Photographers have been shocked by Lady Gaga’s latest publicity stunt. Last week Washington news site TBD told how, when their photographer arrived to shoot the fame monster in concert, he was presented with a photo release assigning the copyright in his work to Gaga. After a brief call to his editors, who instructed him not to sign, the photographer packed his bags and left.
No concert review in TBD for Gaga then: instead the site took her to task for the attempted copyright grab in a two page article describing the contract as “audacious”, “predatory” and “not cool”.
TBD undoubtedly had a good case, but La Gaga’s grab, horrible though it is, isn’t anything like as cutting edge as TBD make out. Bands, their agents and promoters have been foisting predatory contracts on photographers for quite some time. Here’s a list of just some acts who have presented such contracts in the recent past: Aaron Neville, Aerosmith, Avril Lavigne, Bad Company, Beastie Boys, Ben Harper & Relentless7, Cheap Trick, Coldplay, Foo Fighters, George Strait/Reba Mcentire/Lee Ann Womack, Gogol Bordello, Hellyeah, Jane’s Addiction, Jimmy Eat World, Janet Jackson, Jonas Brothers, Jonny Lang, Jordin Sparks, Katy Perry, KISS, Lady Gaga, Lenny Kravitz, Leonard Cohen, Linkin Park, Matchbox 20, Melissa Ethridge, MGMT, Mike Ness, Muse, My Chemical Romance, Papa Roach, Paula Abdul, Queens of the Stone Age, Robbie Williams, Steven Seagal, Stevie Wonder, Stone Temple Pilots, Taylor Swift, The Mars Volta, The Raconteurs, The White Stripes, Tom Jones, Tom Petty, Turbonegro. To see what these acts have tried on, just click a name to be taken to the relevant contract.
One might think it took days of research to round that lot up. In fact so widespread is the practice that it only took half a dozen e-mails and a quick sweep of the interweb to find those; you can bet the list isn’t comprehensive.
The Music Photographers Network has excellent edited highlights of the worst contracts, some of which are astonishingly ambitious in their claims. Highly restricted use of the photographs by the photographer is de rigueur, while the bands generally award themselves broad free use of the images; in effect a transfer of copyright. Many take the Gaga route of a full transfer of rights, leaving the photographer with nothing. A few even contain clauses for damages – up to $1M – against photographers who breach the terms of the contract.
And some seem to be drafted by people who think double secret probation is a legal term. In 2006 Robbie Williams earned media mockery and white space instead of concert reviews and pictures when he presented a contract containing the absurd legalese:
“We shall be entitled to assign transfer sub-license mortgage charge…”
Two years ago, while facing a lawsuit from guitarist Joe Satriani for plagiarism [irony alert!], Coldplay tossed this at photographers:
“You hereby transfer and assign to us with full title guarantee the entire copyright and all extensions and renewals throughout the world (including by way of present assignment of future rights) and all rights of a similar nature in the Photographs.”
But perhaps the best clause in any band photo release is this one:
“You agree keep their agreement confidential and not to reveal to any third party any personal information concerning this agreement, the Artist or us, that you may become aware of or may be informed of, during the course of your engagement under this agreement.”
That’s right, this is a music combo is so important, their contract so secret, that signatories cannot even acknowledge its existence to third parties: it’s the popster’s version of a super injunction.
The situation is so bad that some photographers have got together and drafted their own more even-handed release to present to bands. TBD suggest that copyright can get complicated because some publishers demand ownership of contributing photographers’ work, setting them on a collision course with the likes of her ladyship. But there’s nothing complicated about that, it’s simply the inevitable consequence of a world where everyone except the photographer thinks they own the photographer’s work: two sides arguing ownership of something that’s not theirs in the first place. It’s called greed.
UPDATE 09/03/2011: this article has been revised and corrected to remove the erroneous claim that TBD claim ownership of contributing freelance photographers’ work. Jay Westcott of TBD has clarified their contract requirements in comment 5 below.