First Three No Flash, Oh yeah and give us all your pictures for free…
By Misery Xchord

I originally published this on my old blog back in September of 2008 via Richard Sharman of  Black Shadow Photography, who was forwarded this article by Pete Jenkins, the Vice-Chair of the NUJ Photographers Sub Committee, regarding predatory “photographers agreements.”

Unfortunately “that site” purged my blog and all associated files before I could back them up, so I’m having to reconstruct the supporting documents listed in the footnotes. If you have a copy of the pdf for this article that was distributed, or links to any of the supporting material, I’d be grateful if you could drop me a link so I can add them.

Introduction

The National Union of Journalists has been receiving complaints from some of its Music Photographer members for a umber of years about unfair, and unworkable ‘Photographers Agreements and contracts’ given to photographers as they pick up their accreditation just before photographing live bands[i].

Some of the demands of these so-called ‘agreements’ are totally unreasonable and most are unworkable, yet photographers are put in a ‘sign’ or no access position. No access to legal advice, no access even to editorial advice in many cases, and of course staff rarely have the authority to for instance sign away copyright, demanded in some of the more outrageous documents proffered[ii].

The initial reaction of the NUJ was to take up the matter with its sister union the Musicians Union, and Phil Sutcliffe (MOJO/Q music Writer) penned a piece for their Journal[iii] edited by Keith Ames. Although John Toner (NUJ Freelance Organiser), and Phil had a good meeting with Keith Ames little has happened on their side, and there has been next to no feedback.

That was a year ago.

 

The current situation

Over the past few months, jerked into action again by the Lenny Kravitz contract received by a number of Music Photographers, Pete Jenkins of the NUJ Photographers Sub Committee has met with George Chin (http://www.georgechin.com/), David Redfern (http://www.redferns.com/), and with the help of Phil Sutcliffe and John Toner been working on a way to turn this contract situation around.

Initial communications have been made with a number of Music Photogrpahers, the majority of whom are NUJ members to see what can be done. Approaches have also been made to people in the Music industry to try and come at the problem from a central viewpoint that will end up with a solution that will give Music management (one thing that is clear is that it is not musicians issuing contracts – it’s the management and PR companies) the assurances they require, yet at the same time preserve the editorial integrity of Photographers.

After some months, a new initiative was launched with the piece in the British Journal of Photography. This has gone down mostly very well. Communications have been received from Australia and the US – all supportive and many photographers in the UK have checked in as well.The only (adverse) criticism made publicly was in a blog having a go because the consequences of the Kravitz contract were not analyses fully enough for the writer.

 

The Problems

Before a solution to the situation is going to be forthcoming it is important to understand how each side of this sees the problem. Photographers do not want bands or their managements exercising any kind of control or restriction on their work, and signing away copyright, giving unfettered access, allowing editorial control and giving away free use are all unacceptable demands that no creator would accept whether they be photographer, writer, painter or even musician!

Professional photographers attend gigs primarily to cover that concert and fulfil commissions to magazines, newspapers and other journals, but not exclusively. Many photographers (most) are also shooting stock material that will be held on file by agencies such as Retna, Redferns, REX, Capital, UPPA, Getty, PA, Live and many others. These stock images are largely used in magazines, newspapers and books to illustrate text, features and articles about music etc..

Another major issue and one totally misunderstood by both the music industry and the public at large is the relatively low remuneration that ‘live music’ photographers obtain for editorial and stock work. Many people, including music managers have the erroneous assumption that editorial music work is well paid. It isn’t. Most national Newspaper shifts are around the £150 mark, regional newspapers often half this. Stock reproductions often start from £50-£65, and when deals are done, stock rates can plummet for individual images. There is no goose laying golden eggs here for music management to get hold of.

Professional musicians and their management have their own difficulties. The business of music has changed rapidly since the time of the Long-playing record. Recordable cassette tapes, followed by Recordable CD-ROMs, and now most recently downloads from the World Wide Web, as well as iTunes, MP3 players etc have totally changed the music industry.

The large returns (commission payments) that successful bands obtained when records were pressed, are basically a thing of the past. There are commissions on music downloads, but the Music industry would have us believe that these are not high. Bands get good money for their concerts – reflected in the high cost of concert tickets today compared to the past. There was a time when a long playing record and a concert ticket were roughly the same price, as we know, there is now a large disparity between the two, concert tickets costing several times more than a CD-ROM.

The one area of ‘money-making’, which has always remained within control of the band, the same to today as it was say thirty years ago is ‘merchandising’. Band management teams have often accused photographers of selling photographs to pirate merchandisers, (without any proof in most cases it must be said), and the issue of merchandising, t-shirts, clothing, mugs (and mouse mats for that matter) remain something about which almost all bands feel very strongly about. It is almost certainly merchandising, which initiated the idea of photo contracts.

Photographers in turn might point out to bands and the managements and PR companys that legitimate ‘professional photographers’ have rarely been the source of ‘pirate merchandising’ pictures, indeed pirates are not going to want to pay commercial rates are they? The biggest source of ‘pirate imagery’ has never been the professional Music Photographer, but the opportunist or ‘pirate’ in the crowd. It is next to impossible to stop concertgoers bringing in cameras of one sort or another, from professional kit to mobile phone cameras, and bring in cameras they do. Like may concert photographers I have many pictures taken of audiences, careful examination of which reveals cameras of all shapes and sizes being welded by the ticket buying public.

It does not matter what they get the legitimate professionals to sign, it will not affect pirate merchandising at all, as it isn’t the legit professionals who (by and large) source the imagery.

Another matter here that perhaps should be brought to the attention of Band Management, PRs and so on is the number of non-professionals who gain access to concerts of all sorts. By non-professional I am not referring to professionals who only gain part of their income through band work, or to the ‘weekend warrior’ the part-time professional with a full-time job. The non-professional I refer to would be the photographer that we all see on occasion at concerts, someone without the appropriate equipment, someone who is clearly a fan, not a professional Photographer. At the ‘Download Festival’ at Donnington last year, of the perhaps 70+ ‘accredited photographers’ attending, only a third were clearly full-time professional working photographers, perhaps another third were part-time professionals, and the remainder were clearly not working, not professional, and totally ill-equipped for the job, and no way even remotely professional photographic workers.

 

What to do?

When tackling this problem we have to understand that there is no actual contractual arrangement between Photographers and artists and their management teams. We can say and do what we like, but there is no obligation for any music manager to pay any attention to us (photographers).

However, it is the artists, their managers and the PR companies who issue these contracts, so to make them go away, or at least to make them something reasonable it will require us to give them something, and to show that actually it is not concert photographers who are the enemy.

Several suggestions have been made which could have an impact on how artists, their management teams and photographers interact.

  1. Produce a workable contract that could be made an industry standard. It would have to satisfy the needs of the artist, without compromising the work, copyright and editorial integrity of the photographer.
  2. Produce a set of Guidelines that can be used to assist artists and their management in understanding what is and what is not acceptable with regard to photographers, and at the same time ensuring that photographers understand the requirements of the artist. It is pointless having guidelines that merely tell one side or the other what they cannot do. Successful Guidelines of this type are those being used by the Staffordshire, Nottinghamshire and Metropolitan Police forces negotiated by the various recognised photographer representatives and the Police themselves.
  3. More controversially a licensing system could be established. The Premier League has such a system. The advantage is that any photographer wanting to photograph Premier League or Football League matches once accepted or awarded a license merely has to contact the home club of a fixture to acquire accreditation. The difficulty with this system is that any photographer wishing to photograph a match or being commissioned to photograph a match cannot do so if they don’t already have a license, unless they can get accreditation from a publication – not always possible. The current scheme is administered in such a way that any photographer who has not had a number of football images published during the previous season cannot obtain a license for the next one. But without a license one cannot gain access to the grounds to take pictures. Images taken whilst using the license of an agency or newspaper controversially do not count towards ones tally of published images. I would strongly recommend that a licensing system not be pursued at this time, most especially as there is no body that could sensibly adjudicate it, and the problems it will cause will far outweigh any advantages that such a scheme might seem to give at a first glance.
  4. A Professional Music Photographers Association. Many branches of professional photography have professional associations, press photographers have the BPPA (http://www.thebppa.com), garden photographers have the GPA (http://www.gpauk.org/). There are probably many others, including the Professional Sports Photographers Association, which regrettably no longer exists.The benefits of such a professional group could be great. Providing an umbrella body of concert photographers and a contact point for those in the music industry.Such an organisation would require funding, would need at least one part-time employee, and should not operate as an exclusive ‘club’

No initiative will work without the support of the photographers involved so it is important to obtain feedback so that wherever the effort is directed it is done with the support of the industry.

Photographers Agreement [iv]

A draft Photographer and Artist Agreement is attached

Whilst it is clear as photographers that we don’t need photographers agreements as such – we know our job and what we need to do, if the musicians, or more to the point their managers feel they need to protect themselves and their brand, we must understand their situation. Rather than let ourselves be bombarded with more and more outrageous and ludicrous documents far better that we suggest a document that we can live with that will at the same time give the bands the reassurance their managers require.

Any such document must be produced BEFORE the photographers appears at the venue, and with enough time that it can be legally examined (if required)

Two copies of such documents must be available each signed by both parties and one for each party to take away.

Full details including address, e-mail and telephone must be present for each party.

The Photographer agrees that the images obtained of the artists performance at the above venue and date, are for editorial purposes only.

This is the basic reassurance that the performer requires. The photographer is there in an editorial capacity

The photographer will not release images for commercial use (of any kind) without reference to the artist (or designated artist representative(s)) and agreement from the artist (or designated artist representative(s)).

The artist has a brand to protect, and promote. By agreeing not to release images for commercial use photographers are acknowledging that the artist’s brand is important, and that we as creators ourselves respect that brand. At the same time if the artist wants to use our images for commercial purposes then that is a good thing to be encouraged and appropriate licences should be negotiated and paid for. Third party approaches for use of images in a commercial context, say to support the promotion of a third party brand should be referred to the artist so that they can negotiate any appropriate fee.

Photographs may be taken during: (which songs)………………………………………….

Flash May/May Not (delete as appropriate) be used.

It would be good to encourage some freethinking in the way we take our photographs. ’1st three no flash’, does not have to be the industry standard, and by including this we encourage some freethinking. Most photographers understand that the first three songs are rarely the best ones from an image point of view, and flash whilst not always desired is on occasion considered by some a necessity.

The artist may request to see the images obtained by the photographer, and the photographer will on request (and payment of an appropriate fee to cover costs incurred) make available to the artist contact sheets or low resolution watermarked digital proofs or a watermarked web gallery as required. There is no obligation to the artist or the photographer by this supply of proofs/contact sheets/web gallery.

This paragraph is included as frequently ‘photographer agreements demand access to images (usually free of charge and accompanied by free use and even a free license). It is reasonable for an artist to want to see the professional work we produce, but not to exercise editorial control or take free possession of it. Equally it is only reasonable for the photographer to charge an appropriate fee to cover any work involved. There is a positive side to encouraging access to proof imagery in that the artist may then have the opportunity to purchase a license to use images from the Photographers.

The questions now are:

Is this an acceptable document for us as photographers to promote?

Does it require major or minor changes?

Are there omissions?

 

Guidelines for Photographers and Videographers Covering Live Music and other Events[v]

The first part of a proposed two part document that could be widely distributed and promoted to both the Music Industry and the Photogrpahers that service that industry.

This first part is a guideline for us as photographers and is designed to show (the Music industry) that we understand our responsibilities whilst we are attending live events.

 

Guidelines for Artists and Artists’ Representatives dealing with Photographers and Videographers at live events.

The second part of the two-part document that could be made available to the music industry.

This second part is aimed straight between the eyes of artists, managements and their Public Relations representatives.

The first seven points are designed to emphasise how we should be treated and to protect us from unwarranted editorial or other interference.

The eighth point, might be difficult for some, but should be acceptable in all cases (ask not demand or insist). The one thing that artists’ management want to ensure is that we do not deliberately interfere with their control of merchandising. We must also make it clear to artists, artists management and PR companies that we are merely the photographers, whilst we will not knowingly sell our work to pirate merchandisers, we have little control over it if our work is in turn ‘stolen’ to produce pirate merchandise. Indeed, it would be in our own interests to work with the music industry to protect our own copyright was well as artists own brands.

As mentioned before, this document is aimed at bringing artists and photographers into the same camp and stop artists seeing us (photographers) as the enemy. It is to both our advantages to work together. The more and the better editorial work we produce the better the promotion we provide the bands

Is this an acceptable document?

Does it need any revisions?

Are there any omissions?

 

Professional Music Photographers Association

It has also been suggested that there be a new Professional association for Music Photographers be established – The Professional Music Photographers Association. This would give the Music Industry a point of contact, and should assist in slowing the rot in that particular area of our industry.

Is there a need for a professional association dealing specifically with Music photographers?That really depends on the photographers themselves.

A professional association could show the music industry that photographers take themselves seriously. It could demonstrate self-regulation that could make it easier for all those working in this very difficult area of the industry.

It could provide its membership with a seriously useful selection of resources. The self-help aspect of e-mail forums such as Editorial Photographers UK (http://www.epuk.org/), National Visual Journalists Photo discussion list (http://www.nvjphoto.co.uk/) and many others are already well known. A web site where music specialists can show their work could be valuable.The British Press Photogrpahers Association (http://www.thebppa.com/) provides a wide range of facilities for its members including hosting exhibitions and publishing books.

But setting up such an organisation will require finance, dedication and some people putting in a fair bit of time and effort. Ongoing it would require at least one part time member of staff and this will cost.

How will membership be configured? Will there be some sort of standard to be reached? Perhaps quality of work, amount of work published? Will part-timers be accepted? What about those who cover music events regularly but maybe not the major part of their income? Is there a place for keen and gifted amateurs?

If a standard is to be required for membership then there must be a way made available and clear for applicants to improve and reach that standard.

Who is to judge?

Will this association have licentiates, Associates and Fellows as do other associations (MPA, SWPP, RPS).

What about a mentoring programme?

 

What happens next

The next steps already under way, and informal approaches are being made to the Music Public Relations, and Management organisations via individuals. The NUJ has made approaches to the Musicians union again and another piece is expected to be in the winter edition of their journal.But this time there will be ongoing dialogue.

But what do you, the Professional Music Photogrpahers think? Please fell free to pass this document and its attachments to other photographers, and discuss its contents with those you know in the industry.

 


 

[i] Sample contracts accompany this document, and include documents from Steven Segal, Artic Monkeys, Lenny Kravitz

[ii] A description of the problems can be seen in the recent BJP article attached and available on the web http://blog.blackshadow.com.au/wp-content/uploads/2008/09/012-013_bjp_03-09-08.pdf

[iii] See attached document

[iv] See attached document

[v] See attached document

Pete Jenkins contact details are available on request.

Supporting Documents

080300-steven-segal – “agreement” to shoot Steven Segal – take particular note of the $1 million breach of contract clause

lenny-kravitz-elease-form – an “agreement” that signs over rights to the performer and severely limits the photographer’s rights

wonder-release – a release form to shoot Stevie Wonder

2007-my-chemical-romance – My Chemical Romance photo release which includes a nasty $30,000 breach of contract clause

080927-photographer_artist-agreement-03 – draft agreement for discussion

080927-draft-guidelines-for-photographers-and-artists-03 – draft guidelines for discussion

5-news-2 – article from the Musician News

BJP Rights Grab Article – article from the British Journal of Photography


 

Misery Xchord (97 Posts)

i am a very pretty hate machine. artist | illustrator | blogger | photographer (not a terrorist)








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