Them Crooked Photo Contracts

In Music Photography

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Is publishing this Coldplay photo really damaging the artist?
Is publishing this Coldplay photo really damaging the artist?

You may have noticed that I don’t photograph nearly as much live music as I used to. That’s for a number of reasons, but largely because I’m tired of having to sign away the rights to my photographs every time I shoot a show as an accredited photographer.

Most times a photographer is let into a concert to shoot their first three songs, they are made to sign a contract in order to get in. That contract is sometimes with the concert promoter, sometimes with band management.

What the contract normally states is along the lines of “by allowing you to photograph this concert you are limited to publishing the photos once only in the one publication you represent”. Except it’s expressed in much more legalistic jargon.

Alarmingly what is becoming even more commonplace is contracts that explicitly take away the photographers copyright and moral rights and transfer it to the band.

What that means is that without paying the photographer a cent, the bands management could demand the photos from a photographer and print them on t-shirts, album covers or posters and not even credit the photographer.

The Crooked Vultures photo release
Them Crooked Vultures photo contract

I find it frustrating enough to have to limit where my photos appear to one publication, but these contracts are getting even more exploitative.

Is it legal and enforceable?

When I asked veteran concert photographer Tony Mott what he thinks of contracts he said,

“I ignore them. They’re illegal anyway. My only advice is don’t argue because then you don’t get your access. Just sign it, date it and time it. Almost instantaneously it becomes null and void. To have a contract you need to have consulted a lawyer. Plus, they never give you a copy.”

Read more at Mess and Noise.

Unfortunately legal opinion doesn’t seem to be on Tony’s side. At the Underexposed music photography symposium copyright specialist Ellen Beattie explained that the contracts are legal and binding. Similarly, lawyer Michael Easton told The Music Network,

“You should only sign something if you are happy to be bound by it”.

Making a mint from concert photos

Artist’s management seem to think that photographers are getting rich off their image – it’s so far from the truth. Most photographers are actually there due to a passion for their craft and a love of music. The monetary compensation is meagre.

By instituting a contract that robs the photographer of the right to publish their photos, or even be acknowledged as the photographer is a kick in the face.

Cruel intentions?

I don’t think the artist’s intention is to actually go through with demanding photographer’s images and exploiting them for nothing, and i’ve never heard of that happening, so I think it’s an incredibly heavy handed and unnecessary approach.

I think all photographers would be happy with an agreement that denied any rights to reproduce images for commercial use. We don’t want to sell the images for unauthorised merchandise; t-shirts, posters and the like.

What we do want is the right to publish our photos on our own websites. We want the right to say yes to Rolling Stone or SPIN magazine when they get in contact about publishing our photos. We want to be able to use our photos for editorial use, which is generally positive publicity for the artist.

How much harm can no contract be?

U2: photographer friendly
U2: photographer friendly

You may have heard of the little Dublin band called U2. They have no photo contract at all. AC/DC? No photo contract. The Rolling Stones? No contract. It doesn’t seem to have adversely affected their careers or limited their ability to make money from their image.

At any concert, all the fans in the crowd who photograph the show don’t sign a contract. Their photos can be just as good quality as the professionals, plus they can shoot after the three song limit. Are all those fan photos damaging the artist? There’s nothing stopping those fans selling or publishing their photos.

The Horrors. Paying for a ticket and shooting the whole show can yield better photos than being accredited
Paying for a ticket and shooting the whole show can yield better photos than being accredited

A fairer solution

If bands deem it necessary to have a contract which states the terms of entry then i think it really only needs to state the basics:

  • First three songs, no flash
  • Entry is at the photographers own risk
  • The photos will be used for editorial use only – no commercial use allowed

I’d love to hear opinions from those in the industry about why this contract wouldn’t work?

Any other opinions from photographers? Bands? Management? Tour promoters?

35 Comments

  1. Just as an aside, the Pearl Jam photo release contains exactly and only the 3 points you mention at the end: 3 songs no flash, only for the publication mentioned, at your own risk.

    I was pleasantly surprised, I definitely think only those 3 points should be necessary.

  2. Dan, this is an excellent post. I’ve always thought photographers get poorly reated compared to written reviewers, and photographs often give a much better representation of what a live performance was like than a written review.
    It’s just another example of an old-school old-media mindset not changing with the times.

  3. It’s a joke dan, it really is.

    There was a flare up recently (well, 6 months back?) on fasterlouder around this topic – where a former senior editor referred to those with thoughts on the topic as “Freeloading Photographers”.

    The problem is wider than photographers and rests with editors + publications as well as the inexperienced newcomers, and the sheepish mentality that drives into the existing shooters.

    The publications should be working aggressively for their companies and pushing the exact requirements you’ve published (call them “maximum limitations”) to the management labels that bring the touring acts out here. More importantly, they should be exposing the sour issues that arise from the rights grabbing contracts. Black image where photos should be. Description of the impact on the industry instead of a glowing tribute/review – with the editor having the guts to sign off themselves at the end of the article.

    On the topic, I’m sure it won’t be long before reviewers will be required to have their review’s vetted by band management prior to publication (think John Butler Trio with photos), and the authors of objective reviews that are not quite glowing find themselves served with lawsuits.

    PS: w%t – the article about P+S and contracts includes a link (it’s broken) to my Kanye West shot from 2 years back).

  4. Good job putting this all out there, Dan. I’d be interested to know what the MEAA has to say about the legally binding nature of the contracts.

    Either way, what a load of bollocks.

  5. Agree wholeheartedly with the want to use photos on our own websites. Admittedly, it opens up the image for anyone to come along and download the photo, make a t-shirt, and sell it (for example).

    However, the likelihood of this happening is so slim. If concert promoters/band management were that serious about cutting down on unauthorised merch, they’d be outside after shows and cracking down on the dudes selling bootleg t-shirts instead.

    As far as I am concerned, the only people I feel that are inhibited by the presence of concert photographers are those in the front row, and to be honest, when I first started shooting years ago, I thought that was why there was a three song rule. Makes much more sense than any contract I’ve seen.

  6. I absolutely agree, Dan, and I’m glad that someone of your status has finally said it. There is simply no need for these sorts of contracts.

    I encountered a contract like this when trying to shoot Ryan Adams and the Cardinals earlier in the year – signing all your rights over to the band, and so on. Needless to say, I refused to shoot that gig.

    Unfortunately, contracts with “rights grabs” are becoming all the more common now. And I, like you, am shooting less and less gigs because of my unwillingness to deal with them.

  7. Great post Dan. Hopefully it gets some attention in the right places.

    In response to Sophie, I think that one of the reasons for the difference in treatment between photographers and writers is this
    – If you piss of a writer and they write a bad review, that reflects badly on the performer.
    – If you piss of a photographer and they take bad photos, it reflects badly on the photographer moreso than the performer (particularly if you control if/where the photos can be used).

    So in promoters and managers eyes (I’d be surprised if performers actually knew what was in the contracts), there’s no great consequence from treating photographers poorly.

  8. Yesterday’s Pearl Jam / Ben Harper photo release forms are a good example. The two bands’ terms were in direct contrast to one another. As Kristen mentioned, the Pearl Jam release referred only to the 3 key points. Conversely, the Ben Harper release was much more detailed. The following three conditions were outlined, similar to the one Dan has shown above:

    “1. All photographs taken will be used solely by the Publication;
    2. Under no circumstance may the photographs be sold or used by you for any other source or publication, or for any commercial merchandise, including, but not limited to, posters, calendars, clothing, programs, books, websites, photo prints, direct or indirect endorsements of any products or services, without Artist’s prior written approval”

    And the kicker…

    “3. Artist shall have the right in perpetuity throughout the universe to manufacture, distribute, exploit, edit, advertise, display, sell, license or, otherwise dispose of the photographs and derivatives derived therefrom in any manner or media whatsoever including without limitation, in connection with any album, commercial merchandise, websites and marketing, publicity and promotional materials relating to Artist’s career.”

    I understand and agree that the artist needs to be protected from photographers using their images on un-authorised t-shirts and posters. What really seems irksome to me is the newer stipulation that the band/artist completely owns the rights to my work – ‘Artist shall have the right in perpetuity throughout the universe to manufacture, distribute, exploit, edit, advertise, display, sell, license or, otherwise dispose of the photographs.’

    To make matters worse, the agreement also stipulates that snappers must ‘provide Artist and/or Artist’s management or representatives in a timely manner with high-resolution files of the Photograph(s) upon request.’

    So – not only must I sign over all moral rights and ownership of my own work, but I’m also expect to provide perform the administrative task of providing the artist with my electronic files, free of charge.

    What does it mean really? Ok, say that hypothetically, in the (extremely unlikely in my case : ) event that I managed to snap the ‘archetypal’ shot of the artist – classic album sleeve material – I’d be obliged to hand over the files, to be used without credit and certainly without royalty ‘throughout the universe’. It’s definitely a heavy handed and slightly unfair arrangement. The artist is protected but the photographer is basically stiffed. I suppose the alternative when faced with such stringent release forms is to walk away and choose not to photograph the show and or provide publicity – or simply take mediocre photographs. Neither seem like atractive solutions.

    The question also arises whether or not certain artists wish to be photographed at all, as in the case of the few who sit through the first three songs stone faced, barely looking up at the audience or even hiding behind a microphone or two. As soon as the first three songs end they’ll then jump up, put their hands in the air and become more effusive toward the crowd. I can understand shyness and apprehension towards the media and certainly think some benefit of the doubt should be extended here – I’ve never been fond of haing my photo taken. The question which I think remains unanswered is this: Artists need the rights to their image protected, granted, but shouldn’t there also be some standards in place to make sure that the photographers’ work is also treated fairly?

  9. Excellent post Dan, very well argued. It astounds me that Them Crooked Bastards are this tight around the rights to their image, as the tickets were $105.75. Surely they’re not worried about their cashflow being effected? It reeks of an over-controlling management. Disconnected at the very least. Disclaimer: I am going to see them. I paid. I can call them that. I just want to hear Mr Grohl smash his drums.

  10. 2007 – ACA wanted to retain all copyrights to Cricket images taken at their matches or (their counter offer after backlash lol) charge media outlets big sums of money in exchange for media passes to each event

    As they should have, all media outlets refused this outrageous notion & no coverage of the game was given…however articles were published worldwide about the ACA’s new plans, and I think by Day 2 or Day 3 of the AU vs Sri Lanka test match the ACA retracted the new media restrictions

    One day is all it took, at the moment all we have are fellow photogs writing articles such as this one (not taking anything away from it Dan) no dents are being made

    News Ltd recently refused to cover the Britney Lip Sync parade after they were handed a rights grabber, but it was only a small article stating so as multiple others were jumping on the WA walkout bandwagon

    Until something huge is put out there, these management companies don’t care for us annoyed togs

  11. I’m in complete agreeance but I have said, and always have said, that more needs to be done than blogging.

    Not a shot at you Dan at all, we need to talk about this and open dialogue and these posts are an important step. We can’t leave it at this though.

    Personally for some time I’ve looked at drafting template legal documents for shooting live performance that could be given the legal thumbs up and distributed to touring companies and band managers for free with a quick rationale as to why the contract works well.

    Matt

  12. Dan,

    I agree with you wholeheartedly. I usually shoot bands so small (and often unsigned!) so I don’t have to deal with contracts. However, I signed my first one last week, and shot my first show under those constraints last week, and it was a really bitter pill to swallow. I left feeling sort of empty–and believe me, that is NOT the usual experience.

    I do think that there needs to be some way to limit the number of photographers allowed into the pit, or something, because if there isn’t then every doofus with an SLR is going to be in there elbowing you out of the way, and the pool will be diluted. Sorry if that sound snobby but I think its true. Does anyone want to jostle for a spot and have other photogs get in their shots?

  13. Dan, you know me, and I love you, but I’m going to say something that will probably upset you: music photographers make money and careers from musicians. If there were no musicians, there would be no music photographers. It’s easy to argue that without music photographers, there would be no musicians, but that’s not really true is it…

    • @Chris Peak – Good to have your contribution from the muso’s perspective Chris.

      I like to think the relationship between musician and photographer should be mutually beneficial and respectful.

      You’re right that a musician can make music without photographers – but we help get that music heard. Without the dissemination of photographs in the media far fewer people would ever hear or take notice of an artist.

  14. Music photographers do indeed make money from musicians.

    But musicians’ sellability is massively dependent on their image and publicity obtained, not just their music and a great picture can help make them.

    U2’s management have always had the confidence in their band – no photo contract now and early advocates of home taping (when we still had tapes) saying that they were confident that borrowing each other’s music was a good way to hear new bands (it still is but they might not agree any more).

    Some management, and not just in music, seem over controlling – this might be down to inexperience, naivety or lack of confidence in their band (or product).

    Management: Great pictures of your band need to be seen as often as possible in as many places as possible to help you succeed but you will have to give up some control, and if you are not yet the manager that you could be, this might frighten you too much.

  15. Most interesting, i hardly think “frustrating” as you put it Dan, is the right word, i think infuriating is closer to the mark in this case.
    As much as it saddens me to say this, i think all self respecting photographers should neglect to shoot at any performance where such a waiver is required. Management might realise they’re killing a golden goose when the band they’re trying to promote drops out one of its most important mediums and recieves less popularity than its more light-hearted, contract-free counterparts.
    I’m yet to meet an artist from any level that dislikes having pics taken during their performance, i’ve even had a couple of big bands allow me to be on stage while shooting (having said that – i now realise how un-professional that was). but back to my point, they were more than ok with pictures being taken, and sure i signed a waver, perhaps a halfway one from Them crooked Vultures and the one you suggested, Dan, but nothing was said of it no longer than 20 mins after signing it.

    Lastly, just like to say how much i admire your pics and creativitiy, not to mention the apparent ease in which to take them, your subjects seem to melt into your capable hands.

    please don’t give up on live music photos altogether, keep inspiring me as you have done since your friend and mine,Jake Stone suggested I check out this little place called boudist.com – “like buddist but with an ‘O’ and only one ‘D'”.

    I’m sure il learn alot from you yet.
    Kind regards Oscar

  16. Honestly, do what myself and colleagues do and sign it Sebastian weetabix. They don’t check it, you haven’t signed it and everyone is happy. Or alternatively if you aren’t happy with their contract tell them to “poke it” and go home and put your feet up. Otherwise you just reaffirm tht you are desperate!

  17. I agree with Matt about there needing to be a more open dialogue. As a dabbler in live music photography, I was very much unaware of what was going on until I got hit in the face with one of these contracts last year and only then after actively searching through flickr and other community photo websites did I realise this was a commonplace activity.

    I guess like most things, half the battle is creating awareness about the problem before enough people know about it so that they can create enough momentum to make an impact…

    On a side note, I have long been a lurker of the Boudist site and must say that I really love the now not-so-new revamp.

  18. Personally I only came up against contracts a couple of years ago, and the talk of the unfairness of some of them was going then.

    Take a step back and look at why this has happened, over 30 odd years. Originally, no contracts at all, just shoot, and we have ended up with some of the most iconic images in music. For whatever reason (or incident), the industry want to bring the control of these images back closer to themselves…. and they hit the issue with a brick.

    You have had the needle all the way to the left when there was no contracts, and it has been flicked all the way to the right when the solution is somewhere in the middle.

    Though having a simple contract like 3 songs, no flash, no commercial use is great, I feel that won’t keep the industry totally happy.

    I have always felt something like this….

    limited to editorial use, and self promotion.
    no commercial use,
    artist/management can use any image in exchange for current market rate

    With something as simple as this, you will find that the image is being used for the purpose it was taken for, in editorials, regardless where. You could use them on your website and anything else to promote your photography. Limiting to non-commercial use would still allow you to print a personal book for your brother for Xmas. And if the artist wanted to use the image for the next cover, both you and the artist will get a fair price.

    @ Chris Peak. What you say may be try, but you can say that about studio engineers, booking agents and publicists. If there were no musicians then their job does not exits. I suppose the photographer just needs a little of the same respect.

  19. I’m completely sick to death of this myself. This year early on came Morrissey’s contract which I didn’t sign and luckily got away with not really signing at a music festival later on. That was written as if we were all using film cameras, which was somewhat hysterical, but was still quite restrictive.

    Gogol Bordello (aren’t they supposed to be “gypsy punks”???) also had a contract this year. So did the Nick Cave, My Bloody Valentine, and Mars Volta.

    Then, the Sonic Youth contract, which I found out that the band didn’t even know about. I think often times these labels and publicists are in their fifties and sixties….they must feel like they have lost the battle with downloading so this is their next control area. In my conversations with these people, I’m amused that someone so archaic could run record labels and promote a popular band. They seem to think they really can control these images and that the live images can be harmful to the band. They also seem to think that it’s better to have a million cell phone and point and shoot shots without any counter shots from SLR cameras. Oh, and all of the shots taken by photographers who signed the contracts need to be down after a year, too.

    It’s discouraging on quite a few levels but the assumption from these labels and publicists is that we’re getting paid by whoever we’re shooting for. That’s basically why they think they can take away our rights.

    I urge photographers not to sign these contracts and I’ve refused in the past..it’s really not worth it to take away your rights and it makes a statement to the industry. If none of us signed, they’d really be up a creek.

  20. Any photographer signing a release like the TCV one, is hurting all other photogs.

    Music photographers don’t take any money away from the bands. We make money selling good images. Selling a great image of a band to a cool magazine, only helps the band make more money.

    I remember when Bob Dylan was in town. He didn’t allow any photographers in (I was a news shooter then). At all. So I disassembled a dslr, put it in my underpants, shot the gig, escaped security and sold the pictures.

    If there’s a will there’s a way. But never, ever sign away the rights to your photos.

  21. In a world that is utterly saturated with images of all kinds, why a band would want less exposure is beyond me.

    I don’t shoot live events — or musicians period — but I recently had a related discussion with an old photo professor of mine, Henry Horenstein, who published a book of photographs that he took during the 1970s called Honkey Tonk. I direct you to the books website:

    http://www.honkytonkbook.com/notes.html

    The last paragraph sums it up pretty well.

    • @Jamie – Yeah, that last paragraph is on the money.

      I get the impression most up and coming bands are happy for the publicity – but once you get to Coldplay or Foo Fighters size you don’t need any more publicity and seek to have more control.

  22. Daniel, I agree with everything you’re saying. I posted something on my blog a while ago about my frustration when Sonic Youth’s management wanted me to sign a similar contract.

    I feel lucky that I mostly photograph lesser-known indie artists at small venues who don’t require photo contracts.

  23. One thing that everyone seems to forget about is that the law already prevents a photographer from selling an image of an artist/performer for commercial use without giving them a royalty and/or getting their permission. Any human being owns the rights to their likeness. The only way that likeness can be sold/used without the person’s permission is if their likeness was recorded (through a photograph) in a public place, at a newsworthy event (the concert), and is published in an editorial/news publication. This law is already on the books, so the part of the contract that says “no commercial usage” is unnecessary.
    As for the full and total rights-grab- Nasty Little Man publicity seems to be the main culprit behind them. I’ve seen that insidious clause in contracts for several of the artists on their roster. I’d be willing to be that most of those artists don’t even know what’s in those contracts, and if it were explained to them that photographers are creative artists just like them who need the rights to their work to make a living, those artists would drop Nasty Little Man like a hot potato. I say let’s try to tell as many of NLM’s artists as possible about those contracts. If NLM starts getting threats from their artists, they’ll change their evil ways. There are plenty of other publicists out there. Until then, I’d just “accidentally” put the wrong date on the contract when you sign it, or just cross out the full rights-grabbing clause, and if they don’t accept it refuse to shoot the show. I feel no remorse doing something like that because these contracts are absurdly disrespectful to photographers. Technically it is THEFT, except you are making it LEGAL THEFT by signing it!

    • @Steve – That’s an interest point about commercial usage – you’d need a model release to use it for that purpose anyway.

      And as for Nasty Little Man – i have a feeling they’re just the messenger for band management and it’s not them instigating the contracts. They don’t look after bands when they tour Australia yet we still have to sign the same contracts.

  24. I just recently received one that stated that I must send them ALL HI RES photos with no limitations. Must be sent 1 week from the show. They also had in there I agree to receive $0. I can use 1 photo in my portfolio that must be approved and any other usage will be denied unless I have a written contract from the company. I wonder if they company that sent this contract understands that I am working for a publication. I also would like to know if the contract is still valid even though its from another country then I am shooting?

  25. I’ve been using my point and shoot camera for the last 2 years and have managed to get some amazing shots at all those gigs. Being able to take photos for the whole gig definitely gives you more range, and even though you’ve got to get in early for a front row spot, it’s a hell of a lot better than having to deal with all this contract shite.

  26. Hey Dan!

    I’d never make you sign a contract 🙂 You take unreal shots (look how good the CC and LC ones came out!)

    However I do understand the need to protect an artist and maintain some kind of control over their image. I’ve always thought it funny that someone can actually own an image of you. It must feel weird to have a photo of you somewhere on the internet and to have no control over that photo, no say in where it goes or what the owner does with it. After all, it is actually a photo of you, how can anyone other than the subject claim ownership over that?

    To completely contradict myself, I understand a photographers need to own the images they make. After all, they have actually created it, how can anyone else lay claim to their art?

    I don’t know what the answer is but you’re a super nice dude and you’ll do right by us, so I don’t think contracts are necessary. Good will wins!

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