Taylor Swift changes her photo release contract – let’s have a close look

I was on a short holiday with my family last week when I was alerted to a breaking story about Taylor Swift changing her contract..

Various people claiming “You’ve won, she’s backed down”, “Well done!” “Great to see her knocked down a peg or two”……  Well, let’s slow down a bit..

Firstly, it wouldn’t be great to see her “knocked down a peg or two” at all..  I don’t believe she has been knocked down a peg, nor does she deserve to be.  She had a bad contract in place which was highlighted due to her publicly criticising Apple for trying to enforce an egregious contract on her…
She said the right thing, at the right time.  Just under the wrong circumstances.

My open letter to her was nothing personal, and musical or personal taste had nothing to do with it (for the record, I quite like some of her songs).  I’ve seen many comments on my own blog and many other articles criticising her personally for her songs or her looks, and her background. These comments are completely unfair, unwarranted and not only do they not reflect my own feelings, they do nothing to help the issue at hand – Photographers being forced under economic duress (and in one case for myself, actual physical duress) to sign unfair contracts in order to carry out their work – AFTER they have already been accredited and received confirmation that a photo pass will be issued.

Anyway, being away from the computer, I hadn’t had chance to examine the alleged new contract, and let me first of all issue a caveat here – I have not been provided the contract by any “official” source – no-one from Taylor Swift’s management or representatives have spoken to me directly since my open letter, so I can not claim this contract is genuine or if it is being presented to press photographers as at the time of writing.  I have seen several articles questioning the authenticity of the 2011 contract I published in my original post – I can categorically state that it IS genuine (and less severe than the 2015 contract), and was supplied to my commissioning newspaper by Taylor Swift’s UK PR company back in early 2011.

So now I’m back in my office and had time to study the contract in detail and will publish my thoughts on the revised contract.

Before I do that however, let’s understand the industry we’re talking about – concert photography.  Many die-hard Taylor Swift fans seem to think of concert photographers as ‘paparazzi’, or ‘parasitic scum’ as one put so eloquently, seemingly sucking a living off the talent of “real artists” and having no skill of our own.  Or they thought of ME as paparazzi scum at least.  I’m not paparazzi, and never have been.  I have no interest in stalking celebrities to take photos of them buying a pint of milk, thank you very much.  Anyway, clearly, they didn’t read my second post on the subject which explained how the access is granted in a fair exchange for the expectation of publicity, and that concert photographers help provide and maximise the coverage that the artist achieves in newspapers and magazines (and which they are paying a publicist to help achieve!).

There are several ‘models’ to this business, and I’ll mention the most common here:

1.  The “Work for hire” or Tour Photographer. Where a photographer is paid to photograph a show, or any number of shows along the tour, and paid a mutually agreed fee.  Rights are negotiated – though usually bigger names try to have all rights assigned, including copyright, so the photographer effectively gets paid once, and can’t do anything with their photos again – they effectively belong to the artist or management. Occasionally, photographers retain copyright and may grant the artist ‘exclusive’ rights, maybe in perpetuity, sometimes with a time limit of 6 or 12 months, after which the photographer is free to license the images to other clients – save for advertising or commercial use.

This type of concert photographer is NOT the subject of the ‘unfair contracts’ issue – as there is opportunity for both parties to negotiate terms well in advance, and the photographer is under no pressure to sign an unfair contract due to commitments made to their existing clients, which may include newspapers or magazines.

2.  The “Staff Photographer” Where a publication, such as a newspaper or magazine sends an employee to photograph a concert.  The photographer is paid by the publication, regardless of them getting in to the show or getting any usable photos.  Naturally, they will be under some pressure to make sure they do their job, but put a contract under their nose and some of them will sign it – because it makes no difference to them or their paycheque.  The copyright in their photos belongs to the publication, as they are employees.  However, many of these contracts are legally binding documents, and most staff photographers are not authorised to enter into them on behalf of their employers, but some of the staff photographers I know don’t care – and don’t believe the contracts are worth the paper they’re written on.

3.  The “Agency / Freelance” Some agencies like Getty, or Press Association use a mixture of freelance and staff photographers.  Again, staff photographers will get paid a shift rate and the copyright belongs to the agency.  Freelance, or contributing photographers only get paid when images are published, and the agency takes a percentage of the sale – typically 50% (Getty currently takes 65% from the photographer). A contributing photographer usually shoots on spec – they will seek out their own accreditation, usually under the name of the agency with their permission, and cover their own out of pocket expenses the entire way.  This includes all equipment, lens hire if necessary, insurance (including public liability etc). The contributor earns nothing except for what they make in royalties, so if a picture isn’t published, the photographer earns nothing – despite whatever expenses they have incurred.   Sometimes, a photographer may need to hire a long lens for particular jobs.  There is little point buying a lens for £8,000+ ($12,000) when it might only be used 5 or 6 times a year, so it’s much more sensible to hire one for less than £100 a day…  but that hire cost still needs to be paid, and this may take more than one picture sale to even recover this cost, before you make any profit!

4.  The commissioned “Freelance” or “Stringer”  Usually the same photographer as #3, but who has a regular commission from a client to provide them with pictures to accompany reviews.  Sometimes the publication will ask for a specific event to be covered, and may, or may not choose to pay the photographer for attending, but usually it’s still only payment on publication. This type of photographer has the pressure of having to fulfil their clients expectation of pictures.  If they do not provide the pictures the client has requested, they may damage their relationship and could stand to lose the trust of the commissioning editor.  The unfair contracts presented just before a concert put the photographer in an extremely awkward position, one of “economic duress” – where they stand to potentially damage their reputation, lose a client, or incur unrecoverable expenses if they do not sign the contract placed in front of them.

It is important to remember that NONE of these types of photographer are ‘paparazzi’, nor are they getting rich off the artist’s talent in return for nothing.  Remember, they are ALL shooting for “EDITORIAL” use – not merchandise, not mass produced posters or unauthorised mouse mats etc.  The photo passes are provided on the basis they are used by MEDIA organisations for editorial coverage.

If you look on eBay for concert photos – you will usually find sellers with CD’s full of concert photos…  These are not photos taken by those with photo passes, but by FANS.  Fans who take cameras in to the shows and take hundreds of photos during the whole show..  have no idea what a good photo looks like, and doesn’t care if the singer has their eyes closed, tongue out, and traces of cocaine all around their nose..  those shots will be on the CD..  with no contract having to be signed.  Yet the professional photographer who tries to present the artist in a positive light in every photo is expected to give up the rights to their work, and be lambasted by the very fans that actually ARE profiting from unauthorised photography. I am freelance – both #3 and #4.  I license images directly to clients, I also syndicate my work through agencies where syndication is allowed.  I am also commissioned directly by clients who expect me to supply images when they need them, but still only pay for what they publish.  I have also been #1 but having a family restricts my options for this work. Being self-employed, I have to pay for my own equipment, my own software, insurance, and expenses.  I also have a mortgage to pay, and since this is my “day job”, I have nothing to fall back on if I can’t work.  If I can’t work due to a restrictive contract, I have no chance of getting paid.

Back in 2011, I was asked by The Express and Star newspaper to photograph Taylor Swift at the LG Arena in Birmingham, United Kingdom.  I was sent a copy of the contract, and I refused to agree to let my photos be supplied to Taylor Swift for her free use.  As a freelance, I retain my copyright and license my work to the newspaper, so without my permission, the newspaper does not have the right to give my photos to anyone else.  However, I still had the risk that if the newspaper didn’t publish a picture, I would not be paid and I’d have had a wasted journey and out of pocket expenses, due to the ‘one time only in the above publication’ clause.

Fortunately, they did run a picture..  on the front page of the morning edition..

But by the time the first edition had been printed, the Hollywood legend Elizabeth Taylor died, so by the afternoon, most of the newspapers were dedicated to the life of a different Taylor.  Thus, if it weren’t for the newspaper having a first edition, then none of my pictures would have been used, I’d be unable to license the photos to anyone else, not even other local newspapers in the neighbouring regions, and I wouldn’t have been paid a single penny for my work the previous night.

This is why I object to Taylor Swift’s contract (and any other contract with similar restrictions).  The above clipping is an example of why concert photographers are important.  They DO provide publicity and coverage of the artist.  A few people say the artist doesn’t NEED publicity..  this may be true to an extent..  There will be times when an artist doesn’t necessarily need it, but I guarantee, there will ALWAYS be a time that they DO need it.  Taylor Swift didn’t get to where she is today without the media helping to increase awareness of her.  If they don’t need publicity – why hire a publicist?

Publicity is important – it doesn’t matter HOW big the artist is, publicity is good..  When an artist embarks on a new tour, their publicists usually engage the media to run ‘preview’ pieces in order to raise awareness of the impending ticket launch, or album.  I frequently get emails from press officers promoting their roster and many expect their carefully crafted press release to be reproduced on the pages of a newspaper or on my blog. A photograph from last night’s show is unlikely to help sell tickets for tonight’s show, granted – but in 18 month’s time when the artist is planning to return to the same city and tickets are about to go on sale, reproducing a photo from the previous tour along with a preview piece about the upcoming tour certainly will.  Unless the contract prevents publishing a photo more than once of course.

And should anyone doubt the artist’s need for publicity, less than two days after the above front page, Taylor’s UK PR emailed me and asked if I could help get them a copy of the newspaper with Taylor on the front as they needed to send it to Taylor’s team – they’d requested a copy, but had been sent the late edition which only contained Elizabeth Taylor..  so yes, they DO want the publicity, and they PAY publicists to prove they’re getting it!

But – I digress, and I’m in danger of making this post a victim of TL&DR…  so let’s examine the alleged new contract from Taylor Swift’s team in detail, and see how it affects the various types of concert photographer.

Again – I have not been contacted by any representatives of Taylor Swift, so I cannot guarantee the authenticity of this contract, which was obtained exclusively by Mashable.com – but assuming it is genuine, let’s see go through it.

The alleged new Photographer Contract of Taylor Swift, reproduced with kind permission of Mashable.com

Firstly, the preface:

“You agree to abide by the following guidelines”

So they’re guidelines – not explicit terms?  “Guidelines” are recommendations, not enforceable requirements.. This seems a bit loose for a contract, but this is me splitting hairs.

“If Taylor Swift wishes to post a review or photo of The 1989 World Tour used by your publication on any of her special media accounts or pages, you hereby grant Taylor Swift and Firefly Entertainment, Inc. (FEI) worldwide rights to use such links on her social media accounts”

A couple of issues here..  firstly, no photographer has the right to grant permission to use someone else’s copyrighted work – This term requires the photographer to grant Taylor Swift or FEI permission to use the property of the publication..  No photographer has the right to allow a third party to use their employer or commissioning publication’s intellectual property.  By agreeing to this contract, the photographer is potentially opening themselves up to liability for copyright infringement.  The photographer is not likely to write the words.  Staff photographers (#2) don’t own the copyright to their photos, and freelance photographers (#3 & #4) have no authority to allow any reproduction of their client’s material either..  More seriously, this COULD result in Taylor Swift being liable for copyright infringement as well – I’ll explain in a moment.

“This is not an authorisation for use of said photographs for printed or digital commercial use or any merchandise such as tee shirts, tour books, etc.  By signing this Authorisation Form, you grant to Taylor and her companies reciprocal use in social media of the same photographs of The 1989 World Tour that you published.”

The first sentence seems fair enough, although some may argue “self promotion” falls under commercial.  It’s a fine line, but I’d agree to class it as promotional rather than commercial, since the intention of reproducing a review, as a social media post is more to do with stroking ones ego than making a profit.  However, if a photo were to be used with “Check out this photo, then buy my new album” – I’d definitely class that as advertising/commercial…

The second sentence has a problem though..  “That you published”.  Photographer type #2, the Staff Photographer is an employee of the publisher, but is not THE publisher.  The freelances, types 3 and 4 aren’t publishing the images..  but licensing them to the publisher and even further removed from the publisher.  Therefore, since the photographer has not published anything, it could be argued that this clause cannot apply to the photographer.

“You will ensure any images used by your publication are properly watermarked and credited at time of original publication so that if Taylor references them, the photographer will receive proper and full credit.”

It’s hard enough trying to get publications to give us a byline in the first place, let alone let us put our watermark on the actual image.  It’s good that they intend to give proper and full credit to the photographer, but really, if they intend to post just the photograph outside of its original context (i.e. without the whole review), then the photographer should be paid.  It’s an entirely new reproduction of the image and should be licensed as such.  If they intend to publish the whole article, then the photograph is incidental to that – but again, the photographer cannot grant that permission – it would have to come direct from the publishers.

“

This contract does NOT transfer copyright away from you, the photographer or publication.

“

Sensible, and reassuring.  However, this could still leave Taylor Swift and Firefly liable for copyright infringement.  Here, they are acknowledging that the copyright remains with the photographer, OR publication..  but they are asking the signatory of the contract to grant them permission to use copyrighted material which may not belong to the signatory.  So what if a freelance photographer  (#3 or #4) signed the contract, owning the copyright to the photographs, but not the published article or review.  If a staff photographer (#2) signed the form, then the copyright to the photographs belong to the publication as well..  so if Taylor Swift then reproduces the review or photograph, the publication would have their copyright infringed and have a case.  So Taylor Swift has a contract with the photographer?  She would still be liable.  The fact that a contract exists between her and the photographer does not automatically give her any rights to material which the photographer doesn’t own.  The photographer can not assign or grant rights to intellectual property he/she does not own, and thus it does not prevent Taylor Swift being liable for copyright infringement.  It may well mitigate the circumstances, but since the copyright owner (the publication) has not explicitly granted permission to Taylor Swift, she is legally liable for the infringement if she publishes the copyrighted work.

I have had cases where a third party has infringed my copyright believing that a contract that existed between them and my own client (which stipulated my client had a requirement to supply the third party with images), they would not be liable when my client gave them MY images to use outside the scope of their original license. Both parties eventually discovered that is not the case, to their great expense, that no matter what contract exists between themselves parties, it does not mean the copyright owner is bound by it, or that the rights are transferrable as a result of that contract.

On to the numbered points of the contract…

1.  You will only take photographs of the performing artists during the first and second songs of the concert in the credentialed media area, and you will not use a flash or lighting device while photographing the performing artists.  You will not access any other area without permission and accompaniment by management.

A perfectly reasonable condition.  Typically we are given 3 songs to work in, but this is not set in stone. Sometimes we can shoot whole Shows, sometimes it’s a few seconds, or a couple of minutes – depending on the artist.  This is a challenge that we have to accept and just do the best we can.  Sometimes, even a couple of minutes is too long, when it’s a performer who is fairly static, with no costume changes or variety of movement..  you’re never going to get anything different even if they give you the whole set to shoot..  so this is fine. Yes it would be nice to have the option to shoot a whole show, but the audience who paid for a ticket don’t want to be distracted all night by a group of photographers vying for the best shots of the evening, so this is a fair compromise, in my personal opinion.

2.  Any photographs taken by you will only be used by the organization you represent and its website for news and information/editorial purposes, and you will not use the photographs for any commercial purpose unless you receive prior written permission from us.  This use will be for news or information/editorial purposes by the organization listed below and on its associated websites.

Again, perfectly fair.  Although the phrasing here now says “organization” rather than publication, it implies the images can be syndicated by agencies, for editorial use only..  however, my understanding is that Taylor Swift does not allow agencies or syndication, except by Getty Images – so for “organization” in this clause, I read as publication. Who does “us” refer to in this paragraph?  Is it the publicist who has sent the contract to the photographer, or is it Firefly?  How do we contact them?  There is no address or email contact listed on the contract..  so how can you even begin to seek permission?

3.  Neither you nor others are allowed to use the images or names of the performing artists for any commercial purpose whatsoever, without prior written authorisation from FEI.  Credited photos used by the publication can be used the photographer’s website and portfolio.

Ok..  a couple of issues here.  Firstly, this clause means that ONLY photographs that the publication use can be used on the photographers own website.  So that line above that says “this contract does NOT transfer copyright away from the photographer” doesn’t mean much, when the copyright owner can’t use them on his own website unless his client does first…  What if the photographer takes 30 fantastic shots, but in a hurry, the publication picture editor chooses the photographers least favourite?  Only that one single shot can be used in the photographer’s portfolio, while the other 29 sit on a hard drive hoping that one day the publication might publish another…

Secondly, the wording also means that the photographer can ONLY use the pictures that the publication uses IF the picture(s) are accompanied by a credit – So if the publication doesn’t print a by-line with the picture, this clause prevents the photographer using the photographs in their own website or portfolio.

4.  You and your Publication release the performing artists, FEI and their agents, related entities as well as the entities’ officers, directors, employers, contractors, and agents, from and against any and all liability of any kind arising out of this agreement and your attendance at the Concert.

Wait a minute…  So if I sign this contract and attend the concert, I release Taylor Swift, her management, and anyone who works with them from all liability for absolutely ANYTHING?  So they could assault me, damage my equipment, either accidentally or intentionally, and I would not have any claim against them?  This clause shouldn’t even be in the contract. It’s laughable.  If there is any negligence which results in an accident or damage, then I should have the same right as anyone else – including fans.  Likewise, if Taylor Swift throws her guitar in the air and it cracks my head open or smashes my lens, I should not have to waive my rights to remedy.  Of course, if it were MY fault, then I’d expect to be liable for any damage etc. Now you may think this clause would absolve Taylor Swift and FEI of any liability for copyright infringement, as described above.  But, the next point questions this…

5.  The terms of this agreement are binding upon you, the Publication, all successors, representatives and agents.  You do not have the right to assign the terms or rights hereunder.

Now, I’m not a lawyer, let me make that clear..  but I have a strong feeling that a third party can’t be bound by a contract that I sign without their authority.  I have absolutely NO authority to bind a publication or anyone else to a contract that I sign.  Simple as.

Now Taylor and FEI may assume that this will protect them from copyright infringement if they then go on to publish a photo belonging to the publication, but no, it won’t.  It doesn’t matter WHAT contract exists between me and Taylor Swift, it doesn’t remove liability for copyright infringement of a third party, EVEN IF I SIGN THIS CONTRACT.  The contract exists between the photographer and Taylor Swift/FEI – NOT any third party who may not even be aware of the existence of it.  I cannot therefore assign rights I do not possess to someone else under the nose of the rights owner..  that is pretty simple to understand, right, even if, like me, you’re not a lawyer?

6.  If you or the Publication breach this Agreement, all rights will be immediately rescinded.  You acknowledge that any unauthorized use of photographs or use of unauthorirzed images taken at the Concert may cause irreparable harm, injury and damage to FEI and Artist; and FEI and Artist may be entitled to equitable relief in addition to any other remedy.  You understand that if you violate the rules of this agreement at the concert, you may be asked to leave the concert or credentialed media area, and that security may ask to view your images.  If it is determined that you have taken photographs beyond the rules of this agreement while at the concert, you may be asked to delete those images.

So now the photographer is going to be held accountable for the actions of the publication, that may not even have seen the Agreement they are expected to adhere to.  The middle part of this clause I suspect is to protect their own merchandising deals, as many artists these days have exclusive licensing deals with specialist merchandise companies.  These companies can pay vast sums in order to have the exclusive right to produce and sell authorised merchandise, so if a photographer or publication decides to produce Taylor Swift T-Shirts, then of course, it damages the business interests of the authorised merchandise company….  How much damage though is arguable, and it’s hardly ‘irreparable harm or injury’.  Still, as harsh as this clause sounds, I can understand their desire to include it…

I disagree with the part “you may be asked to delete those images” – I would NEVER agree to delete images under those circumstances.  What they are asking you to do is effectively delete evidence you may rely on, IF any legal action were to be taken against you.  If, for whatever reason – lets hypothetically say the artist swung a mic around and accidentally knocked out a fan in the audience and they blame a photographer who, rightly or wrongly, was taking a photo outside of the agreed number of songs..  That photo may be very important for the photographers defence..  it may even be vital for the ARTIST’s defence if it turned out to be the fault of the fan who was struck. Not even the Police have the authority to delete photos from the back of a camera, without a court order.  They can ask you to delete, but they can not force you, and I wouldn’t recommend you agreeing to delete.

We certainly hope you enjoy your experience at The 1989 World Tour.  Please let us know if there are any questions or concerns that we can address during your visit with us.

It’s all very civil, very polite, and a grand gesture…  but HOW do we contact you?

So how does this contract affect the different types of photographer?

Well, this contract won’t apply to the Work For Hire (#1) or Freelance/Agency (#3) – as the tour photographer will have a different contract entirely.  Agencies are not normally allowed at Taylor Swift shows, so this particular contract doesn’t apply to the agency photographer either..  Getty (effectively the “Tour photographer” on The 1989 World Tour) may have to sign this contract, but since The 1989 Tour photos in the Getty library are credited “Getty Images for TAS”, I suspect they have an exclusive licensing deal between them, and subject to a different photo contract.

So – this leaves the staff photographer, and the commissioned freelance photographer.   The staff photographer isn’t affected, whether they sign it or not.  Most will be told they can’t sign contracts like this for legal reasons, but they aren’t usually going to face any consequences if they choose not to sign the contract and walk away from a show.

The freelance photographer however, who has been commissioned by a newspaper to get photos faces a dilemma.

If they don’t sign the contract, they walk away with no pictures. This means they don’t get paid, and the publication don’t get pictures that they were expecting. This could lead to the publication losing faith in the photographer, and the photographer could lose future business or lose the client entirely.

If they DO sign the contract, the photographer is implicating the publication in a legally binding contract.  I have already raised the issue of the legality surrounding this..  I personally don’t believe that the publication CAN be bound by the contract unless it explicitly authorises the photographer to act on it’s behalf – but either way, I see there being a huge loophole which could leave the photographer, the publication, or even the ARTIST with a big legal bill. Even so, signing it leaves the photographer with the risk of the publication still not publishing a photo, and the photographer still not getting paid, nor being able to use ANY photo in their portfolio – making it just as worthwhile to not bother signing the contract in the first place.

Conclusion

I appreciate this post may seem long winded, and extremely pedantic – but when two lawyers on opposing sides look at a contract, you can be sure they’ll be pedantic too, they’re being paid to be, and they will pick flies with each other’s interpretation of the phrasing for as long as they’re paid to…

Remember –  I am not a lawyer, but I have concerns over the wording and implications of this particular contract having had time to study it in detail. How can photographers be expected to understand, agree, or even negotiate contracts like this that may be presented to them with as little as 5 minutes before an artist takes the stage?

I understand artists, including Taylor Swift, wish to control their likeness and their brand.  I support that. I also respect the artist’s right NOT to allow photographers in to their concerts, I have no problem with that – I have no automatic right to be allowed to photograph ANY concert in a private venue, and if they want to close the books and hire a tour photographer, or have no photos at all, I’m still cool with that too.

I also respect the artist’s right to restrict my photos to be licensed to one commissioning publication (sometimes referred to as “no agency/syndication”, or “commissioned publications only”).

However – when I am approved, accredited, and authorised to take photographs of a concert, I am also entitled to retain ALL rights to my work, to be granted the same legal protection as any other person, to be allowed a safe working environment (not placed in the middle of a drunk and violent crowd) rather than a secured area), and I should be entitled to show my work on my website, or in my own portfolio, and for the publication that commissioned me to be able to reproduce my photo as often as they see fit, so that I can get paid accordingly for each extra bit of publicity generated for the artist – especially if that publication has to be my exclusive outlet for that set of photos.

Thankfully, Taylor Swift has shown some compromise with the terms of her contract – but I don’t believe it goes far enough to protect the interests of freelance photographers, especially those who may have been commissioned by a publication. A lot of newspapers are shedding photographers lately and hiring them on a freelance basis, so the role of “staff photographer” is becoming more scarce and the publications are relying more on freelances.  I also wonder if this contract might just leave her open to unexpected liabilities for copyright infringement?

Is  a contract really needed?  What is a fair contract?

To any artists who wonder what they should include in their contract, you can just specify “Editorial Use Only” and everyone will be happy and still know how to behave.  If you would like a more lengthy document which explicitly prevents us using your image for merchandise without your permission (the law already does that by the way),  then please consider this contract – produced a few years ago by various journalists, including Pete Jenkins, George Chinn, David Redfern, Simon Chapman, Phil Sutcliffe,  myself, The National Union of Journalists, endorsed by the Union and members of the Music industry:

Photographer and Artist Agreement 0.97.pdf

There really isn’t any need for a contract – the photographers apply for a photopass to the artist’s PR or press office, giving details of who the photographer is shooting for and between the PR and management, they decide who is granted access to shoot the show..  but access is granted on the basis that the photos are to be used for editorial purposes only.  They are not normally given to photographers who just want to shoot a show for the fun of it, or to produce merchandise from..

If anything, tighter controls should be placed on the allocation of photo passes in the first place, rather than tighter restrictions on the working professionals that are accredited and trying to earn an honest living.

Thanks for reading, and if you read the whole thing up to this point, please feel free to comment and share your opinion.