “rights grab,” it’s unethical absent proper consideration, and it’s totally against the spirit of everything Ms. Swift claims to be fighting for. But her representatives are 100% correct. The copyright stays with the photographer. (He never claimed otherwise, but still. They are 100% correct.)

Finally, while it’s true that the contract allows other usage with prior written consent, there is no “reasonable refusal” language. It’s always true that you could renegotiate a term or ask for permission to do something different later. Putting that in is legally insignificant. The absolute minimum language that could be considered fair here would be to add, “which shall not be reasonably refused” to the wording. That means that FEI has to have some reason not to allow the usage. It’s not there, so the fact that it “allows” more usage means nothing. It’s totally at FEI’s discretion. Watch out for buses, nice person who issues usage waivers!

3. On behalf of yourself and the Publication, you expressly grant FEI, and its related entities, including, but not limited to 13 Management, LLC; Taylor Nation, LLC; and Taylor Swift Productions, Inc. (the “Related 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.

Oh, boy. Here we go. This is The Big One. How dare you, Ms. Swift? After that magnificent rant about billion-dollar companies leeching off the backs of musical artists, you blithely claim the right to use the valuable creative works of visual artists, forever, without paying them a penny? You ought to be ashamed of yourself. (Or, since I doubt Ms. Swift had much to do with the creation of this contract, she ought to be ashamed of her representatives.) How about we at least put the same restrictions on you that you think are reasonable for the actual creator of the photograph? You can use the picture until the end of the year. You can’t let anyone else use it without permission. You can’t put it on social media without permission. You can only put it on one website, one time.

That seem fair? What do you say?

4. If you or the Publication breach this Authorization, all rights granted herein will be immediately and automatically rescinded. You acknowledge that any unauthorized use of the Photographs or any use of unauthorized images taken at the Concert will cause irreparable harm, injury, damage and expense to FEI and Artist; and FEI and Artist are entitled to equitable relief in addition to any other right or remedy available to FEI, the Artist and/or any person(s) appearing in the Photographs (the “Subjects”).

This language means that FEI has the right to get injunctions against use of the photographs, or otherwise ask a court to do something besides give money damages. It’s boilerplate language, but again, it demonstrates the contempt that the people who wrote it have for artists. The agreement automatically terminates. Not on reasonable notice, not even at FEI’s discretion. No opportunity to repair the breach available. No notice of any kind rquired. Just, boom, rights rescinded, you’re in breach, and we can go to a court and ask them for an order to stop using the images or even to destroy them. And note that if the Publication breaches, the photographer automatically loses all their rights. Way to hold J. Random Photographer liable for the actions of Ginormous Media Conglomerate, Inc., Ms. Swift.

5. If you fail to fully comply with this Authorization, authorized agents of FEI, the Artist or the Related Entities may confiscate and/or destroy the technology or devices that contain the master files of the Photographs and other images, including. but not limited to, cell phones and memory cards, and the Photographs and any other images; and eject you from the venue, in addition to any other remedy available to FEI, Artist and/or the Subjects. You and the Publication jointly and severally shall indemnify and hold FEI, the Artist, the Related Entities and the Subjects harmless from and against any and all claims, losses, injury, damage, and expenses incurred by any or all of them arising out of this Authorization and/or the undersigned’s attendance at the Concert. You and the Publication hereby release FEI, Artist, the Related Entities, their officers, directors, employers, contractors, and agents and the Subjects from and against any and all liability arising out of this authorization and for your attendance at the Concert.

I like to think of this as the “Waiver Of Right Not To Be Assaulted And Robbed” clause.

If the photographer misbehaves, eject them from the venue. Fine and dandy – that applies to everybody anyway. But you are outright claiming the right to seize and destroy the photographer’s personal property, including not only their film/chips but their camera? How is that fair? How is that even sane? Sue them for damages. Get the injunction they waived the right to contest. But no, you don’t get to grab them and smash the equipment they use to make a living. If your keyboardist hits a wrong note and deprives me of my right to enjoy the concert, would you be okay with me going on stage and demolishing the keyboard with a hammer? I didn’t think so.

Incidentally, it doesn’t work like this. If the photographer refuses to hand over the equipment, and some black-shirted goon wrestles them for it, that’s assault, it’s a crime, and the fact that the photographer signed this contract doesn’t mean jack. You can’t waive your right not to be robbed by means of violence. But I’m sure more than one photographer somewhere has been intimidated into not pressing charges because “they signed the paper.”

It’s enough to make a person start having some sympathy for paparazzi. They are often invasive, obnoxious a-holes, but at least they don’t put up with this kind of nonsense.

I also like how the photographer and the Publication are jointly liable for any alleged damages. Once again, if Ginormous Media Conglomerate, Inc., messes up, J. Random Photographer is on the hook. But meanwhile, both JRP and GMC have waived any and all liability to FEI et al. If the risers at the Designated Media Area collapse and the photographer is injured, guess what? Hope GMC has Worker’s Compensation. Oh, right. You’re a freelancer. At least there’s always Obamacare.

Well, it doesn’t work like that either. You can’t waive your right to recover for later gross negligence or intentional acts. But, again, this is actually in here for purposes of sheer intimidation, and it’s disrespectful to Ms. Swift’s fellow artists to include it in this overbroad and unreasonable form.

6. The terms hereof are binding upon you, the Publication, all successors, representatives and agents. You do not have the right to assign the terms or rights hereunder. This Authorization contains the entire understanding with respect to the subject matter hereof. This Authorization shall be governed by the laws of, and disputes arising hereunder shall be subject to the exclusive jurisdiction of the federal or state courts located in, Metropolitan Nashville. Davidson County, Tennessee; and you on behalf of yourself and the Publication, hereby agree to submit to personal jurisdiction of such courts. Any modification to this Authorization shall be void and of no effect unless agreed to and signed by an authorized representative of FEI.

Just a little insult to injury. Can’t assign your rights, not even to your agency, holding company, etc. Integration language, so even their non-denial denials can’t be used to argue that the contract isn’t really all that oppressive. If you’re not familiar with that term, “integration language” means that no other statement or action by either party can be used to argue that the terms of the contract don’t mean what they say. If for instance, some publicist claims that “further use is okay with our approval,” and furthermore says or implies that they’ll readily grant that approval, such statements can’t be used in court, because the contract says they can’t.

On the other hand, the jurisdictional thing is fine by me. Naturally I’d want the jurisdiction and venue to be my home state, but hey, let’s pick one and then everybody knows in advance. Presumably that’s where Ms. Swift’s management company is based so I’m not going to slam them for trying to get the home field advantage. Any suit would almost certainly be in Federal court and most Federal judges are highly competent so really, the only problem is geographical inconvenience. That’s going to fall on somebody. Although if she really wanted it to be fair, she’d specify that suit has to be brought in the defendant’s jurisdiction. But that’s way down on the list of offenses here.

Signature: ______________________ Date: _____________

Print Name: ____________________ Name of Publication: __________

AGREED TO BY: FIREFLY ENTERTAINMENT, INC.

Signature: ___________________ Date: ___________

Print Name: ___________________ Title: __________

Those are just signature blanks. Even I can’t find any real issues with them.

So there you have it. Mr. Sheldon is being reasonable. Ms. Swift’s representatives are not. If she really cares about the rights of artists, all artists, she will disavow this weaselry and at the very least order the Authorization Form amended to demonstrate her concern. At best, she could add this issue to the whole “us vs. them” debate and show her support for all creative artists.

Ball’s in your court, Ms. Swift.