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Ownership of copyright in concert photography

oscar garcia suarez , Feb 09, 2001; 05:11 a.m.

Working as a concert photographer in Barcelona, Spain, I am forced often and often to sign a kind of contract before the concert - logically, if I don't sign it, I have no photos-. In this contract, I renounce to have any kind of copyright over my work. I cannot use it in any way other than publish the photos once in the magazine who wanted the photos in the first place. I think this is very common in the United States. Am I right? There is any legal possibility to avoid the terms of this contracts? What are your experiences about? Thank you very much for your comments.

Responses


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Karine Poivey , Feb 09, 2001; 11:11 a.m.

I can't help you but the website http://www.musicjournalist.com has a mailing list for music photographers where people often discuss this type of issues.

John Hicks -- , Feb 09, 2001; 01:42 p.m.

The performers' act is covered by copyright; what you're contracting for is usage of a derivation (your photos) of their act.

This is really common. Non-contracted photography is usually forbidden. Although I get the point of the performers protecting and controlling photos of their act, what it boils down to is ridiculous, outrageous greed.

I suspect the performers would overall be more profitable if they'd just let fans shoot as many photos as they want and accept that a few of them are going to be selling prints; it wouldn't leave those who just wanted a few snaps for themselves disappointed.

Chris Gillis , Feb 09, 2001; 03:27 p.m.

This sounds like a very unfair contract to the photogrpher. You should offer usage rights for your work at a fair price and for a specific time period, as well as specific media, as well as ... you get the idea (get it all written down in other words). You should never give up any right to the future use of your images without big bucks.

There are a host of resources to learn more about this. One is the archive in the Q&A here. Another is the ASMP Guide to Professional Proactices, an essential book. ALthough it covers North America for the most part, the content is still applicable to your situation because you need to understand what a fair deal constitutues within the profession. Lastly, check out Editorial Photographers for contract reviews and more. This is a crucial resource for understanding contract and a host of other imporant issues that professionals face.

Joe Oliva , Feb 09, 2001; 05:10 p.m.

Don't you think performers have a right to control who makes a buck off their work? What would you like to do with these concert photographs? Give them away to the homeless because they can't afford the price of a ticket? Of course not. You want to SELL them. You want to make a PROFIT off them, that is profit off something you have no legitimate right to in the first place.

What if someone saw one of your beautiful prints on display, and was taken by your artistic talent and vision. They had a great idea, what If I just take a picture of your work, have it reproduced at the corner photo lab, and sold it! Of course that person would have no right to do that, just as you have no right to do that with a concert performer.

It is unfortunate that most concerts these days ban cameras and recording equipment, but that is largely due to illegal bootlegging activies by "greedy" elements of the audience.

All the Best,

Efrain Sain , Feb 09, 2001; 07:05 p.m.

In response to John Hicks answer, the copyright law defines a "derivative work" as one that "is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted." A photograph of an ongoing concert is not a derivative work. I do not mean to be picky but as an attorney who practices some intellectual property, I wanted to correct the assertion by John.

Steve Mirachi puts forth an excellent argument at the bottom of the following web page: http://www.photo.net/photo/canon/mirarchi/concert/concer_1.htm

John Hicks -- , Feb 10, 2001; 02:39 a.m.

> Don't you think performers have a right to control who makes a buck off their work?

Of course they do. Is it good PR and does it help create or maintain a following? No.

> What would you like to do with these concert photographs?

Exactly what I have done with them. A couple up on walls, most in boxes.

> You want to SELL them.

You assume wrong.

> What if someone saw one of your beautiful prints on display, and was taken by your artistic talent and vision. They had a great idea, what If I just take a picture of your work, have it reproduced at the corner photo lab, and sold it!

If I wanted to pursue the matter I'd find an attorney and assert my rights in court, exactly as the law spells out.

> It is unfortunate that most concerts these days ban cameras and recording equipment, but that is largely due to illegal bootlegging activies by "greedy" elements of the audience.

I don't argue that those things don't occur, and I'm not arguing that the performers don't have rights to their work. My point is that the go rather overboard on it and rather than going after bootleggers in court they try to set up the "camera police" etc; it'd really be rather easy to make a bootleg recording or photos with a little effort. The venue security people aren't doing strip searches yet.

John Hicks -- , Feb 10, 2001; 02:41 a.m.

> the copyright law defines a "derivative work"

OK, I stand corrected. What would a still photo of a performance be?

Karim Ghantous , Feb 10, 2001; 08:18 a.m.

I guess a point that is obvious is being missed, here. Although nobody has copyright over their face, they have a right to disallow you to take photos if the event is a private one.

If Michael Jackson started breakdancing in the street and you took photos, all that you can't actually do with them without his permission is use them for advertising - as far as the law today goes.

What would be interesting is to find out whether you can take pictures of private concerts from outside the arena (say, through a hole in the fence) and sell them as you would normal street photography.

Cliff LeSergent , Feb 10, 2001; 09:57 a.m.

I've been involved in a similar issue with a band who wanted to use some of my photos for the cover of their CD. They insisted that I sign over the copyright to the photos, without compensation, which I refused to do. They threatened to take legal action claiming I had no right to take their photos in the first place. I called their bluff, but now I have a large collection of worthless photos.

I find it very ironic that the musicians and record companies, who lobby governments to enact tougher laws to fight piracy and copyright infringment, are guilty of abusing these same laws.

The photographer retains the copyright of the photos he takes, unless he signs them over, as in the contract you refer to being asked to sign prior to the concert. What the concert performer owns is the trademark of his image or likeness. What this means is, you can sell your photos for editorial usage, or possibly as "fine art" images, but not for advertising or similar commercial uses.

I think US and Canadian laws are quite similar in this regard, but I believe some European countries have privacy laws that could prevent you from photographing people without their permission. Since working as a concert photographer seems to be important to you, I would recommend spending a few minutes with a lawyer to get a reliable professional opinion.


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