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|| SportsShooter.com: Member Message Board
Bad concert contracts - and how to beat them
Kevin Leas, Photographer, Assistant
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Rochester | NY | USA | Posted: 9:40 AM on 07.03.09 |
->> At a recent show, I was presented with one of those dreaded contracts that begins with something along the lines of "so and so touring maintains copyright to all images". Luckily, I was in an immediate position to speak to one of the higher ups on the tour, who told me that they had actually just amended the contract to include that, and couldn't take it off. However, once the manager showed up, I was able to plead my case, explaining in a nutshell that without the copyright, I can never again be paid for my work there.
I'm now the proud owner of a crossed off and initialed copyright transfer clause. What a great feeling! Has anyone else managed to have these corrected? |
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John Riddell, Photographer
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| ON | Canada | Posted: 10:47 AM on 07.03.09 |
->> Good on ya Kevin!
.....but, and there's always a but!
The lawyers have a different opinion that if the person that crosses off the offending clause and initials it doesn't have the authority to do so, the action is a moot point and you've committed to the whole contract, black lines and everything under those black lines.
If the 'higher ups' having the ability to bind the promoter on a contract, great.
This is why most end up not signing it and walk away. Amending a contract with a black marker backstage doesn't make everything better. That's why most walk away from it.
I'm not a fan of lawyers poking their noses in on every little thing but they're there for a reason and contracts are one of them.
Plus, do most photographers showing up to a place being presented with a contract have the legal authority to bind your own employer to it by signing? Lots of implications if they want to enforce it.
Something to keep in mind.
They appeased you by crossing stuff out just like some people appease the promoter by signing the contract with Mickey Mouse's name. |
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David Harpe, Photographer
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Louisville | KY | USA | Posted: 10:50 AM on 07.03.09 |
| ->> Pen with vanishing ink. Works every time. :-) |
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Jeff Mills, Photographer, Photo Editor
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Columbus | OH | USA | Posted: 1:02 PM on 07.03.09 |
->> How many staffers really have the authority to walk away ? Do your editors support your decision when you come back with no photos an hour before deadline ?
And for freelancers, do you continue to get repeat work from publications when you inform your client there will be no images and they have to find something else to fill that 2 page spread with ?
I really can't see walking away as hurting anyone but yourself because the promoters and artist certainly dont have any shortage of people who apply for credentials at each and every show, a large majority of which would gladly give away everything they take in exchange for a credential, and would in fact be happy about "getting to have my images used" by a band. I just dont see what type of lesson the so called "walking away" is going to teach artist management.
Also in reality, has anyone ever really had an artist come back and demand images after the fact ? I've never once had that happen nor heard of it happening to anyone I know.
I have however had artist and labels purchase images from I've shot after a show, and also say they have a 3rd party client looking for images, such as a magazine, and allow me to sell the images to that party. Never has it been an issue with 2 big guys pounding on my door from the record company saying they want my pictures, I signed a contract and I better hand them over. I've always been well compensated everytime. |
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Debra L Rothenberg, Photographer
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New York | NY | USA | Posted: 1:24 PM on 07.03.09 |
->> The NY area daily newspapers, which also includes some NJ papers, have all banded together to never sign these contracts. It's a wonderful thing when newspapers, and photographers unite together to change things.
Most concerts take place in or near big cities-perhaps if all you staffers and freelancers approached your papers and asked to start something like this the same thing would happen in your area.
Photographers in Florida once stood together at a Britney Spears concert and said they were all going to walk away if they had to sign-and PR said ok to not having to sign. The same thing happened here in NYC a few years ago at a Black Eyed Peas concert. After the promoter put us all in the back of the theater and we weren't allowed to stand on ladders, not one of us got a shot. After explaining in a calm manner that we will never shoot at their venue again and there would be no local photos, therefore never giving them publicity, they asked us "what do you want." There were about 10 of us who said we wanted one song down front and then we will leave. They gave us what we wanted. I have to say there have only been a handful of times I have actually seen photographers WORK TOGETHER to change something and when it happens, it is a beautiful thing. |
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Kevin Leas, Photographer, Assistant
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Rochester | NY | USA | Posted: 3:02 PM on 07.03.09 |
->> Sadly, I was the only one (out of seven, I think) who even argued the point on the contract at this show.
John - the person who signed off on the change was the manager - if he doesn't have the power to change that, who does? And David, I know your post was tongue in cheek, but I do have a photocopy of the signed, amended contract. Just saying that as a reminder to anyone else in this situation - get a copy of anything you sign.
The local daily sent a shooter to cover this show, and the contract was signed as is. The larger daily nearby, on the other hand, didn't even send someone out - but if they had, they would have been under editors' instructions to walk. |
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Phil Hawkins, Photographer
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Fresno | ca | usa | Posted: 3:53 PM on 07.03.09 |
->> It has been my understanding that you, as the photographer, can scratch off a clause, initial AND date it and if the promoter signs it, it's done as long as the date of my change is dated prior to the date of signing for the signature page. The promoter doesn't have to initial anything. Contracts are negotiated. If you as a photographer (or either party for that matter) see something you don't agree to, cross it off, date and initial it, then it's reverse "caveat-emptor" on the promoter. That exclusion is binding.
I was once on volunteer ski patrol and at season's start they gave everyone contracts that included a provision that in no circumstance are they liable in case of injury. I crossed the section out, initialed and dated it, and gave it to them and got a signed copy back WITH my changes intact. About 6 weeks later they came to me, white as a sheet, and wanted me to sign a new one. I refused, and they said "We have no assignments for you" and that was my last year on ski patrol. So... I never forgot that little lesson.
All contracts are negotiable. |
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Kevin Leas, Photographer, Assistant
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Rochester | NY | USA | Posted: 4:37 PM on 07.03.09 |
| ->> Phil - the contract had lines for two signatures: photographer and artist representative. Had I just scratched, initialed, and dated it myself, I highly doubt management would have signed it. I did think about trying it, but I'm guessing it would've just prolonged things. I figure it's better to explain myself first, instead of sending back this modified contract and having to defend my actions later. |
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Phil Hawkins, Photographer
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Fresno | ca | usa | Posted: 3:15 AM on 07.04.09 |
| ->> It all depends on the situation, I agree, and especially if it's a one-page contract in which it will be seen immediately, but I believe that if you simply change what you don't like with the conviction not to back down if they challenge you on it, then you have lost nothing. Asking then up front to change it gives them the ability to say "No", whereas if you just make the change, you are doing the exact same thing; letting them know you cannot accept something, and you changed it, yet putting them in the position to "undo" your change. Big difference. And avoids an argument. They don't like it, the monkey is on their back 100% to deal with it, not your's. |
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Peter Wine, Photographer, Photo Editor
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Dayton | OH | USA | Posted: 7:23 AM on 07.04.09 |
->> First, I'm a freelance, not staff photographer. I work most often with the Dayton Daily News (in Ohio.)
I've only been presented with such a document once, and because it included a clause about them maintaining all rights, I contacted the Director of Photography, and he said if it was a staff person they would not sign without crossing out and initialing of the clause, so I was fully backed up by the paper if I needed to come back without photos.
I spoke with the tour manager and it was agreed that the clause would be crossed out.
In the years I've been shooting concerts, I've seen the atmosphere become more hostile and restrictive toward the media, and I think the Internet may be a part of that.
Given that the 'official' photographer, and hundreds (or thousands) of fans will be posting photos from these shows, having them show up in the newspaper or newspaper web site isn't as big a deal anymore.
And given that those first three songs that we are allowed to shoot usually have the worst lighting, what we shoot doesn't make the artist look all that good anyway, and in my case, doesn't do all that much for my portfolio.
I've gone from shooting a concert at ISO 400-800 and 1/250 or higher, to shooting a concert, with a national act and major venue, at ISO 1600 and 1/60 to overcome either limited lighting or backlighting.
How are the resulting photos supposed to make either one of us look good?
Then, as the fourth song starts, and I am winding my way through the crowd to go file the photos, up come the lights, and wow what a photo it might have been.
It's no wonder that the music business is in a slump. They keep doing things that make them look bad, or inhibit sales. |
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Samuel Lewis, Photographer
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Miami | FL | USA | Posted: 8:08 AM on 07.04.09 |
->> Phil,
While you are correct that all (or at least most) contracts can be negotiated, you need to take care to ensure that you are negotiating with someone who has the power to negotiate. If the contract is between the photographer and the production company, the concert promoter may not even have apparent, much less actual, authority, and thus, no ability to accept the changes you make.
Kevin,
Eliminating the referenced language from the contract may have no impact on the overall contract, much less the rights that the production company has. If the production company owns the copyright to the show, eliminating language to that effect in the agreement makes no difference; in other words, you don't have to recognize that they have rights, but as a matter of law, they have rights.
There is a case pending before the U.S. Court of Appeals for the Seventh Circuit that will determine a similar issue to what you're facing, namely, whether a photographer has the right to own a derivative work (photographs) of a copyrighted work (such as a concert). Depending upon how the court rules, concert promoters and production companies may not need to include any language in their contracts and nonetheless retain full ownership and control over both the concert performance and all photographs of the concert. |
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Phil Hawkins, Photographer
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Fresno | ca | usa | Posted: 12:25 PM on 07.04.09 |
->> Hi Samuel, all the more reason just to change it and move on. Whoever signs the signature page is assumed to have power to engage the contract. That's the point. By just making the change and then signing the signature page, you have achieved your goal. Then, as I mentioned, the monkey is on whoever IS able to negotiate that contract. You don't have to worry about it or engage in a negotiation, until you are challenged. Trust me; if you make a change in a contract and the opposite party doesn't like your change, the person slated with the power to enter into that contract will appear.
The issue of who owns a derivative work from a copyrighted performance is interesting. Keep us informed! |
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Fredrik Naumann, Photographer
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Oslo | Oslo | Norway | Posted: 6:32 AM on 07.05.09 |
->> I may have mentioned the practice of boycott before, but the issue came up again here in Norway just now, with one of the bigger music festivals. Several bands not only had restrictions on photography, some even banned photography altogether. The newspapers anser: to NOT report on those concerts/bands at all, other than to say they were boycotted over their photo policy.
At this particualr event the bands apparently didn't change their attitude, but in the past the threat of boycott has made artists like Gwen Stefani change their policy while in Norway. The decsicion to boycott a concert is of course made easier by the fact that it is a policy adopted/approved by the editors of the major newspapers. |
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JC Ridley, Photographer
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Coral Springs | FL | US | Posted: 11:17 AM on 07.05.09 |
->> "There is a case pending before the U.S. Court of Appeals for the Seventh Circuit that will determine a similar issue to what you're facing, namely, whether a photographer has the right to own a derivative work (photographs) of a copyrighted work (such as a concert."
Sam - What is the title of the case and how did the previous court rule? |
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Darren Whitley, Photographer
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Maryville | MO | USA | Posted: 1:35 PM on 07.05.09 |
| ->> I'll repeat myself, get an attorney, don't come here for legal advice. |
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Samuel Lewis, Photographer
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Miami | FL | USA | Posted: 4:00 PM on 07.05.09 |
->> The case is Schrock v. Learning Curve Intern., Inc., 531 F.Supp.2d 990 (N.D. Ill. 2008). Daniel Schrock, a photographer, was hired to photograph products (mostly toys) manufactured or distributed by the defendants (to help put this into context, one set of defendants owns the rights to the "Thomas" the train children's toys). Under the arrangement, the defendants were permitted to use Schrock's photographs (presumably on product packaging and in advertising) for a period of two years. When Schrock later discovered that the defendants continued to use his photographs, he registered the copyright for his images and brought suit.
The trial court found that the photographs were derivative works of the products, which were themselves copyrighted works. The court then held that while the defendants had consented to Schrock's creation of derivative works, they did not consent to the Schrock registering the copyright in the derivative works. As a result, the trial court granted summary judgment in favor of the defendants.
Schrock has now appealed to the U.S. Court of Appeals for the Seventh Circuit (case no. 08-1296). The appeal is fully briefed and oral argument was heard on September 9, 2008. If you're interested, you can listen to the oral argument at:
http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=08-1296_01... |
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Daniel Malmberg, Photographer
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Huskvarna | Sweden | Sweden | Posted: 3:34 PM on 07.09.09 |
->> I just found that four of Sweden's biggest newspapers are boycotting to photograph Britney Spears concert in Stockholm because of the contracts.
Source (in Swedish):
http://www.svd.se/kulturnoje/nyheter/artikel_3184507.svd |
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Rodrigo Pena, Photographer
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Beaumont | CA | USA | Posted: 3:59 PM on 07.09.09 |
->> When I covered the Coachella Valley Music and Arts Festival, a few months ago, I did not sign the contracts that had similar wording. I asked to speak to the manager, but was told she was not available. I promised not to photograph the artists that had those awful contracts. Luckily there were only a few artists that had those contracts. I kept my promise and those artists did not get coverage in our newspaper.
Another item that upset our newspaper in addition to the copyright was the verbage that gave the artist the right to edit the take before publication. We decided to skip those artists. |
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Jeff Martin, Photographer
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wellington | OH | usa | Posted: 7:42 PM on 07.09.09 |
->> " When I covered the Coachella Valley Music and Arts Festival"......
Shouldn't that read.....When I covered the Coachella Valley and the Music and Arts Festival there in..."
If you're not at least 50 and a Bugs bunny fan, you won't get it. |
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