Response to Taylor Swift’s agent

After my public response to Taylor Swift’s open letter to Apple, I didn’t quite expect the phenomenal reaction it received.  I knew it was provocative, I knew it was going to be risky and could possibly harm my chances of getting access to other concerts in future..  but it needed to be said – out loud.  When I thought hard about the possible consequences, and restrictions on my access to future work, I asked myself “What point is there in going to work if I can’t be paid for it – yet everyone else gets to benefit from my labour?”.  The answer?

There was nothing left to lose. When you’re faced with a choice of working for free to save a millionaire having to pay a reasonable fee, or not working at all..  what would you do?  

So, it escalated. Very quickly, and the media have picked up on it all around the world. Her UK agent put out a counter-statement to my letter, which many publications have claimed “Taylor Swift responds”:

A UK spokesperson for Taylor Swift said: ‘The standard photography agreement has been misrepresented in that it clearly states that any photographer shooting The 1989 World Tour has the opportunity for further use of said photographs with management’s approval. ‘Another distinct misrepresentation is the claim that the copyright of the photographs will be with anyone other than the photographer – this agreement does not transfer copyright away from the photographer. Every artist has the right to and should protect the use of their name and likeness.’

My response to the statement follows:

Firstly, of course Taylor Swift, and any other artist, has the right to protect the use of their name and likeness.  That is not in dispute..  but protect them from what?

We’re concert photographers..  not paparazzi. I have no interest in publishing an unflattering photo of an artist. For one thing, it would do far more harm to my career than it would theirs.

Artists like Taylor Swift grant press photographers access to photograph their shows, in exchange for the expectation of helping to provide as much positive coverage in the media as possible – coverage that they are expecting their paid publicists to achieve.  That is a mutually beneficial “something for something” exchange. She gets coverage, photographers get to earn a living.  

 As a creative artist, I champion the rights of all other artists to receive an equitable “something for something” exchange, just as Taylor was claiming in her open letter to Apple.  In our society, the most beneficial something to receive is hard currency, which is a concept nearly everyone can relate to; you trade your time, skill and energy in return for monetary gain – because earning money is a malleable benefit that can be shaped to the person who receives it.

However, in the creative arts, there is an increasing tendency to seek “nothing for something” exchanges – where you are expected to apply your skill, time, efforts etc. for the benefit of a third party and, in return, receive an intangible – and sometimes non-existent benefit.

Taylor Swift’s contract from 2011 included clauses that were not equitable.  They leaned toward a “nothing for something” exchange, where the photographer could only license images a single time in one named publication, never use them again, and she would be allowed to use them for non commercial (i.e.: publicity) use for all eternity, without having to compensate the photographer, thus unfairly favouring the interests of Taylor Swift to the detriment of the photographer. 

The current contract being presented to photographers on her 2015 “1989” tour goes even further, preventing publications from using the image past 2015, and also threatens the destruction of photographers equipment (including but not limited to cell phones, memory cards, etc) if they breach the agreement.  

This is the issue I took with Taylor Swift’s reply to Apple with regards their original intention to distribute artists’ work without payment for a three month period so as to help launch their streaming service, Apple Music.

Ms. Swift quite rightly took umbrage with such a request – because the sole beneficiary of that arrangement would be Apple.  As a new service, they obviously want to entice people away from existing streaming platforms, and how better to do this than allowing potential customers to road-test Apple Music for a ninety day period?

However, such expectations would be cannibalistic to musicians – they stood to lose out on per-stream revenues they are entitled to enjoy.  Ms. Swift, with her considerable leverage, has seemingly made Apple reverse that decision.  Although they have agreed in principle to pay artists for streams during that ninety day period, they have yet to say how much, or when.

Regardless, Ms. Swift railed against their “nothing for something” request because it was unfair.  Because it was exploitative.  Because it was inequitable.  I completely agree with her on that, and fully support it.

I spoke up against Ms. Swift’s photo release form for the same reason; She was intending to use our product, the photographs, to benefit her, while removing all possible compensation that we would be entitled to, even potentially going so far as delivering our products to our very own customers, who would not need to compensate us either.

Her UK based agent has said 

“The standard photography agreement has been misrepresented in that it clearly states that any photographer shooting ‘The 1989 World tour’ has the opportunity for further use of said photographs with management’s approval” 

In the version of her contract for her 2011 tour, that’s true, to an extent… but such a clause no longer exists in the 2015 contract.

There is no contact information on either contract to enable the photographer to seek management approval, and whenever photographers have managed to connect with management of other artists previously, their requests are frequently ignored or denied, although in the balance of fairness, occasionally do result in approval – but why should a photographer have to seek approval for something that is an automatic legal right – to receive benefit from their own work?  

The agents other statement was:

“Another distinct misrepresentation is the claim that the copyright of the photographs will be with anyone other than the photographer – this agreement does not transfer copyright away from the photographer”

 
Again, partly true, but disingenuous.  I didn’t claim anywhere in my open letter that copyright is surrendered to Swift – this may have been misreported elsewhere.  Still, both the 2011 and 2015 contracts demand an assignment of rights to Swift and Co. that are the near equivalent to handing over ones full copyrights, and the photographer is left with zero rights to use their work, not even as part of their own portfolio.

Both of the agent’s statements divert attention away from the core issue; Taylor Swift is seeking to unfairly benefit from the work of photographers, while claiming to be championing the rights of creatives against Apple.  This is clear double-standard that I called out as hypocrisy.

It may have been the case that Taylor Swift was blissfully unaware of the contracts.  I doubt that is now the case, and I would like to see her personal statement (rather than that of her UK agent) on whether she is willing to follow in Apple’s footsteps and amend the inequities of her current agreement.

Lastly, if Swift does feel the need to protect her name and likeness from potential abuse, all her photo access contract need stipulate is “Editorial Use Only”.

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29 thoughts on “Response to Taylor Swift’s agent”

  1. In the US, editorial only is the law. Every citizen of the US has the right to control the commercial use of their likeness. I imagine it is that way in many countries around the world, but it is written in statutory form in the United States. There really is NO need for these agreements at all. The agreements are clearly written by lawyers looking to get “something for nothing”, and prevent journalists from getting any future revenue from their creative works of art.

    Liked by 3 people

    1. Not quite; in the US, twenty-seven states have a form of “right of publicity” law; some are written as statute, some are only included as common law property right. That means there are twenty-three states don’t have any such laws.

      Also worth mentioning is that the United Kingdom, where both Jason and myself are resident, has no right of publicity laws at all, so it would be quite legal to sell prints or merchandise that depicts any famous person without their consent, so long as you weren’t claiming an official, direct connection with that person… hence there still being a need to stipulate “editorial use only” if you wish to avoid this.

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  2. I agree with everything being said here. However, I also think that Taylor’s boldness with Apple (whether planned or unplanned) allowed other artists in the industry (including photographers) to have a voice to open the door for some major discussions on how to make positive changes going forward. Someone of her media power had to take a stand, so that others could bring very real issues to the table.

    Liked by 8 people

  3. What pisses me off about this whole situation, and you in particular, is that you aren’t (or don’t appear to be) willing to take the necessary steps to protect yourself as a freelance creative professional, but are more than willing to play the victim card in order to: (a) have someone else do the work for you; and (b) generate buzz to build your own brand. And it undercuts the very good argument which is at the crux of this whole thing: that’s it’s unfair to ask someone to work for free.

    Basically, I learned early on how cheaply valued my time and effort were as a creative professional (I’m a freelance screen/copywriter), and that in order to stay in the game, let alone have a chance at winning it, I needed someone in my corner. So I did what I needed to, which is what you (and many others like you) could do, too: I HIRED A LAWYER.

    The big reason most people in the creative arts don’t is cost. Lawyers ain’t cheap, and in a speculative industry (at best), you may be eating up all your profits early on. However, what hurts in the immediate MORE than pays off in the long run.

    First thing is, we’re not lawyers (mostly), so asking us creatives to go through contracts and understand them and negotiate with agents and managers and lawyers is AWFUL, and how you get screwed. But by engaging a representative who DOES understand the system, and can provide you/us a buffer/resource until we DO learn the system? Well, you’ve just fought half the battle right there.

    Secondly, it gives you credibility as a professional. One of your rebuttals is in respect to contacting Swift’s (or insert act name here’s) company/representation is that they don’t always get back to your requests (though you admit that sometimes– and this is SPECTACULAR of them to do so– they ACTUALLY DO reply). Well, the simple reason they don’t is because they are likely bombarded with dozens, if not hundreds, of similar requests for EACH show/event, from dozens, if not hundreds, of “professional photographers” all with unique and different requests on how they want to use the created images. But all of these “professionals” end up blending into one big melting pot of “photographer requests,” without regard for quality or experience or whatever. But if you have your REPRESENTATION contact hers (or theirs), it cuts through all the bullshit and establishes you as an ACTUAL professional with a serious, well-thought-out usage in mind. And if you look like you actually know what you’re doing, as opposed to the hundreds of other “professionals” out there, they (meaning the agents/management companies) will ACTUALLY take you and your request seriously (this also answers your other pain point of, “You can’t even find their contact info…”; a lawyer worth his or her salt can and will).

    Thing is, this distracts from the REAL issue at heart in the struggle to be a creative professional, which is that OTHER CREATIVES SCREW THEIR FELLOWS OVER ALL THE TIME. Speaking from my own experience as a writer, I charge a certain amount for my services, and I deliver an expected level of quality in my work. However, I am unable to charge my appropriate rate, based on my CV and experience (which, as defined by the Canadian government under whom I live as a proud Canuck, should be about $100/hr– that’s in Canadian dollars, by the way, so like, $10/hr in real money), because there’s always some other “professional writer” (meaning “aspiring hack”) out there who’s willing to do the same job for a FRACTION of the money that I am, thus undercutting not only me, but THE WHOLE WRITING INDUSTRY in the process. And so we all suffer, because now writing gigs get priced lower and lower, and suddenly we’re now unable to earn a living, let alone a decent one, in the field in which we ACTUAL professionals excel. And I would argue that it’s exactly the same for photographers.

    The reason why publications and media outlets and, yes, even the stars themselves (and I include T-Swift in here for her degree of culpability in the system, which she definitely DOES have), get away with contract clauses and work-for-hires that bend photographers over a barrel is because somewhere, at some time, there was a “professional photographer” who allowed himself (or herself) to BE bent over a barrel, and thusly fucked it all up for everyone after him (or her). He (or she) set precedent, and now everyone’s gotta suffer as a result.

    So that brings us back to the issue of protecting yourself as a creative professional. The only way the system for professional photographers (and any other creative professional within their industry) changes is if ALL professional photographers have each other’s backs and agree to a minimum set of conditions and guidelines that the employing or profiting entities have to subscribe to, in order to engage their services (and if it sounds like I, a Traditionally Fiscal Conservative, am espousing the value of a guild or a union, well, I suppose I am, on principle). But since that’s unlikely to happen, you/we need to protect ourselves, because no one else will do it. And how do you/we do that? HIRE A LAWYER.

    Clickbait and publicity-hounding aside, you’ve picked the right fight. You’re just going about it ALL WRONG, and that’s what pisses me off.

    Wanna make a real impact? Start uniting other photographers under your banner and agree to not screw each other for jobs along the way. Hold the publications and media outlets that give you shitty conditions like upfront expenses and no guaranteed revenue (who your ACTUAL beef is with, by the way, because THEY are the ones who send you into the lions’ den wrapped in bacon and doused in Worcestershire sauce to begin with) accountable EN MASSE. Make THEM treat you fairly as an industry. THEN your life will get better, and contracts like this won’t happen.

    But until then? Hire a damned lawyer.

    Liked by 5 people

    1. If you can find me a lawyer than is available and able to read through a contract, suggest amendments, get them approved by artists, all within the 30 minutes or less that we receive most of them prior to the shoot, let me have his number.

      Liked by 8 people

    2. Establish a relationship with one prior to the concert, explain the priority/necessity of your situation, pay your bills when they’re due, and they will do it for you. The lawyer works for YOU. I’ve been in similar situations with quick turnarounds on TV/games contracts, and they’ve ALWAYS gotten it done when I’ve needed (and paid for) them to do so.

      Liked by 2 people

    3. > Start uniting other photographers…

      Wouldn’t your lawyer tell you that its illegal
      for freelancers to “unite” their actions??!!

      Like

    4. More than likely. It’s worth remembering that, although in this instance – the Taylor Swift contract is USUALLY presented in advance, most contracts are kept secret until the photographer reaches the box office (this despite previously receiving email confirmation that a pass has been approved).
      Now – IF you assume that there is an contract lawyer prepared to work for free, at 8.30pm on any night of the week, read through a contract, draft a new version, or amendments, send it back to the management.. AND if we assume that the contract has the management contact details on in the first place (most don’t), AND they can do this within 5 minutes or we miss the show…. you get the idea. 🙂
      And even if a lawyer CAN do all that in such a short space of time, it would cost more than the photographer is likely to make.

      You’re correct though.. there’s always going to be someone who will sign these things. Usually fans, or people with cameras who have different day jobs…

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  4. I think that a simple contract, that states that published photos must never be used to harm said artist nor photographer, and that earnings from publication must be shared in a fair amount (and what that relates to can be specified by later communication of if needed in a court of law) , should be more then enough to cover the concerns of both parties. I myself have signed some releases from other artists like the ones that are too commen right now, because mostly i knew i would never use the photos anymore. Also because taken photos are usualy nowadays only front of house, so with 500mm lenses, which doesnt make a good photo anyway, just a standard picture which has no creative value. A pity it has come to this nowadays.

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  5. Valid points have been brought up by junction10, agnosticbishop, and by Taylor Swift’s representative. I am a photographer and have written and negotiated hundreds of contracts and I see both sides.

    However, reviewing portions of Ms. Swift’s standard contract template leaves me feeling it is one-sided. Unfortunately, this is all too common in most contract negotiations. The average lawyer is typically asked to make every effort to protect the interests of their client. If the attorney is any good, they’ll write clauses like what is found in Ms. Swift’s contract template. Yes, the photographer does retain copyright on their photos, but to surrender usage rights to Ms. Swift royalty free until the end of time is a major concession. But to require the opposing party (the photographer) to jump through hoops to secure approval to use the photos is unbalanced. This is especially true given the contract template gives Ms. Swift’s agents the right to destroy the photographer’s equipment if the photographer breaches the contract. In addition, as junction10 points out, the practical reality of securing such approval from Ms. Swift’s representatives is difficult, painful, and usually onerous. This lack of balance borders on being unconscionable. And if you don’t have a background in contract law, here’s the definition of an unconscionable contract according to LegalMatch.com:

    “An unconscionable contract is one that is so one-sided that it is unfair to one party and therefore unenforceable under law. It is a type of contract that leaves one party with no real, meaningful choice, usually due to major differences in bargaining power between the parties.”

    And for most music photographers wanting to shoot a big name artist, there is often a major difference in bargaining power between the parties. Yes, the photographer can hire an attorney to negotiate, but there’s a cost to doing so and there’s no guarantee that the musician’s representation will be reasonable, especially given the tight timelines usually involved.

    I see several options to bring the two sides together:

    1. The artist can direct their attorney to write a more balanced contract template. On a scale of 1-10, where 10 is completely biased in favor of the musician, maybe Ms. Swift’s contract template is a 9 (disclaimer: I haven’t read Ms. Swift’s entire contract template, so this rating is illustrative only). However, the artist can always tell their attorney to dial it down to a 6 or a 7, still in favor of the musician, but more balanced. A good business attorney (one who helps business to get transacted while still providing reasonable protection to their client) knows how to do this. The contract template can have clauses limiting the photographer’s use of the photos (lawful, non-disparaging, non-obscene, not distasteful, non-pornographic, etc. purposes only, or to media that does not bring undue embarrassment to the musician). The musician can reserve the right to compel a publisher to remove from any photo published that the musician determines to violate this clause, without prior approval from the photographer. There are many ways to write precise contract language to this effect. Since most photographers (paparazzi excepted) try to build their brand and their business by making their subjects look great, both parties can gain from better balance. The musician gets healthy exposure and the photographer can get paid and can continue to build his/her business.

    2. Maybe one of the many photographer’s trade associations can provide a balanced contract template. One that protects the interests of both parties. As an example, the California Association of Realtors (CAR) provides standard contract forms and templates for use by their members. The templates are written in simple English, easily customized, and contains standard clauses to protect the buyer, the seller, and the realtors in the transaction. Most realtors aren’t attorneys and don’t want to get mired in legal minutiae. The standard CAR contracts are excellent. I haven’t done the research here, but if anyone knows if any photographer’s trade group has created such a contract template, please let us know so we can all sign up.

    There will always be a few photographers who would publish an embarrassing photo of their own mother to make a buck or to build their brand. It is reasonable for big name celebrities to seek some protection because they get targeted much more than the average person. However, in the spirit of standing up for the little guy, Ms. Swift could step up and hear junction10’s concerns and direct her representation to be more reasonable and balanced.

    Liked by 2 people

  6. I see both sides of this. Photographers have been lowered down the totem pole over many years. Some have gone against named artists for wrongful use of images, etc. and have won.
    But when it comes to misrepresentation or wrongful image use definitely make a voice to be heard and follow up in a professional manner.

    I’m a stickler when it comes to protecting my images and updating images for copyright asap. Just recently I found one of my images that was plucked from my blog and used in a online music zine. It peeved me as they removed the photo credit I placed on the image and they didn’t contact me for permission of which I clearly state on my website and blog. I reached the editor of this music zine and he voluntarily took the photo down within 30 minutes of contacting him.

    I’m certain this has happened quite a few times to my photographer peers and as frustrating as this is we need to speak up/out about certain
    provisions that we as working artists need to be clear about.
    Even now a days as images are treated with less respect and more as a lower valued form of commodity.

    Stand up and protect yourself and the hard work you put into your craft.

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  7. The only time I’ve ever encountered a similar contract was at an appearance of McFly during a day long festival. They also put a limit of first three songs [not that we wanted to hear more than that even through ear plugs]. As virtually all of us signed ‘Adolf Hitler’ or ‘Mickey Mouse’, good luck for their lazy exploitative management team on enforcing those.

    Like

  8. Unfortunately if it weren’t for Taylor Swift you wouldn’t have the photo or a market to sell your photo to. It’s a relationship that exists and you both need each other, because (surprise) you’re both creatives. If you were taking a picture of a mountain it’d be a different story BUT you are taking a photo of … someone else’s ART and FORM and selling it.
    Because in case you hadn’t realised it.. music is art. It takes a lot of work to produce that hour and a half on stage, the glitz, glammar, lighting, outfits, rehearsals, tickets… Expecting to own the rights and make money off someone else’s art is a little like this guy
    http://www.dailymail.co.uk/femail/article-3097994/Artist-fire-using-people-s-Instagram-photos-exhibition-without-permission-selling-prints-borrowed-images-100-000-EACH.html

    So try look at it from both sides. Thinking you should be able to take pictures of someone else and own lifetime rights to them is a little out of line.

    How’d you feel if I took a picture of you crossing the street in a pair of *shoebrandhere* and then blew it up on a huge billboard in Time Square? You’d want in on that action or have some say in how it was used, because that image is of YOU.

    Make more sense?

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    1. Brandon: I’m not even going to touch on the legal aspects of copyright and who-owns-what-and-for-how-long, as it would be very dry and not really help foster understanding of the fundamental issue at play – so here’s another tack.

      Yes, music *is* art – and, as hobbyist musician, I know exactly how much time and effort it takes to create the music alone. There are a ton of other creative professionals (also artists) that then work their magic to create a stage show that becomes the backdrop for a concert. If it’s Swift’s stage show, they’re being hired and paid by Swift and/or her associates.

      But here’s the rub: photography is also an art and, by extension, photographers are also artists.

      Much like good music, good photography doesn’t happen by accident. both are a fusion of knowledge, skill and ability.

      For photography, you have to understand light and shade, how best to set your camera to capture the scene as you want it to look, which combination of camera / lens will work best, where to position yourself, how to anticipate the “peak” moments – and dozens of other variables that happen on the fly, without the ability to interact with your subject, and no second chances.

      Being that concert photography is also largely done with the purpose of news reporting, it is also something of mutual benefit to the act being photographed.

      How do musicians gain larger audiences? Through media coverage.

      News media is akin to unpaid PR – and like soliciting anything without paying for it, you take a gamble on the results going in your favour i.e. you hope that the in-audience reviewer for [publication x] likes your music and style enough to tell their readers that you f’n rock, and they should damn well catch your next gig / buy your album / aspire to be your spouse.

      Photographs from concerts help draw eyeballs to reviews. Humans are mentally wired with bias towards visual stimulus, and a kick-ass shot from a gig will help draw eyeballs to a review and – sometimes – be so damn good in of itself that folk go “wow, that’s the dogs bollocks!”

      Think of Paul Simonon of The Clash smashing his bass on stage. Think of Johnny Cash flipping photographer Jim Marshall the bird after Marshall quipped “Let’s do a shot for the warden!” during Cash’s performance inside San Quentin prison. Then we have Jimi Hendrix setting his guitar alight at the Monterey Pop festival (another shot by Jim Marshall)… these are just three iconic examples of the collaboration between photographer and musician that resulted in something transcendent.

      Those three examples also have something else in common; they happened in an era before “first three, no flash” became the norm, and also before access contracts anywhere near Swift’s came into being.

      But now, in 2015, the *norm* is becoming something quite unbalanced that favours only one party. The people that shoot live music events aren’t usually in it for the money – they’re massive fans of music, ardent supporters and consumers of it, and they just happen to have a talent (or aspire to sharpen a talent) for creating eye-catching and memorable photographs.

      Their creation, their art, is *every bit as deserving of respect and value* as that of a musicians – do we really want to go down the road of “MY art is more important and worthy than YOURS” – because, if so, we’re all equally fucked.

      Why?

      If artists can’t treat *each other* with respect, how the hell are we supposed to convince Joe Public and/or Big Business not to rip us off or take us for a ride?

      That’s reason that Sheldon got fired up and wrote his first open letter to Swift; she was quick to claim she was championing artists in her push-back against Apple, but her tour access contract painted her argument as somewhat hollow, since it was akin to saying “Musicans? Fuck, yeah, we ought to get paid…. but photographers? They can suck one….”

      This creates a perception problem; one of the most common arguments used by people who rapaciously download music illegally is “Why the fuck not? The labels screw over the musicians all the time, so why should I line their fucking pockets?”

      Swift, in trampling on photographer’s rights (remember, they’re creative artists too) is just adding ammunition to such (flawed) arguments

      “Why the fuck should I not download ‘1989’ Taylor only cares about her own ass and shits over other artists… fuck her.”

      Of course neither hypothetical argument presents a valid ethical or morally defensible position… but you can hopefully see how Swift, in her demand for the right to use artistic work without paying for it, sets the stage for other people to say “good for the goose, good for the gander”

      Liked by 2 people

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