A real world response to your Copyright, Rant: An open response to Taylor Swift’s rant against Apple

Dear Jason Sheldon,

I am responding to your Copyright, Rant: An open response to Taylor Swift’s rant against Apple

First, I am just a mom of two, a new teacher at 47, old hair stylist for 20 plus years, and an occasional amateur artist who got a little perturbed by your sense of self-entitlement. An ugly trait, it is tragically prevalent in today’s society appearing to be the central cause for so much lackadaisical mediocrity.

I cannot help noting you have chosen to address Taylor Swift personally with your concerns. However, later you edited your note stating that in fact your issue is not with the specific artist, Taylor Swift. She stood strong in her conviction about her copyrighted material, persevering to the benefit of her music peers by refusing to release her content to apple. In fact, you clarified that your issue should actually be addressed to the publishers who contract you to take the photographs. As noted in your edit I quote,

Edit: it seems the circumstances of the contract aren’t clear to some readers, who assume this is a work for hire contract presented for being hired and/or paid by Taylor Swift.

That is not the case.. As a freelance photographer, I am asked to photograph concerts by publications. I get paid IF and when the photos are used, not for turning up to a show and shooting it. Therefore, if the newspaper has a bigger story to run and doesn’t have enough room to use my photo, I don’t get paid.

When I’m not allowed to do anything else with the photos, that means I’ve incurred expenses to work, which I can’t recover. Therefore preventing me from licensing my photos to more than one publication, or even (as later versions of this contract stipulate) preventing me from using the images for my own self promotion in a portfolio etc while they can use them without licensing the usage is highly unfair and unjustified.

I did not want to just respond without giving your argument for debate thorough analysis and thought. I understood that you are relating to her letter as a fellow artist who also wishes for fair compensation and arrears for your art. Like so many hard working souls from graphic designers, architects, to hair stylist like Vidal Sassoon artistic thought is at the center of your career. For you the value of your art depends on the purpose, focus point, originality of, and rights to your chosen medium.

The twist in your argument’s approach comes to me when I ask myself what your medium of art is and how it is marketed. You are a photographer not of the Ansel Adams sort who treks off into territories carrying the sole risk, unique interpretation, and cost of his artistic interest himself. You do not want to wait until favor is found in your art and your endeavors so that they were published and sponsored solely for their artistic value. Your medium is commercial and your points of artistic focus have been previously branded and are the intellectual commodities of another artist. Much like Andy Warhol and the Campbell’s Soup can or the images of celebrities, the focus art has a previous intellectual property owner. Also, you are not an artist for art’s sake; you do not accept the concept of a starving artist until your work is appreciated and give value by the masses. Your medium and professional purpose changes your rights to the intellectual property you work with.

You are seeking definite compensation for a job done, photography. You are a contracted professional who specializes in the sale of images. You suspended your right as an artist to seek future revenue for the intellectual property you produce, when you sought possible immediate monetary value for your labor instead. Just as a person writing computer code while working as a contracted agented for a big computer company knows, what you create while contracted on the job belongs to the “man”. You knew the terms going in and you gambled as many individuals do when they choose the freedom of freelance work. Sometimes you win and some time you lose but if you roll the dice and lay the chips down you accept the risk.

Your work within your chosen artistic medium specific to musicians and celebrities is much more like that of a studio engineer, another very gifted artistic profession. He or she uses their artistic prowess as a filter through which the musicians and singers focus their own artist efforts. The difference is as a free-lance photographer you request to be present in their moment. If your work is considered influential, an artistic concept trusted then you are be able to negotiate a stronger contractual relationship. If at completion of an engineers work, there is no use for the content or there is cause for concern about the quality of the product then the original artist has rights as defined within the contract in advance of completion. You are suffering the same fate in relation to your work as the engineer.

You do not dress or stage your point of artistic focus, the celebrity, during the events and/or concerts you photograph. You photograph their presentation of art so you are also a filter of their artistic energy. All the work you create while photographing your point of focus is conceptualized by (in your example) Taylor Swift herself and the team she has chosen to employ. And, given her current celebrity status they have excelled. You are there to capture high quality pictures of those moments. The value of your art comes from the stature, celebrity and creativity of personal branding achieved by the artist whose image you are capturing. If you are the chosen staff photographer asked to follow an artist on tour you photograph what you are ask, when they ask. If you believe, you contribute more you need to negotiate your terms giving value the extended work you do.

As you state in your note you are a contracted agent. The publisher is using the celebrity’s artistic image to sale and promote their publication, a benefit to both the celebrity and publisher. If there is no benefit to them then there is no need to pay you. Therefore, it would appear you are being paid according to a typical free-lance arrangement. It behooves you to keep YOUR brand in mind when negotiate the terms of your contracts. If the individual employing you does not see benefit in reimbursing you based on different terms and you do not wish to give away your images, you are free to do as Taylor did and say “No Thank You”, moving on.

Moreover, in investigating how many other professionally artistic individuals are paid it appears your reimbursement is a common approach across many fields. I choose studio engineers as my primary focus because both industries, yours and theirs, seem to have similar concerns about payment for artistic efforts. However, the approach by music studio engineers and their explanation for what is causing the devaluation of their work within the artistic medium, talent versus engineer, is very different. Many of the articles I read sited engineers working too cheap or free as the catalyst that has pushed compensation down. Those articles made me look back at the contract you showed as evidence an ask myself, should you and your whole industry see more value in your own work? Are “you” the cause of your own complaints, selling yourselves short? Yes, Taylor stood up for herself and in doing so, she benefited her peers. How are your peers behaving?

Consider that you may be taking the wrong lesson from her efforts. Maybe you should also refuse not to sign a contract to release your art if you will not be compensated, all while still allowing it to be used commercially? You are not offering up pictures of Taylor to an art gallery to wait for sell to a heartfelt buyer who loves YOUR work like Andy Warhol. These pictures sell because they are of the celebrity. Why are your peers accepting work instead of refusing to release their pictures until contractual norms are changed for everyone? Your industry has some real heavy weights who could shake things up if they wanted too.

Humanity tends to be its own worst enemy in this dog eat dog world so ask yourself; do you actually own her image as a work of art when you photograph her under contract to a publication? In that setting, are you barrowing a moment in her artistic expression to promote yourself? I respect what she did but I also get your point about fair compensation for your artistic expression. Nevertheless, as a contracted photographer working with celebrates you are not acting solely as an artist at that moment, the intellectual property is not individually yours.

Remember you have described the tough part of being an artistic person working in a white-collar field contracted profession, publication. In that setting, you are not an artist. It is a bottleneck career where only a few people find their way to the top to command respect. Taylor Swift aligned herself with her fellow artist still fighting their way to the top there by offering validity to their struggle while protecting her own interest. She functioned as a smart businesswoman who understand her value and the importance of appearances. Are your fellow photographers doing the same? I think you are gripping at the wrong group of artist. Change will require you and your peers to fix this problem within your own industry. Stand together or accept your fate knowing which battle you are really fighting.

Alternatively, you could change your career path and become an artist who works to create an original product, building your own concept from the ground up. As always with art, the value of your endeavors would lay in the hands of those who choose to purchase it. Art is subjective. Take pictures of images for which you can establishing your intellectual rights to first, and then offer them out for publication in the artistic arena instead of the commercial. Wait and see if the commercial takes an interest moving forward from there. Of course, that limits your access and resources, no free media passes to events. But, it would firmly establish your rights as a protected artist; tough decisions to make.

With kind regards,

LeAnn

A couple of quick references:

http://taylorswift.tumblr.com/post/122071902085/to-apple-love-taylor

https://junction10.wordpress.com/2015/06/21/those-in-glass-houses-shouldnt-throw-stones/

http://www.forbes.com/sites/oliverherzfeld/2012/10/11/resolving-conflicts-between-trademark-and-first-amendment-rights/

http://www.nytimes.com/2012/04/25/arts/design/artists-rights-society-vaga-and-intellectual-property.html?_r=0

http://www.law.harvard.edu/faculty/martin/art_law/image_rights.htm

http://theproaudiofiles.com/setting-studio-rates-101/

http://diymusician.cdbaby.com/2012/06/6-things-to-consider-before-entering-the-recording-studio/

http://www.farmelorecording.com/in-the-press/intorduction-to-contracts-for-engineers-and-producers/

http://www.slrlounge.com/photography-contract-template/

http://www.wipo.int/export/sites/www/sme/en/documents/pdf/ip_photography.pdf

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