I Got Banned from Photographing Arch Enemy(metalblast.net)
metalblast.net
I Got Banned from Photographing Arch Enemy
https://www.metalblast.net/blog/how-i-got-banned-from-photographing-arch-enemy/
148 comments
As far as I'm aware, in the UK, if the photograph was of you specifically - that is, not as part of a crowd - technically the photographer would need you to sign a model release, a legal document saying that you give the photographer the rights to use the image for commercial purposes. The document can stipulate a payment or that you give the rights for free. I can't imagine the situation is very different in other jurisdictions that protect intellectual property - but would be interested to hear from someone know knows more about that, because my knowledge is only based on the first year of a photography degree.
Most venues (and almost certainly all large ones/festivals) have waivers explaining that you're in a space where photography/videography is taking place and that by being present you are essentially signing a release. That would apply to the talent too.
I am not a photography lawyer but... a model release would certainly be expected in a situation where a photographer hires a model for a specific shoot whose shots would be used commercially. In situations where the shoot is for a third party (e.g. a clothing company that hires a model and a photographer to create catalogue pictures) the model release might be held by the party.
However, if a photographer creates pictures of an artist in a concert-style venue, I imagine the artist (or their management) might expect the Terms and Conditions of the venue to override any arrangement that an 'unauthorised' photographer tried to create.
However, if a photographer creates pictures of an artist in a concert-style venue, I imagine the artist (or their management) might expect the Terms and Conditions of the venue to override any arrangement that an 'unauthorised' photographer tried to create.
Should have clarified - this was a direct response to the parent comment, which talked about someone taking his / her picture, not about the linked article.
> Legally speaking, the photographer is completely within his rights.
That's not that clearly cut. One needs to fit in one of the following 3 cases if one wants to take "professional" photos at a live show:
1) hired by the performer, thus the copyright belongs to the performer
2) hired by the organizers/venue: copyright goes to the venue/organizer
3) 3rd party and this goes complicated, because based on your contract with the venue/organizer, you might or might not retain the copyright on the pictures. One thing that people on here and even on reddit, seem to not know is that the usual arrangement is for these 3rd parties to get free access to the festival, in exchange of helping with promoting the event/bands.
This is why on virtually all live events you are not allowed to show up with a professionally looking video/photo device. In one case, this was explained as "any device with detachable lenses". In order to be admitted with such a device, you need to have an accreditation, witch means you fit in one of the categories above. Which in turn means there is a contract that stipulates what exactly you are allowed to do with the material you are gathering.
That's not that clearly cut. One needs to fit in one of the following 3 cases if one wants to take "professional" photos at a live show:
1) hired by the performer, thus the copyright belongs to the performer
2) hired by the organizers/venue: copyright goes to the venue/organizer
3) 3rd party and this goes complicated, because based on your contract with the venue/organizer, you might or might not retain the copyright on the pictures. One thing that people on here and even on reddit, seem to not know is that the usual arrangement is for these 3rd parties to get free access to the festival, in exchange of helping with promoting the event/bands.
This is why on virtually all live events you are not allowed to show up with a professionally looking video/photo device. In one case, this was explained as "any device with detachable lenses". In order to be admitted with such a device, you need to have an accreditation, witch means you fit in one of the categories above. Which in turn means there is a contract that stipulates what exactly you are allowed to do with the material you are gathering.
> Personally, I find the idea that the photographer has more right to a photo than the subject ethically repugnant.
I guess that totally depends on the type of shoot. If it's a studio shoot with a paid model signing waivers/releases/etc, then of course the photog owns it. They put in the time/work/money to produce the image. Street photography is definitely where it starts to get fuzzy (to me, not legally). If the person in the image is the entire point of the image, then I definitely feel like the photographer should have a conversation with the individual. Ethically speaking. Especially if it's an image that the photographer could be making money from later. A release form should be made available. If the people are just part of the image giving "life" to the image, then I have no issues.
It is pretty annoying at times. I have taken studio portraits of family members, and then gave them digital files to make what ever prints they wanted. These were clean images meaning there was no watermarking or any type. One CVS refused to make prints without a release form. Another place hemmed and hawed about it, but the third place never even thought of asking. I just wanted to do a nice thing, and made it as easy as possible for the family. It never occurred that someone would question it. Lesson learned, I now always provide a signed release granting permission for creating prints.
I guess that totally depends on the type of shoot. If it's a studio shoot with a paid model signing waivers/releases/etc, then of course the photog owns it. They put in the time/work/money to produce the image. Street photography is definitely where it starts to get fuzzy (to me, not legally). If the person in the image is the entire point of the image, then I definitely feel like the photographer should have a conversation with the individual. Ethically speaking. Especially if it's an image that the photographer could be making money from later. A release form should be made available. If the people are just part of the image giving "life" to the image, then I have no issues.
It is pretty annoying at times. I have taken studio portraits of family members, and then gave them digital files to make what ever prints they wanted. These were clean images meaning there was no watermarking or any type. One CVS refused to make prints without a release form. Another place hemmed and hawed about it, but the third place never even thought of asking. I just wanted to do a nice thing, and made it as easy as possible for the family. It never occurred that someone would question it. Lesson learned, I now always provide a signed release granting permission for creating prints.
Personally, I find the idea that the photographer has more right to a photo than the subject ethically repugnant.
my own photos are published with an explicit license given to the subjects of an image, because i agree.
i should be in 100% control of what happens with my likeness.
this also applies in the case of tattoos: https://news.ycombinator.com/item?id=18769227
if someone gets a tattoo, they should not be prevented from using pictures of themselves in whatever way they like.
my own photos are published with an explicit license given to the subjects of an image, because i agree.
i should be in 100% control of what happens with my likeness.
this also applies in the case of tattoos: https://news.ycombinator.com/item?id=18769227
if someone gets a tattoo, they should not be prevented from using pictures of themselves in whatever way they like.
In the general case—leaving aside concerts and festivals—if I take a photo of you in a public place I can’t sell it for use in advertising or promotion without a model release. However, I own the rights to the photo including selling it and publishing it—and preventing others from using it without permission.
That’s in the US. I’m sure there are some differences between countries especially in defining commercial use.
That’s in the US. I’m sure there are some differences between countries especially in defining commercial use.
> Personally, I find the idea that the photographer has more right to a photo than the subject ethically repugnant.
I agree, but, I find the band's stance that the subject's permission is sufficient to also be repugnant. Two artists (subject and photographer) are involved in creating the work. Imho, absent an agreement, consent from both parties should be required to redistribute the photograph.
I agree, but, I find the band's stance that the subject's permission is sufficient to also be repugnant. Two artists (subject and photographer) are involved in creating the work. Imho, absent an agreement, consent from both parties should be required to redistribute the photograph.
>Personally, I find the idea that the photographer has more right to a photo than the subject ethically repugnant.
Disclaimer: I am american so this is all based on my (extreme layman) understanding of the law and copyright.
The system is pretty simple, if you are in a public place you can be photographed. Just like anyone can look at you, someone can take a photo. Their camera, their knowledge of how to take the photo, their correctly producing the photo and circulating it, via whatever methods they have developed over years of producing content (eg instagram, personal website, art shows, magazines, whatever). Why should you own the rights? You are certainly welcome to take photos of yourself and you of course own all the rights.
Disclaimer: I am american so this is all based on my (extreme layman) understanding of the law and copyright.
The system is pretty simple, if you are in a public place you can be photographed. Just like anyone can look at you, someone can take a photo. Their camera, their knowledge of how to take the photo, their correctly producing the photo and circulating it, via whatever methods they have developed over years of producing content (eg instagram, personal website, art shows, magazines, whatever). Why should you own the rights? You are certainly welcome to take photos of yourself and you of course own all the rights.
I have a few photographer friends and this is my understanding of US, at least New York, law as well.
It has to do with the dreaded "reasonable expectation of privacy". Walking to the local corner store, you have no sane belief you wouldn't be photographed.
The part I think is a little silly is the paparazzi with telephoto lenses shooting into the window of a hotel from a quarter mile away. Technically, it's a public space because the window was open. Doesn't matter it's the 37th floor and the photographer is several blocks away; since anyone looking into the window could see what the photographer took, it's fair game.
It has to do with the dreaded "reasonable expectation of privacy". Walking to the local corner store, you have no sane belief you wouldn't be photographed.
The part I think is a little silly is the paparazzi with telephoto lenses shooting into the window of a hotel from a quarter mile away. Technically, it's a public space because the window was open. Doesn't matter it's the 37th floor and the photographer is several blocks away; since anyone looking into the window could see what the photographer took, it's fair game.
>The part I think is a little silly is the paparazzi with telephoto lenses shooting into the window of a hotel from a quarter mile away. Technically, it's a public space because the window was open. Doesn't matter it's the 37th floor and the photographer is several blocks away; since anyone looking into the window could see what the photographer took, it's fair game.
I agree, the whole "if it is visible from a public place it is fair game" thing seems a little crazy. I think the argument is "do you have a reasonable expectation of privacy" and if you are standing in front of a window, would you? I certainly do not assume so, but I also don't live on the 37th floor. But if I can see out a window then someone can see in. I think if I was famous enough to have the paparazzi photographing me I would just get tinted/mirrored/something windows that I could see out but they couldn't see in.
I agree, the whole "if it is visible from a public place it is fair game" thing seems a little crazy. I think the argument is "do you have a reasonable expectation of privacy" and if you are standing in front of a window, would you? I certainly do not assume so, but I also don't live on the 37th floor. But if I can see out a window then someone can see in. I think if I was famous enough to have the paparazzi photographing me I would just get tinted/mirrored/something windows that I could see out but they couldn't see in.
Can’t say I’m massively surprised a mainstream metal band behaves like a business. Shame they come across like a bunch of jerks.
It's depressing that ignoring the copyrights of everyone smaller than you while aggressively defending your own is considered behaving in any way "like a business."
Metallica really started the ball rolling on this one, they made their breakthrough via the underground bootleg scene and now, apart maybe from U2, they are the most corporate band in the world.
> Ulrich announced that Metallica had spent the last year “trying to apply Salesforce products into everything that Metallica does.”
https://qz.com/1500717/what-is-salesforce-four-days-170000-p...
External confirmation.
https://qz.com/1500717/what-is-salesforce-four-days-170000-p...
External confirmation.
A lot of fans that were around years ago during the transition away from Carcass are aware of their behavior and even Angela Gossow (former vocalist) has basically admitted in interviews that they sold out (they weren’t ever really an underground band though... so you’re more like a commercial pop group, uhh) to make a living. To me, there’s nothing wrong with being up-front that it’s about the money and if you’re enjoying the music so be it but nobody into metal is surprised by this kind of behavior by bands doing the same money grubbing things that bands making orders of magnitude more money are doing. I think that’s the most shameful part of it all honestly - if you wanted to make money playing music there’s way more options than metal. Heck, the former keyboard player for Emperor quit metal completely, cut his hair, and did fine in Norway with dance music as a solo artist. I think the guys in Beherit literally went to dance music too.
Meh, if you are making enough to get by, doing what you love is way more important than having a lot of money.
Ihsahn might rock sweaters and short hair now, but he is still making some really dark metal.
Ihsahn might rock sweaters and short hair now, but he is still making some really dark metal.
I can't blame them.
Being an even mildly popular band is probably a gigantic annoyance. I can't even imagine how hard it is to be "famous".
You basically have no weekends, not much free time, touring is hard, especially on bus. A lot of nights in hotels (in which you checkin one days and checks out in the next day). A lot of airports. You probably can't have a quiet mean in a restaurant without getting people wanting to talk to you (if you're lucky, if you're not then it's fanzillas and crowds).
But of course fame is a drug.
Being an even mildly popular band is probably a gigantic annoyance. I can't even imagine how hard it is to be "famous".
You basically have no weekends, not much free time, touring is hard, especially on bus. A lot of nights in hotels (in which you checkin one days and checks out in the next day). A lot of airports. You probably can't have a quiet mean in a restaurant without getting people wanting to talk to you (if you're lucky, if you're not then it's fanzillas and crowds).
But of course fame is a drug.
It is much harder as a band to find a good sponsor than a good photographer.
Everybody is a photographer today and unless there is some value in the name or style associated with the photographer, they are just replaceable.
Everybody is a photographer today and unless there is some value in the name or style associated with the photographer, they are just replaceable.
This is quite plainly copyright infringement. Surely you wouldn't infringe upon someone's rights because "they are just replaceable"?
The problem is that they let him take pictures of them in the first place without any restrictions. But they fixed that now. The 'I am a photographer and a lawyer' line won't make him many friends amongst artist.
> The problem is that they let him take pictures of them in the first place without any restrictions.
I don't think that was the problem.
I don't think that was the problem.
It's clearly the problem: the band thought they owned image rights. The photographer had a different understanding.
Most people think like this: I have my face on that photo so that photo is mine not the photographer's. Photographer has rights to distribute, sell do whatever until the limit that is not harming the subject in the photo. In this case it is an artist she can only sue him if that photo harms her reputation. Instead her attitude harmed her reputation.
You can use the pictures for documentation/private use but unless you have an explicit agreement you can't use the pictures for commercial purpose. Otherwise, Nike could put up a sign 'All images here belong to us' in their store, photograph the next celebrity walking into their store and then use the picture of the celebrity in all promotion material without their endorsement.
The primary reason for that is because that would imply endorsement.
Conversely, if Nike photographs the next celebrity walking into their store and posts it on their instagram, that celebrity's sponsor can't grab that picture and then make it a link to their store.
Conversely, if Nike photographs the next celebrity walking into their store and posts it on their instagram, that celebrity's sponsor can't grab that picture and then make it a link to their store.
> Everybody is a photographer today
And everybody is a band today too. Doesn't mean we shouldn't respect their right to be paid for their work, no matter how "replaceable" they are.
And everybody is a band today too. Doesn't mean we shouldn't respect their right to be paid for their work, no matter how "replaceable" they are.
They are in demand. He is (apparently) not.
If this was true, his photo would not have been shared/stolen, would it?
I'm sorry, but demand and supply does not dictate how copyright ownership works. Are you implying that it's okay for me to torrent Arch Enemy's music just because they're not in as much demand as say mainstream pop music?
Not sure the PR fallout is worth saving 100euro...
> Everybody is a photographer today
Everybody has a device that can take photos - that doesn't make them photographers. The difference between a seasoned concert photographer and a fan with a phone is quite immense.
I don't argue with the sponsor part though, however, the new world order of "sponsored" things is making me skeptical - see https://www.theatlantic.com/technology/archive/2018/12/influ...
Everybody has a device that can take photos - that doesn't make them photographers. The difference between a seasoned concert photographer and a fan with a phone is quite immense.
I don't argue with the sponsor part though, however, the new world order of "sponsored" things is making me skeptical - see https://www.theatlantic.com/technology/archive/2018/12/influ...
A great example of how an experienced photographer is more than just a body and a camera is contained within this story itself. The quality difference between the photograph the guy took a decade ago and the one he took this year was striking.
Camera technology has come a long way in a decade too
Photographs in the submitted article aren't particularly good though.
That is a bit out of the question, and is also a matter of personal taste.
Apart from the taste, making good concert/event photos is challenging, especially with modern, narrow band lighting systems (LEDs), where if there's blue light on the stage, it will only hit the blue sensors, which is usually 1/4th of the total pixels you have.
Apart from the taste, making good concert/event photos is challenging, especially with modern, narrow band lighting systems (LEDs), where if there's blue light on the stage, it will only hit the blue sensors, which is usually 1/4th of the total pixels you have.
> Everybody is a photographer today
More like "everybody is a shitty photographer today". Most people have no clue what the f they are doing and calling themselves a photographer is just plain stupid.
There are many people that 'take a picture', just like there are many that 'drive a car' or 'work at Burger King'. Doesn't mean they suddenly are a professional, or know what they are doing. Taking a picture isn't photography, just like driving a car doesn't make you a formula one racer and working at Burger King doesn't make you a five star chef.
More like "everybody is a shitty photographer today". Most people have no clue what the f they are doing and calling themselves a photographer is just plain stupid.
There are many people that 'take a picture', just like there are many that 'drive a car' or 'work at Burger King'. Doesn't mean they suddenly are a professional, or know what they are doing. Taking a picture isn't photography, just like driving a car doesn't make you a formula one racer and working at Burger King doesn't make you a five star chef.
Maybe the point is that for most purposes, a Burger King or Uber driver level of quality for photography is good enough.
When someone says everyone is a photographer today because smartphones, I kinda want to see their photos.
https://www.youtube.com/watch?v=Y7aLiIL75q0&t=4m46s
It's like saying most people can grow hair and move their heads around, and today everybody can distort and speed up any sound file on their phone, so who needs metal bands.
https://www.youtube.com/watch?v=Y7aLiIL75q0&t=4m46s
It's like saying most people can grow hair and move their heads around, and today everybody can distort and speed up any sound file on their phone, so who needs metal bands.
> Everybody is a photographer today
Same as everybody is a programmer - I mean, everyone has a machine capable of it, right?
Same as everybody is a programmer - I mean, everyone has a machine capable of it, right?
My thoughts: a) doesn't IG have "repost" built in? In that case you'd probably give them and their users a license to repost by uploading it there.
b) AE behaved like total jerks but they are a mainstream pop metal band, so it's not really surprising.
b) AE behaved like total jerks but they are a mainstream pop metal band, so it's not really surprising.
>AE behaved like total jerks but they are a mainstream pop metal band, so it's not really surprising.
It's a little weird that they got so vitriolic in defense of a sponsor, having no stake in it themselves. Not extremely weird, but a little weird.
It's a little weird that they got so vitriolic in defense of a sponsor, having no stake in it themselves. Not extremely weird, but a little weird.
Based on the reading it appears that the clothing company sponsors are a small etsy style company owned by close friends of the band.
So they have a personal stake... plus a commercial one if they want more merch to wear by keeping the sponsor happy.
So they have a personal stake... plus a commercial one if they want more merch to wear by keeping the sponsor happy.
I find it terrifying how easy it is to influence people, basically, half the internet jumped to the conclusion that the band is in the wrong based on a single article, depicting only one point of view, witch conveniently leaves out the fact that most likely the photographer signed an agreement allowing the band to do whatever they see fit with the photos produced at the event. Plus the thing happened 6 months ago and was surfaced at a very convenient moment for both the band to not be able to react quickly and hit their bottom line.
Its extremely uncharitable to assume he signed something. He even mentions in his article that other bands do require signing a license agreement to photograph but this band did not.
Can you please point me to the paragraph stating this? I have troubles finding it
> In the past, artists like Taylor Swift, Lady Gaga, and even The Foo Fighters, have gone beyond merely assuming that they have this right, choosing instead to force concert photographers to sign contracts where they have to, quite literally, surrender all of their rights over the photos. Aware of the fact that most photographers are not exactly versed on legal terminology, that photo pits aren’t great places to read contracts, and that many photographers simply can’t afford not to shoot a big band, artists have been able to profit from the many photographers that, for whatever reason, end up signing their rights away.
Thanks, forgot about that, but it doesn't imply he didn't sign such an agreement.
It's been vehiculated that in Nederland, a third party photographer has to sign an agreement, that states the photographer retains the copyright, while the artists retain the right to use the images as they see fit. Giving these pictures away, for promotional reasons, to a small subset of close to the band 3rd parties, like fan clubs and sponsors, sounds to me like fair use of the right the artist has.
About how fair this arrangement is, you should remember that photographers with an accreditation do not pay the admission fee for the event and for a 3 days festival this is quite a hefty fee, I payed about 600 GBP for 3 tickets for Graspop festival.
About how fair this arrangement is, you should remember that photographers with an accreditation do not pay the admission fee for the event and for a 3 days festival this is quite a hefty fee, I payed about 600 GBP for 3 tickets for Graspop festival.
I suppose metal bands aren't making as much money as they did 20 years ago? that's probably why they have to put in the extra effort to hang on to the sponsor. Perhaps I'm wrong.
I mean really, if you're not one of the old-timers like Iron Maiden or Megadeth or something, is being a metal artist really a good career choice these days? Genuinely want to know.
I mean really, if you're not one of the old-timers like Iron Maiden or Megadeth or something, is being a metal artist really a good career choice these days? Genuinely want to know.
Being a metal artist hasn't ever really been a good career choice, unless you consider glam a metal genre, in which case for a while in the 80s it at least had a large potential payoff if you got really lucky, sort of like a high effort lottery ticket.
Repost, by definition, should be the exact same content. Repost with changing a the text is not a repost, but a re-use, or a share.
Regarding (a), Instagram has no built-in "repost" feature. There are entire apps [1] devoted just to this purpose.
[1]: http://repostapp.com/ (note: I have not personally used this app)
[1]: http://repostapp.com/ (note: I have not personally used this app)
Having not heard of Arch Enemy before this article, it's too bad for them. Their music is directly in line with my tastes (I watched about 30s of the YouTube video linked). I'm a music fan that doesn't mind paying to purchase albums or even go to shows. But because of their mismanagement of this situation (which likely extends to many others as well), I won't be giving them any of my money.
If you liked Arch Enemy, I suggest you check out some of the other melodic death metal bands in the Gothenburg style. Dark Tranquility would my first pick, Soilwork is pretty good too.
If we're doing band recommendations along AE lines, I'd throw in Barren Earth, Amorphis and Omnium Gatherum and Insomnium as well.
ne obliviscaris and wolves in the throne room are 2 other fantastic atmospheric black metal bands.
Soilwork - Stabbing The Drama is one of my favourite albums of all time.
Site is down now, archive is here: http://archive.is/1mbNY
Edit: their webpage is back up for now, but I'm keeping this around just in case.
Edit: their webpage is back up for now, but I'm keeping this around just in case.
video version: https://www.youtube.com/watch?v=iW1TRQeo7gk
Well, this goes to show that being technically correct only goes so far.
> “no band wants to have photographers on site who later send such threatening correspondence to monetise on their images.”
Not surprising. Photographer has the prerogative of producing copyright images, they just "forgot" that taking pictures of concerts is half the story. I'm not surprised the band acted like they acted, they probably get a lot of those as well.
It's like the recruiters that find a CV on the internet then try to apply as the person and charge a fee.
> “no band wants to have photographers on site who later send such threatening correspondence to monetise on their images.”
Not surprising. Photographer has the prerogative of producing copyright images, they just "forgot" that taking pictures of concerts is half the story. I'm not surprised the band acted like they acted, they probably get a lot of those as well.
It's like the recruiters that find a CV on the internet then try to apply as the person and charge a fee.
I'm surprised that a lot of people are missing the point that they also chose to use the image. If there are tons of much more talented but replaceable photographers that are willing to give their work away for free, why did they have to use his photo?
Correct, the commercial use was an issue.
Almost all of the value of a photo taken close up at a concert like this derives from the band rather than the photographer. The photographer is infinitely more substitutable. The photo is normally only interesting to people who are interested in the band, rather than for the craft of the photo itself.
Legally, the photographer in this story is correct. But I think he's dealing in absolutes in a situation where the economics are strongly in the band's favour. The band would be much better off with photographers that signed over copyright and it's not difficult for them to get that, because they're adding most of the value. The fact that they didn't, and permitted this chap to take the photos he did, is IMO down to them not having had this experience before. Now they have, and perhaps they'll be smarter about it going forward.
Legally, the photographer in this story is correct. But I think he's dealing in absolutes in a situation where the economics are strongly in the band's favour. The band would be much better off with photographers that signed over copyright and it's not difficult for them to get that, because they're adding most of the value. The fact that they didn't, and permitted this chap to take the photos he did, is IMO down to them not having had this experience before. Now they have, and perhaps they'll be smarter about it going forward.
I see a lot of people in this thread that view band photographers as disposable chaff that don't deserve the same copyright protection as everyone else, but I doubt that anyone would want to take legal rights away from migrant fruit pickers in California. Migrant fruit pickers are very replaceable, so that doesn't add up.
Edit: In response to the shadowbanned comment that I can't reply to, I don't think there is a line beyond which extremely poor economic negotiation power crosses over into reduced status in the legal system in any court system or even moral system in the world... Except for metal band photographers, apparently. (With the possible second exception of third world countries.)
Edit: In response to the shadowbanned comment that I can't reply to, I don't think there is a line beyond which extremely poor economic negotiation power crosses over into reduced status in the legal system in any court system or even moral system in the world... Except for metal band photographers, apparently. (With the possible second exception of third world countries.)
Wait until you hear how the music industry treats session musicians...
That sounds like an interesting thread in itself. Please share some highlights, or rather...lowlights.
In the 70s, Clare Torry was paid £30 for providing the improvisational vocals in Pink Floyd's "The Great Gig in the Sky" on "The Dark Side of the Moon." Over the next several decades, she received none of the revenue earned from the massive success of this album.
In 2005, she sued Pink Floyd and EMI for songwriting royalties, and reached a settlement with them. She is now credited as a composer of the song in modern releases of the album.
Most session musicians probably aren't so fortunate.
https://en.wikipedia.org/wiki/Clare_Torry
In 2005, she sued Pink Floyd and EMI for songwriting royalties, and reached a settlement with them. She is now credited as a composer of the song in modern releases of the album.
Most session musicians probably aren't so fortunate.
https://en.wikipedia.org/wiki/Clare_Torry
[deleted]
If migrant fruit pickers were claiming to have legal rights over digital representations of specific fruits, then I think people would have similar reactions.
Fruit picking is hard work. Photography is fun to the point that a lot of people do it as a hobby.
So is programming. Should clients be able to just take your code without paying for it?
I'm talking about what is the case, not what should be.
At the moment people with programming skills are much rarer than demand for programmers. No doubt if and when that crosses over we'll see the bottom fall out of programmer pay.
At the moment people with programming skills are much rarer than demand for programmers. No doubt if and when that crosses over we'll see the bottom fall out of programmer pay.
"Legal rights" is a vague phrase. I certainly don't think migrant fruit pickers should be able to copyright their fruits!
Copyright is a tool for giving a temporary government monopoly—a distortion of the free market—for the promotion of "science and useful arts". It attempts to emulate the market behavior of physical objects (like, oh, fruits) when the valuable work is easy to copy. I believe certain things about its appropriate use and the markets to which it is suited. That has little bearing on my beliefs about other markets or the value of free markets in general. I believe copyright is a bad tool to protect labor rights (just as I believe machine guns are a bad tool to protect labor rights); that doesn't mean I think labor rights aren't worth protecting.
Besides, my actual belief is migrant farm laborers should be documented (i.e., we should have open borders, the historic policy of America back when it allegedly was "great") and unionized and receive a UBI and preferably live under fully automated luxury gay space communism. At that point copyright doesn't really matter, certainly not as a tool to protect fungible workers.
Copyright is a tool for giving a temporary government monopoly—a distortion of the free market—for the promotion of "science and useful arts". It attempts to emulate the market behavior of physical objects (like, oh, fruits) when the valuable work is easy to copy. I believe certain things about its appropriate use and the markets to which it is suited. That has little bearing on my beliefs about other markets or the value of free markets in general. I believe copyright is a bad tool to protect labor rights (just as I believe machine guns are a bad tool to protect labor rights); that doesn't mean I think labor rights aren't worth protecting.
Besides, my actual belief is migrant farm laborers should be documented (i.e., we should have open borders, the historic policy of America back when it allegedly was "great") and unionized and receive a UBI and preferably live under fully automated luxury gay space communism. At that point copyright doesn't really matter, certainly not as a tool to protect fungible workers.
I am wondering - did they even wave their rights away for commercial use by letting that guy take pictures of them?
The way I am seeing is that he is trying to make money off them without compensating them as his 'models'.
The way I am seeing is that he is trying to make money off them without compensating them as his 'models'.
Well, the author claims that they never had any rights to the photo he took at all. They still could have used another photo, but they instead picked what they thought was the best photo (his), using it without even contacting him.
But he can't be taking pictures at a concert of people and bands without their consent and then try selling these pictures to brands for commercial use.
Legally you can take a stranger's photo for yourself and keep it if it's in public. Unless there is a being model case the photo belongs to the photographer. So anyone can take pictures of people and bands in concerts and they do. Thing is how they're using them. If you sell that to a brand there should be a model release. On every other case even for the person itself he or she should pay for the sharing license. Take real models as an example they are being photographed and they are released in stock photo markets the only thing they can do is finding themselves on that marketplace. Later on they share stock photo branded screenshots :). Because they don't pay for the original ones. They need to pay for the photos that includes them as the subject.
He most likely does not have the right to sell the pictures without the bands consent - thats why you have to have "model releases". But this doesn't matter, as he didn't try to sell the pictures. The case is based on unlicensed commercial usage of the photographers pictures.
If I were to translate "Harry Potter" into a different language, the copyright of the translation would be clearly mine. I would not be allowed to sell it without an agreement with the copyright holder of "Harry Potter", neither would Joanne Rowling be allowed to use my translation without my agreement.
If I were to translate "Harry Potter" into a different language, the copyright of the translation would be clearly mine. I would not be allowed to sell it without an agreement with the copyright holder of "Harry Potter", neither would Joanne Rowling be allowed to use my translation without my agreement.
He did not try to sell it, that's the whole point.
If they use it for commercial purposes, pay someone. He was fine until it was used to advertise outfits.
If they use it for commercial purposes, pay someone. He was fine until it was used to advertise outfits.
I am wondering why you feel this way. Legally it's wrong. Even under GDPR it's art. Photos taken for art purpose doesn't need any consent which also protects even street photographers.
parent explicitly was talking about not-art use:
> try selling these pictures to brands for commercial use
Also, GDPR does not have an art exception per se, but it allows member states to create them. Legality of street photography is a complex topic and viewed differently in different jurisdictions.
> try selling these pictures to brands for commercial use
Also, GDPR does not have an art exception per se, but it allows member states to create them. Legality of street photography is a complex topic and viewed differently in different jurisdictions.
Taking a photo is a different action. You don't need a consent for it in public. Just taking a photo is the sole art purpose if you the aim is not distributing it. Selling those pictures to brands is a different action. Selling those pictures to the subject itself is different action. Using those pictures as a papparazzi is a different action. All of them is as complex as street photography. Legality of all photography intents viewed differently in different jurisdictions.
The crowd doesn’t really matter but I would think the band itself would have publicity rights for any commercial (in the sense of marketing or promotional) use. The photographer could presumably sell copies, publish in magazines, etc. A press pass for a concert could have other restrictions I guess but the whole purpose of a pro photographer taking pictures is to sell them.
I'm not suggesting taking legal rights away from the photographer. I already said I think the photographer is legally in the right. I don't want courts to switch things up, or legislators to change the situation.
What I am saying is that the economics of the situation exist. They can't be wished away. Outcomes tend to follow economics, even if they're illegal, as the existence of black markets, forced arbitration, legal battles based on spending and might rather than right, etc. show. And sometimes the economics are morally superior to the legality, even when the legality is nice and clear.
Part ownership of content production would be morally superior to the bright line clarity of copyright ownership. Ideally, it would reflect how much of the global culture is a part of content, how much is ideas floating in the air, and the multitudes of people who contribute to the gestalt of a moment. But the accounting is impossible. So the legality is simple, and sometimes it creates conflict. The answer is usually more law - signed agreements up front, etc.
A copyright that accounted for value added - if it were possible, calculable without continuous auctions and comparisons against alternatives, which is of course impossible generally - would accrue mostly to the band (and, recursively, to people who influenced the band), I reckon. But I think trying to implement something like that is impossible, and like I said, I don't think things should change. Instead, the band should make photographers sign something first.
What I am saying is that the economics of the situation exist. They can't be wished away. Outcomes tend to follow economics, even if they're illegal, as the existence of black markets, forced arbitration, legal battles based on spending and might rather than right, etc. show. And sometimes the economics are morally superior to the legality, even when the legality is nice and clear.
Part ownership of content production would be morally superior to the bright line clarity of copyright ownership. Ideally, it would reflect how much of the global culture is a part of content, how much is ideas floating in the air, and the multitudes of people who contribute to the gestalt of a moment. But the accounting is impossible. So the legality is simple, and sometimes it creates conflict. The answer is usually more law - signed agreements up front, etc.
A copyright that accounted for value added - if it were possible, calculable without continuous auctions and comparisons against alternatives, which is of course impossible generally - would accrue mostly to the band (and, recursively, to people who influenced the band), I reckon. But I think trying to implement something like that is impossible, and like I said, I don't think things should change. Instead, the band should make photographers sign something first.
>Part ownership of content production would be morally superior
Whether or not this is true, the band is transgressing a hidden rule that is actually more important than copyright. They are changing the deal after the fact. If they had required the photographer to sign away his rights, he would have had the option to find another band that didn't. By not requiring any signatures but then turning around and acting like they got them, they are essentially tricking everyone. The idea that you are not supposed to do this is both pretty intuitive to everyone, and also is more or less the fundamental axiom of contract law. I'd expect an anarchist metal band to be anti-civic, but not like that! ;)
Whether or not this is true, the band is transgressing a hidden rule that is actually more important than copyright. They are changing the deal after the fact. If they had required the photographer to sign away his rights, he would have had the option to find another band that didn't. By not requiring any signatures but then turning around and acting like they got them, they are essentially tricking everyone. The idea that you are not supposed to do this is both pretty intuitive to everyone, and also is more or less the fundamental axiom of contract law. I'd expect an anarchist metal band to be anti-civic, but not like that! ;)
> They are changing the deal after the fact
What deal is that?
The way I see it, the photographer and the band each had different ideas of "the deal". The degree to which the deal "changed" is the difference between prior conceptions of the deal and the reconciliation when the conceptions came into conflict and reached a synthesis.
The band thought they were creating something and thought they could merchandise it.
The photographer thought he was creating something and thought he could stop someone else merchandising it.
The photographer was legally right. I suspect the band is more morally right than wrong in an ideal world of copyrights - and I think copyright is a very imperfect concept - and I think they have the economic power to ensure their merchandise is legally sound in future, having learned this lesson.
What deal is that?
The way I see it, the photographer and the band each had different ideas of "the deal". The degree to which the deal "changed" is the difference between prior conceptions of the deal and the reconciliation when the conceptions came into conflict and reached a synthesis.
The band thought they were creating something and thought they could merchandise it.
The photographer thought he was creating something and thought he could stop someone else merchandising it.
The photographer was legally right. I suspect the band is more morally right than wrong in an ideal world of copyrights - and I think copyright is a very imperfect concept - and I think they have the economic power to ensure their merchandise is legally sound in future, having learned this lesson.
>The band thought they were creating something and thought they could merchandise it.
If a band member had gotten down off the stage to take a photo, there would be no problem. They could also have gotten the manager to do it. Instead, they found a photographer who was under the impression that he would be afforded the rights normally granted by society, and got him to do it - without even letting him know that they intended to behave as if he did not have those rights.
If a band member had gotten down off the stage to take a photo, there would be no problem. They could also have gotten the manager to do it. Instead, they found a photographer who was under the impression that he would be afforded the rights normally granted by society, and got him to do it - without even letting him know that they intended to behave as if he did not have those rights.
What deal? You still haven't clarified your position.
> the rights normally granted by society
What kind of weasel words are these? What you mean to say is copyright as enshrined in law. He has not lost these rights, and I'm not advocating that he lose these rights.
> the rights normally granted by society
What kind of weasel words are these? What you mean to say is copyright as enshrined in law. He has not lost these rights, and I'm not advocating that he lose these rights.
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I don’t think an experienced concert photographer is as substitutable as you’re claiming. Just compare the image from this photographer’s early concert photography to his recent work. It takes time and effort to get to a place where you can take good pictures like this. If the band doesn’t appreciate that experience, that’s their right. But, as the photographer discussed in the article, I suspect their decision doesn’t reflect the opinion of the broader music community.
It's also worth pointing out that they consciously chose his photograph to use in their promotional material, which means that out of every photographer that was present he is the most likely to be skilled. If the sponsor had used a random grainy cellphone picture my heartstrings would be a little more elastic, but they clearly went for the one they thought was the most professional.
Wouldn't it be better to fly stealth drone into the concert which captures photos then sell it in under ground market to fans.
Haha, I know something like that :D
Almost all of the value of a photo taken close up at a concert like this derives from the band rather than the photographer.
Indeed, just like almost all of the value in a startup comes from the MBA bros with the “idea” and the engineers are infinitely substitutable.
Wait, what?
Indeed, just like almost all of the value in a startup comes from the MBA bros with the “idea” and the engineers are infinitely substitutable.
Wait, what?
The value in a startup comes from finding a profitable seam of product market fit. It doesn't take an MBA to do that, but a stereotypical engineer isn't likely to find it either - it's all too common for an engineer to think that good engineering is what makes a good product, when in fact it's giving people something they want that matters.
And a photo can be technically excellent, but if it's not of something interesting, it's unlikely to have broad interest.
And a photo can be technically excellent, but if it's not of something interesting, it's unlikely to have broad interest.
The problem is now that everybody has an always available camera, everybody feels like a photographer, probably even a decent one.
When it comes to explaining what makes a photo "good", there's the problem of it being a creative endeavour, so there are no strict guidelines.
The point remains however, they chose his photo. Likely because it's a good photo: lighting, composition, pose, all work well, and these are more-or-less definable criteria of what makes a photo good.
That's not an accident. Professional photographers know how to create the time and place for such photos to happen, unlike an average person with a camera.
Good photographers cannot easily be substituted by a random crowd with phones, no matter how much they see themselves as "photographers".
There's an art to being in the right time and the right place. It's not that a crowd can't produce good pictures, it's that a professional photographer can produce them with higher frequency and with intent.
It could be just as easily argued that the "craft of the photo" here conveys a dynamic that is very favorable for the band (which is probably why they chose it), urging people who only peripherally know the band to check them out because they connect with that dynamic, so the "craft" here is more valuable than the subject.
When it comes to explaining what makes a photo "good", there's the problem of it being a creative endeavour, so there are no strict guidelines.
The point remains however, they chose his photo. Likely because it's a good photo: lighting, composition, pose, all work well, and these are more-or-less definable criteria of what makes a photo good.
That's not an accident. Professional photographers know how to create the time and place for such photos to happen, unlike an average person with a camera.
Good photographers cannot easily be substituted by a random crowd with phones, no matter how much they see themselves as "photographers".
There's an art to being in the right time and the right place. It's not that a crowd can't produce good pictures, it's that a professional photographer can produce them with higher frequency and with intent.
It could be just as easily argued that the "craft of the photo" here conveys a dynamic that is very favorable for the band (which is probably why they chose it), urging people who only peripherally know the band to check them out because they connect with that dynamic, so the "craft" here is more valuable than the subject.
This doesn’t really conflict with the claim that the vast majority of value comes from the band. Yes, it would be possible for a less skilled photographer to take a worse picture of the band from that spot. But the amount of skill and gear required to take that photo is possessed by tens of thousands of people.
The gear required to play metal, or at the very least music, is likely possessed by more people. So by that logic, no value comes from the band either.
> The gear required to play metal, or at the very least music, is likely possessed by more people.
You skipped over the skill part.
Do you think there are more people who can play as well as Arch Enemy, or photograph as well as this guy? My money's on the latter.
> So by that logic, no value comes from the band either.
Not much value, sure, which is why playing in a band is rarely profitable.
You skipped over the skill part.
Do you think there are more people who can play as well as Arch Enemy, or photograph as well as this guy? My money's on the latter.
> So by that logic, no value comes from the band either.
Not much value, sure, which is why playing in a band is rarely profitable.
> You skipped over the skill part.
I personally know more skilled musicians (three) than I do photographers (one). The music industry is dominated by luck precisely because there is such as a colossal pool of artists to choose from.
I personally know more skilled musicians (three) than I do photographers (one). The music industry is dominated by luck precisely because there is such as a colossal pool of artists to choose from.
> It could be just as easily argued that the "craft of the photo" here conveys a dynamic that is very favorable for the band (which is probably why they chose it), urging people who only peripherally know the band to check them out because they connect with that dynamic, so the "craft" here is more valuable than the subject.
It can be argued - you've just argued it - but I think it's a stretch. Selling something to an audience you've already built is more valuable than a marginal increase in audience, especially if it's a static visual and the draw of the topic is dynamic.
If the photographer had his own distribution channel, and could put the photo in front of lots of people who don't know about the band, then your argument would make more sense. But then it's a marketing value proposition, not a technical photo quality value prop.
Oh and I agree that the photo isn't worthless. It's just not a strong bargaining position relative to the band, and trying to leverage law to get a better bargaining position isn't likely to turn out well, and there's no reason to believe that it won't turn out even better for the band in the future.
It can be argued - you've just argued it - but I think it's a stretch. Selling something to an audience you've already built is more valuable than a marginal increase in audience, especially if it's a static visual and the draw of the topic is dynamic.
If the photographer had his own distribution channel, and could put the photo in front of lots of people who don't know about the band, then your argument would make more sense. But then it's a marketing value proposition, not a technical photo quality value prop.
Oh and I agree that the photo isn't worthless. It's just not a strong bargaining position relative to the band, and trying to leverage law to get a better bargaining position isn't likely to turn out well, and there's no reason to believe that it won't turn out even better for the band in the future.
There is a lot of competition in the known-but-not-that-well-known bands space in any genre. Having world class pictures gets you in magazines and online publications, it creates a presence, especially since metal is a very visual genre. I don't think it's that much of a stretch, but we can agree to disagree there I hope.
> a strong bargaining position relative to the band
He doesn't need a bargaining position. A clothing company infringed on his work, that's the whole of it. The band is not even involved. It's just it turned out someone in the band was likely closely related to the company and it was perceived as some sort of extortion so they decided to get personally involved apparently without being very clueful about the matter.
It really seems like a misunderstanding as was suggested ("Wait, photographs are subject to copyright too?") that should have ended at the manager, or at least their legal counsel, but somehow management was an idiot and doubled down being defensive and vindictive for no reason at all for what is really not some extraordinary practice.
I'm unsure the photographer is trying to leverage the law or get a better bargaining position here, but he sure should try to retain access to venues by explaining his side of the story, hoping that other bands and organisers are a bit more clueful about copyright and realise that coverage and good photos don't appear out of thin air.
P.S. I really doubt a simple message from the band stating that the clothing company was small business and a personal friend would not only have prevented the situation, but delighted the photographer in lieu of any monetary compensation.
> a strong bargaining position relative to the band
He doesn't need a bargaining position. A clothing company infringed on his work, that's the whole of it. The band is not even involved. It's just it turned out someone in the band was likely closely related to the company and it was perceived as some sort of extortion so they decided to get personally involved apparently without being very clueful about the matter.
It really seems like a misunderstanding as was suggested ("Wait, photographs are subject to copyright too?") that should have ended at the manager, or at least their legal counsel, but somehow management was an idiot and doubled down being defensive and vindictive for no reason at all for what is really not some extraordinary practice.
I'm unsure the photographer is trying to leverage the law or get a better bargaining position here, but he sure should try to retain access to venues by explaining his side of the story, hoping that other bands and organisers are a bit more clueful about copyright and realise that coverage and good photos don't appear out of thin air.
P.S. I really doubt a simple message from the band stating that the clothing company was small business and a personal friend would not only have prevented the situation, but delighted the photographer in lieu of any monetary compensation.
>Almost all of the value of a photo taken close up at a concert like this derives from the band rather than the photographer. The photographer is infinitely more substitutable.
You are by your own definition completely wrong. If the photographer is so substitutable and adds so little value like you argue, then they could have used anyone else including their own. Yet in actual fact they (and more to the point a clothing sponsor engaging in commercial advertising use) did not do that, they chose his. However many hundreds/thousands of people with cellphones and other cameras, however many hundreds of thousands of random people in the country they could have just given a camera and had a specific official hired "photographer" to take photos that they'd own the copyright to, and yet they didn't and just took someone else's without asking instead.
Again by definition that means that they found his particularly valuable amongst everything else, and didn't find the cost/benefit right to hire somebody random for minimum wage to photograph for hire. This isn't some gray case whatsoever, there is no fair use here, it's not fans, it's not some perpetual copyright shenanigans, or any of the other many issues with IP. It's a company & band violating copyright immediately and using a photo for advertisement getting snooty about being asked to give 100 clams to charity. That's a pretty amazing thing for you to defend.
>The photo is normally only interesting to people who are interested in the band, rather than for the craft of the photo itself.
You can say "normally" but we're not talking averages, we're talking a specific case where the photo was "interesting" to a for-profit corp for advertising purposes.
>But I think he's dealing in absolutes in a situation where the economics are strongly in the band's favour.
"Absolutes" would mean a immediate c&d or for that matter a demand for restitution of at least the mandatory minimum statutory penalties. "If you want to keep using it please either pay me the normal amount or give 1/5 normal amount to charity" doesn't seem so bad to me at least. It was entirely their blunder and sense of entitlement.
And the bit about hypocrisy for a "anarchist" metal band that also complains about infringement of their IP are pretty on point too if you want to go beyond legalities.
You are by your own definition completely wrong. If the photographer is so substitutable and adds so little value like you argue, then they could have used anyone else including their own. Yet in actual fact they (and more to the point a clothing sponsor engaging in commercial advertising use) did not do that, they chose his. However many hundreds/thousands of people with cellphones and other cameras, however many hundreds of thousands of random people in the country they could have just given a camera and had a specific official hired "photographer" to take photos that they'd own the copyright to, and yet they didn't and just took someone else's without asking instead.
Again by definition that means that they found his particularly valuable amongst everything else, and didn't find the cost/benefit right to hire somebody random for minimum wage to photograph for hire. This isn't some gray case whatsoever, there is no fair use here, it's not fans, it's not some perpetual copyright shenanigans, or any of the other many issues with IP. It's a company & band violating copyright immediately and using a photo for advertisement getting snooty about being asked to give 100 clams to charity. That's a pretty amazing thing for you to defend.
>The photo is normally only interesting to people who are interested in the band, rather than for the craft of the photo itself.
You can say "normally" but we're not talking averages, we're talking a specific case where the photo was "interesting" to a for-profit corp for advertising purposes.
>But I think he's dealing in absolutes in a situation where the economics are strongly in the band's favour.
"Absolutes" would mean a immediate c&d or for that matter a demand for restitution of at least the mandatory minimum statutory penalties. "If you want to keep using it please either pay me the normal amount or give 1/5 normal amount to charity" doesn't seem so bad to me at least. It was entirely their blunder and sense of entitlement.
And the bit about hypocrisy for a "anarchist" metal band that also complains about infringement of their IP are pretty on point too if you want to go beyond legalities.
Your argument doesn’t make sense. The fact that they chose some specific photograph doesn’t disprove that photographers are largely substitutable. Of course some specific photograph had to be chosen. If you chose no photograph then the issue wouldn’t exist. Choosing a bunch of photographs and blending them together is nonsensical. So yes, one photograph was chosen. But that doesn’t mean they couldn’t have chosen a different photograph. The only difference would be that a different photographer would be writing the same article about their interactions with the band and sponsor.
>The fact that they chose some specific photograph doesn’t disprove that photographers are largely substitutable.
It does, that's a market at work. Why do I choose one thing over another one when there are lots of competitive options and essentially no barrier to entry? Because I value it more, I think it's better for me then whatever else there was. This isn't an area of natural monopoly, in fact it's about as polar opposite as can be.
>Of course some specific photograph had to be chosen
Some photograph is not this photograph. You need to choose "some" car or "some" phone, that doesn't mean they're all perfectly interchangeable. Furthermore no, there was no "need" to choose anything that they didn't own copyright to or wouldn't negotiate for, because they could have made their own or asked any other person who took photos at that concert, many of whom likely would cheerfully give it up for free. This was for an advertisement. You're reversing logic here.
>But that doesn’t mean they couldn’t have chosen a different photograph.
Yes they could have which is precisely why it's so wrong. You could have chosen to use/buy, or not use/buy, many different things over the course of your life too. I somehow doubt you just roll a die for every decision you ever make though.
>The only difference would be that a different photographer would be writing the same article about their interactions with the band and sponsor.
No, the whole point is that different people will put different values and terms on their work. So if you don't agree with one person's, you go to somebody else. Not liking their terms though doesn't mean you necessarily get to just take it. Seriously, how could you possibly even get that into your mind in a case like this?
And again, if photographers are so interchangeable then this is even more trivial, because they could find any random out of work person or student or fan and offer to pay them minimum wage (or less, many fans might do it just to be able to attend a paid concert for free or get some beer money or something) and take pictures as their agent. Then they'd simply own the copyright directly. If photographer doesn't matter then why not do that? "Equivalent photo" and they'd get it for 10-20 euros (or less).
It does, that's a market at work. Why do I choose one thing over another one when there are lots of competitive options and essentially no barrier to entry? Because I value it more, I think it's better for me then whatever else there was. This isn't an area of natural monopoly, in fact it's about as polar opposite as can be.
>Of course some specific photograph had to be chosen
Some photograph is not this photograph. You need to choose "some" car or "some" phone, that doesn't mean they're all perfectly interchangeable. Furthermore no, there was no "need" to choose anything that they didn't own copyright to or wouldn't negotiate for, because they could have made their own or asked any other person who took photos at that concert, many of whom likely would cheerfully give it up for free. This was for an advertisement. You're reversing logic here.
>But that doesn’t mean they couldn’t have chosen a different photograph.
Yes they could have which is precisely why it's so wrong. You could have chosen to use/buy, or not use/buy, many different things over the course of your life too. I somehow doubt you just roll a die for every decision you ever make though.
>The only difference would be that a different photographer would be writing the same article about their interactions with the band and sponsor.
No, the whole point is that different people will put different values and terms on their work. So if you don't agree with one person's, you go to somebody else. Not liking their terms though doesn't mean you necessarily get to just take it. Seriously, how could you possibly even get that into your mind in a case like this?
And again, if photographers are so interchangeable then this is even more trivial, because they could find any random out of work person or student or fan and offer to pay them minimum wage (or less, many fans might do it just to be able to attend a paid concert for free or get some beer money or something) and take pictures as their agent. Then they'd simply own the copyright directly. If photographer doesn't matter then why not do that? "Equivalent photo" and they'd get it for 10-20 euros (or less).
> Why do I choose one thing over another one when there are lots of competitive options and essentially no barrier to entry?
Umm, because you wanted one of the many substitutable options. You didn’t care which one, because they were largely indistinguishable from one another, so you chose one randomly. It makes absolutely no sense to claim that, because they chose one photograph, then clearly there werentnother substitutable photographs.
Umm, because you wanted one of the many substitutable options. You didn’t care which one, because they were largely indistinguishable from one another, so you chose one randomly. It makes absolutely no sense to claim that, because they chose one photograph, then clearly there werentnother substitutable photographs.
>Umm, because you wanted one of the many substitutable options.
Even for total commodities which are perfectly substitutable the fact remains that offering terms (including of course price) are an integral part of the product. If I'm selecting between two containers of flour that I knew were truly perfectly the same and chose the one that was cheaper, that's not random either. The terms under which someone makes a photo available is part of choosing one. They could have chosen one that was put into public domain or something like Creative Commons Attribution 4.0 International, or that someone was willing to just give for free, but didn't.
And of course in real life even our most basic commodities often merely have smaller differences, but still differences. Some brands may still be more reliable, or offer specific differentiation, or just make people feel subjectively better. This is hardly some new discovery of human psychology.
Which gets into this:
>You didn’t care which one, because they were largely indistinguishable from one another, so you chose one randomly.
Not that you actually support an assertion that the company Thunderball Clothing did in fact just use a random number generator and somehow got from that to his photo, but even if you did that would weaken your argument, not support it. Because if the products in question are indistinguishable, that's all the more reason to go with whatever has the most favorable terms. In a less competitive market there becomes more of an argument that someone's terms could have elements that were unconscionable, but in a commodified one "take it or leave it" is at its most justified.
Again, I don't think you or anyone else actually chooses at random very often. "Largely indistinguishable" is not "indistinguishable". Making a decision tree super simple ("lowest price wins" or "the first one that comes up in search" say) isn't random either. But even if you do choose randomly, that doesn't give the moral (let alone legal) right to just take it on your terms.
Even for total commodities which are perfectly substitutable the fact remains that offering terms (including of course price) are an integral part of the product. If I'm selecting between two containers of flour that I knew were truly perfectly the same and chose the one that was cheaper, that's not random either. The terms under which someone makes a photo available is part of choosing one. They could have chosen one that was put into public domain or something like Creative Commons Attribution 4.0 International, or that someone was willing to just give for free, but didn't.
And of course in real life even our most basic commodities often merely have smaller differences, but still differences. Some brands may still be more reliable, or offer specific differentiation, or just make people feel subjectively better. This is hardly some new discovery of human psychology.
Which gets into this:
>You didn’t care which one, because they were largely indistinguishable from one another, so you chose one randomly.
Not that you actually support an assertion that the company Thunderball Clothing did in fact just use a random number generator and somehow got from that to his photo, but even if you did that would weaken your argument, not support it. Because if the products in question are indistinguishable, that's all the more reason to go with whatever has the most favorable terms. In a less competitive market there becomes more of an argument that someone's terms could have elements that were unconscionable, but in a commodified one "take it or leave it" is at its most justified.
Again, I don't think you or anyone else actually chooses at random very often. "Largely indistinguishable" is not "indistinguishable". Making a decision tree super simple ("lowest price wins" or "the first one that comes up in search" say) isn't random either. But even if you do choose randomly, that doesn't give the moral (let alone legal) right to just take it on your terms.
>You are by your own definition completely wrong. If the photographer is so substitutable and adds so little value like you argue, then they could have used anyone else including their own. Yet in actual fact they (and more to the point a clothing sponsor engaging in commercial advertising use) did not do that, they chose his.
If you go buy an apple at the grocery store you pick it out of a hundred others but that does not mean there is anything special about that particular apple. It's just the one you happened to pick out of the many of other equally good ones. And I'm sure we'd all be equally annoyed if some apple picker e-mailed us saying they normally charge 500 per apple picked but they'll settle for a 100 dollar donation in this case.
If you go buy an apple at the grocery store you pick it out of a hundred others but that does not mean there is anything special about that particular apple. It's just the one you happened to pick out of the many of other equally good ones. And I'm sure we'd all be equally annoyed if some apple picker e-mailed us saying they normally charge 500 per apple picked but they'll settle for a 100 dollar donation in this case.
Your physical analogy attempt is not merely incorrect but it doesn't support you even taken at face value.
>If you go buy an apple at the grocery store you pick it out of a hundred others but that does not mean there is anything special about that particular apple.
It is a well known fact of marketing that much of the population absolutely will look carefully even at something like a crate of apples and try to pick "the best" one as well as they can, something which has resulted in unfortunate phenomena like supermarket fruits and vegetables being bred for appearance and resilience against shipping rather then taste such as the infamous Red "Delicious" (of course people specifically choosing against appearance for flavor aren't selecting at random either). Also compared to IP where there is infinite reproducibility the more apt analogy to choosing between various photos would be choosing between varieties of apples. Or one kind of apple, but some are organic and some conventional. They're all apples, and you can acquire as many as you wish to pay for, but they aren't all the same nor will their pricing be the same.
>And I'm sure we'd all be equally annoyed if some apple picker e-mailed us saying they normally charge 500 per apple picked but they'll settle for a 100 dollar donation in this case.
Sorry but not all of us would think picking an apple at random would entitle us to walk out of the store with it without paying for it. If after we took $500 worth of apples without paying the actual legal owner emailed us and stated that normally they'd call the police but would settle for a donation of 1/5 normal price to a charity yeah, that'd be pretty decent deal.
It's genuinely kind of weird how you seem to think that you not caring would mean you can have whatever you want on whatever terms you want.
>If you go buy an apple at the grocery store you pick it out of a hundred others but that does not mean there is anything special about that particular apple.
It is a well known fact of marketing that much of the population absolutely will look carefully even at something like a crate of apples and try to pick "the best" one as well as they can, something which has resulted in unfortunate phenomena like supermarket fruits and vegetables being bred for appearance and resilience against shipping rather then taste such as the infamous Red "Delicious" (of course people specifically choosing against appearance for flavor aren't selecting at random either). Also compared to IP where there is infinite reproducibility the more apt analogy to choosing between various photos would be choosing between varieties of apples. Or one kind of apple, but some are organic and some conventional. They're all apples, and you can acquire as many as you wish to pay for, but they aren't all the same nor will their pricing be the same.
>And I'm sure we'd all be equally annoyed if some apple picker e-mailed us saying they normally charge 500 per apple picked but they'll settle for a 100 dollar donation in this case.
Sorry but not all of us would think picking an apple at random would entitle us to walk out of the store with it without paying for it. If after we took $500 worth of apples without paying the actual legal owner emailed us and stated that normally they'd call the police but would settle for a donation of 1/5 normal price to a charity yeah, that'd be pretty decent deal.
It's genuinely kind of weird how you seem to think that you not caring would mean you can have whatever you want on whatever terms you want.
>It is a well known fact of marketing that much of the population absolutely will look carefully even at something like a crate of apples and try to pick "the best" one
Even if they spend a bunch of time picking one that doesn't mean there's anything special about the one they do pick. If you had magical foresight and removed their most preferred one before they began their search they'd just pick a different one and be none the wiser.
>It's genuinely kind of weird how you seem to think that you not caring would mean you can have whatever you want on whatever terms you want.
I have no idea how you came to that conclusion.
Even if they spend a bunch of time picking one that doesn't mean there's anything special about the one they do pick. If you had magical foresight and removed their most preferred one before they began their search they'd just pick a different one and be none the wiser.
>It's genuinely kind of weird how you seem to think that you not caring would mean you can have whatever you want on whatever terms you want.
I have no idea how you came to that conclusion.
>Even if they spend a bunch of time picking one that doesn't mean there's anything special about the one they do pick.
It does, it means it was the one they considered the highest value of what was on hand and sufficient value vs the price and whatever other internal criteria they held. That is literally the foundation of our entire modern economy.
>If you had magical foresight and removed their most preferred one before they began their search they'd just pick a different one and be none the wiser.
Yes, if you took their first pick (or if someone else had come first and chosen it) they'd be left with a reduced pool, which would then be evaluated independently, and they'd choose the "second best" pick, aka, the new first pick. And if the pool was reduced even farther, they'd be forced into further reduced choice, which might still lead to new choices unless all the remaining ones fell below their floor level criteria (perhaps the final apples nobody else would pick were all shriveled and bruised looking), in which case they might choose nothing. Or maybe they desperately want an apple even if normally they wouldn't, and settle but are angry and do not patronize that store in the future. Or maybe they're desperate but willing to travel and just leave and go to a different store. And on and on.
This is weird. Why am I having to explain such fundamental basic decision processes to somebody on HN?
>I have no idea how you came to that conclusion.
This entire discussion is about a commercial entity taking somebody else's work for profit use and not paying or even asking permission. Copyright infringement is not the same as theft, but you're the one who created a real world apple analogy, and by referencing the 500/100 money thing you're clearly cognizant of that aspect. For your analogy to have any connection it has to be somebody taking the apples for free, under the justification that "all apples are the same so if somebody is asking anything I'm justified in just taking it rather then acquiring one elsewhere at a price I feel is acceptable". How can you argue it both ways? Either all photographs are equivalent in which case there is no reason not to choose one that is free, or there was something better about that one in particular which is why it specifically was highlighted amongst all the others.
It does, it means it was the one they considered the highest value of what was on hand and sufficient value vs the price and whatever other internal criteria they held. That is literally the foundation of our entire modern economy.
>If you had magical foresight and removed their most preferred one before they began their search they'd just pick a different one and be none the wiser.
Yes, if you took their first pick (or if someone else had come first and chosen it) they'd be left with a reduced pool, which would then be evaluated independently, and they'd choose the "second best" pick, aka, the new first pick. And if the pool was reduced even farther, they'd be forced into further reduced choice, which might still lead to new choices unless all the remaining ones fell below their floor level criteria (perhaps the final apples nobody else would pick were all shriveled and bruised looking), in which case they might choose nothing. Or maybe they desperately want an apple even if normally they wouldn't, and settle but are angry and do not patronize that store in the future. Or maybe they're desperate but willing to travel and just leave and go to a different store. And on and on.
This is weird. Why am I having to explain such fundamental basic decision processes to somebody on HN?
>I have no idea how you came to that conclusion.
This entire discussion is about a commercial entity taking somebody else's work for profit use and not paying or even asking permission. Copyright infringement is not the same as theft, but you're the one who created a real world apple analogy, and by referencing the 500/100 money thing you're clearly cognizant of that aspect. For your analogy to have any connection it has to be somebody taking the apples for free, under the justification that "all apples are the same so if somebody is asking anything I'm justified in just taking it rather then acquiring one elsewhere at a price I feel is acceptable". How can you argue it both ways? Either all photographs are equivalent in which case there is no reason not to choose one that is free, or there was something better about that one in particular which is why it specifically was highlighted amongst all the others.
>This is weird. Why am I having to explain such fundamental basic decision processes to somebody on HN?
I don't know, but you clearly explained my (and others) point and then go on some bizarre tangent about the foundation of our modern economy.
To wit:
>Yes, if you took their first pick (or if someone else had come first and chosen it) they'd be left with a reduced pool, which would then be evaluated independently, and they'd choose the "second best" pick, aka, the new first pick
Exactly. And with photographers, like with apples, you have to go through a lot of apples before it matters. Which is why when you say things like this:
>Yet in actual fact they (and more to the point a clothing sponsor engaging in commercial advertising use) did not do that, they chose his. However many hundreds/thousands of people with cellphones and other cameras, however many hundreds of thousands of random people in the country they could have just given a camera and had a specific official hired "photographer" to take photos that they'd own the copyright to, and yet they didn't and just took someone else's without asking instead.
You're wrong. There's nothing special about this guy or the photograph he took.
>Either all photographs are equivalent in which case there is no reason not to choose one that is free, or there was something better about that one in particular which is why it specifically was highlighted amongst all the others.
They chose it before they knew it wasn't free. Five posts into the thread and that never occurred to you?
I don't know, but you clearly explained my (and others) point and then go on some bizarre tangent about the foundation of our modern economy.
To wit:
>Yes, if you took their first pick (or if someone else had come first and chosen it) they'd be left with a reduced pool, which would then be evaluated independently, and they'd choose the "second best" pick, aka, the new first pick
Exactly. And with photographers, like with apples, you have to go through a lot of apples before it matters. Which is why when you say things like this:
>Yet in actual fact they (and more to the point a clothing sponsor engaging in commercial advertising use) did not do that, they chose his. However many hundreds/thousands of people with cellphones and other cameras, however many hundreds of thousands of random people in the country they could have just given a camera and had a specific official hired "photographer" to take photos that they'd own the copyright to, and yet they didn't and just took someone else's without asking instead.
You're wrong. There's nothing special about this guy or the photograph he took.
>Either all photographs are equivalent in which case there is no reason not to choose one that is free, or there was something better about that one in particular which is why it specifically was highlighted amongst all the others.
They chose it before they knew it wasn't free. Five posts into the thread and that never occurred to you?
Looking at this strategically it seems that the photographer simply didn't expect the band and the sponsor to be so close. He desparately tries to separate them into two entities (artist and commercial) when in reality they're essentially two facets of the same brand.
It does seem that the band massively overreacted though.
I don't think this will play in their favour now that this has been posted so widely. Apparently the photographer wants the last word on this.
It does seem that the band massively overreacted though.
I don't think this will play in their favour now that this has been posted so widely. Apparently the photographer wants the last word on this.
Just because two businesses are close doesn't mean licenses are transferable. If the photographer gave his permission to use the picture for self-promotion (or even simply decided not to complain about it), that doesn't give them the right to grant that permission to a clothing store they're very buddy-buddy with.
Sure legality wise, that might be the case but nothing is ever black and white. Like in this case, no wonder the photographer received adverse reaction from the band.
It's litterally black and white in intellectual property laws.
Not really, different judge may interpret the law differently.
You're literally just saying things, and saying them doesn't make this true.
Copyright law on this sort of thing is incredibly straightforward and completely settled. This isn't like recreating the likeness of someone, including their tattoos (another story popular in the past day on HN), this is clear cut commercial usage of someone else's copyrighted work, and his tolerance of non-commercial usage by the person photographed doesn't have any impact whatsoever on whether or not a different entity has the ability to use it to promote their clothing line.
This is an incredibly open and shut case with tens of thousands (probably hundreds of thousands, actually) of cases worth of clear cut precedent.
Copyright law on this sort of thing is incredibly straightforward and completely settled. This isn't like recreating the likeness of someone, including their tattoos (another story popular in the past day on HN), this is clear cut commercial usage of someone else's copyrighted work, and his tolerance of non-commercial usage by the person photographed doesn't have any impact whatsoever on whether or not a different entity has the ability to use it to promote their clothing line.
This is an incredibly open and shut case with tens of thousands (probably hundreds of thousands, actually) of cases worth of clear cut precedent.
You think so, but good lawyer can always make any seemingly straight forward case to be not so straight forward.
How come this one is on the front page when I submitted it more than 12 hours before it at https://news.ycombinator.com/item?id=18766327 ?
Edit: and when I complain about stolen karma I get more downvotes. What a weird place.
Edit: and when I complain about stolen karma I get more downvotes. What a weird place.
>when I complain about stolen karma I get more downvotes
Nobody gives a fuck about who gets Internet points. Sometimes things reposted and take off when they didn't the first time and there's not a lot you can do about it.
Nobody gives a fuck about who gets Internet points. Sometimes things reposted and take off when they didn't the first time and there's not a lot you can do about it.
Complaining about votes/not getting votes is boring and thus commonly downvoted (it's also explicitly against HN's rules).
There's some randomness to if a story makes it to the front page or not (how many/which people were paying attention to /new, how were other stories ranked in relation, ...), which is why limited reposts are explicitly allowed, you were unlucky this time.
There's some randomness to if a story makes it to the front page or not (how many/which people were paying attention to /new, how were other stories ranked in relation, ...), which is why limited reposts are explicitly allowed, you were unlucky this time.
No idea. HN behaves weird, I wasn't aware of a previous submission.
It seems rather odd that the photographer would expect to be able to benefit from the work of the band, taking photos of their on-stage performance (which is just as much an act of creation, if not more, as taking a picture), and use the image of that woman freely, including to demand payment of royalties to third-parties, while the subject of the picture should have no say at all in the matter.
The legal aspect is what it is (although it would be interesting to analyze exactly what the creative act of the photographer is here), and the reaction of the band was overly harsh, but the photo wouldn't exist without the band performance, so I feel like there should be some kind of shared right here.
The legal aspect is what it is (although it would be interesting to analyze exactly what the creative act of the photographer is here), and the reaction of the band was overly harsh, but the photo wouldn't exist without the band performance, so I feel like there should be some kind of shared right here.
The photographer didn't expect to benefit from the work of the band. He didn't expect to benefit from his own work of taking the picture, editing it and uploading it. He expected other people not to profit from his work, and when they tried to all he demanded was they donate to charity. At no point did he try and profiteer from this.
The fact is that subjects of pictures don't really have the right to refuse to be photographed in public, they only have the right to prevent their image to be used commercially- which is categorically no what this guy was doing.
The fact is that subjects of pictures don't really have the right to refuse to be photographed in public, they only have the right to prevent their image to be used commercially- which is categorically no what this guy was doing.
Intellectual rights at its finest:
I made this photo, I own it! - photographer
I'm on this photo, I own it! - band
She wears my product, I own it! - props maker
Photo was made with camera I made - camera maker
That patch of violet is a trademarked color - Milka
I made this photo, I own it! - photographer
I'm on this photo, I own it! - band
She wears my product, I own it! - props maker
Photo was made with camera I made - camera maker
That patch of violet is a trademarked color - Milka
Arch enemy itself in a way is also a businesses, so you let them use your photo for free but not their sponsor? Legality wise you might be right but not it's not surprising that you got backlashes from the band. In the
this case I support the band.
From my read, poor communication come contributed strongly to this mess.
The authors reply to band management was overly long winded when he just needed to stress that he didn’t want his work being used by random commercial uses, and that he offered them 100 to charity.
Instead of that he demanded money to charity from the band itself (!?) and put the strongest emphasis (to my read) seemed to be about his rights. This unnecessarily amplified the aggression, and triggered the band to exercise their rights with the banning.
Everyone within their rights, everyone loses.
The authors reply to band management was overly long winded when he just needed to stress that he didn’t want his work being used by random commercial uses, and that he offered them 100 to charity.
Instead of that he demanded money to charity from the band itself (!?) and put the strongest emphasis (to my read) seemed to be about his rights. This unnecessarily amplified the aggression, and triggered the band to exercise their rights with the banning.
Everyone within their rights, everyone loses.
Offering to "explain the current state of the law" to someone in a giant email seems like a really poor way to resolve conflict. The pseudo-lawyer language seems almost designed to infuriate.
Isn't pseudo though as he is also a lawyer. He may be far too used to writing like that.
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Yeah I don't get why he went the charity route at all. It's completely out of left field, and makes the situation in which there was clearly already a misunderstanding even more confusing. Is this a common means of payment for licensing creative works? (when not explicitly part of a charity auction or something)
I assume the author thinks that this makes him look unselfish, i.e. he is merely concerned about the principle of the matter and his artistic integrity rather than the money itself. But it actually comes across as overly self-righteous, and feels like he's just being difficult for no real reason since he doesn't even stand to gain anything from it.
I assume the author thinks that this makes him look unselfish, i.e. he is merely concerned about the principle of the matter and his artistic integrity rather than the money itself. But it actually comes across as overly self-righteous, and feels like he's just being difficult for no real reason since he doesn't even stand to gain anything from it.
He likely wanted to donate the photo to the sponsors. But he wanted to do it in a manner as to not lower the value of the photo, and also highlight that it was his IP. If he did not mention his 500 Euro price tag, the company would assume that next time it's only worth 100.
Unfortunately, it was worded to make it sound like, "I took a photo of you. Your can either pay me 500 Euros or pay someone else 100 Euros."
Unfortunately, it was worded to make it sound like, "I took a photo of you. Your can either pay me 500 Euros or pay someone else 100 Euros."
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Saying something like this:
> While, in general, I might allow fans or even the musicians [themselves] to use my work, this does not change the fact that I hold the right to authorize or deny the use.
to a band and not expecting to get banned from all future events is pretty amazing.
I am aware the law is (probably? Depends on, eg, free admission and contracts etc) on the photographer's side, if the photog wants to be a dick about the subject of the photo sharing it on instagram, there's lots of photographers in the world.
> While, in general, I might allow fans or even the musicians [themselves] to use my work, this does not change the fact that I hold the right to authorize or deny the use.
to a band and not expecting to get banned from all future events is pretty amazing.
I am aware the law is (probably? Depends on, eg, free admission and contracts etc) on the photographer's side, if the photog wants to be a dick about the subject of the photo sharing it on instagram, there's lots of photographers in the world.
Anarchist band got triggered by the IP lawyer talk. Photographer got triggered by the idea of "exposure". Both sides misunderstood the opposite side. They could have used different words.
The guy comes across as a nut and it's no surprise the band doesn't want to deal with him.
In my younger years I was very much a part of the "scene" and made a good go at booking and promoting metal bands, particularly European ones here in the US.
After a very short time I realized that it's very much a pit of vipers and an endless source of drama. Everyone puts on a front of being very cool but in almost all cases it's just that. It doesn't matter if it's bands, promoters, photographers, fans, etc., anyone who is even the slightest bit invested in it is likely to screw you over or air some irrelevant feud out in public. I don't go near any of it anymore (except the occasional Meshuggah or Ihsahn show) and remain a fan in private, with headphones on.
As right as the guy is, he totally didn't go about any of this the right way and neither did the band.
After a very short time I realized that it's very much a pit of vipers and an endless source of drama. Everyone puts on a front of being very cool but in almost all cases it's just that. It doesn't matter if it's bands, promoters, photographers, fans, etc., anyone who is even the slightest bit invested in it is likely to screw you over or air some irrelevant feud out in public. I don't go near any of it anymore (except the occasional Meshuggah or Ihsahn show) and remain a fan in private, with headphones on.
As right as the guy is, he totally didn't go about any of this the right way and neither did the band.
The photographer (and the rest of us) would have been better served with a simple straightforward take down notice: "a photograph which I own is being used or commercial purposes."
The clothing brand would have probably contacted the artist, assuming that the band or singer had owned the rights since it went out on the singer's instagram. Upon learning they didn't they would have taken it down or bought the rights.
But know we all now what an insufferable prig the photographer is and how unpleasant all parties involved are. If you're gonna be a lawyer, be a lawyer not a morally preening victim.
The clothing brand would have probably contacted the artist, assuming that the band or singer had owned the rights since it went out on the singer's instagram. Upon learning they didn't they would have taken it down or bought the rights.
But know we all now what an insufferable prig the photographer is and how unpleasant all parties involved are. If you're gonna be a lawyer, be a lawyer not a morally preening victim.
The band is also within their rights to ban him from their shows because they disagree with the way he uses his legal authority.
Personally, I find the idea that the photographer has more right to a photo than the subject ethically repugnant.
If you came up, took a photo of me, and used it to make money on your Instagram, and then sent settlement letters to people associated with me for using it you'd be asking for a broken nose if I ever laid eyes on you again, legal right or not.