For larger shows and larger artists, it can be common for concert photographers to encounter photo releases. These are legal contracts that may be sent in advance by a publicist or presented in person as a requirement to sign before a press credential or photo pass is given.
In this article, we'll look at your rights as a music photographer, appropriate contracts and photo releases to avoid — including “rights grab” contracts that strip photographers of their copyright.
Disclaimer: I'm not a lawyer. This is not legal advice.
Why Photo Releases Exist
Photo releases exist largely to achieve goals set out by a label, artist manager or other agent acting on behalf of an artist (as well as their own interests related to that artist).
Artist management and labels are charged with looking out for the best interests of their clients/artists, and one area of their job is the protection of their image. This protection comes in the form of commercial profit as well as controlling the access to the artist and their likeness.
One way that artist managers can help protect their clients is through photography releases that help control the use of their client's image/likeness. This control extends to editorial features as well as illegal image use and unauthorized commercial use.
Photo Access in Exchange for Value
The premise of the photo pass (read: access) and editorial coverage in general is essentially a trade agreement with an artist. You, the photographer and by extension your publication, are providing a valuable service to the artist in the form of publicity and editorial coverage, and in exchange, an artist's publicist is allowing you valuable access to their client.
Under this context, the images are not for a photographer's portfolio or for the benefit of the photographers. There's no “right” or entitlement of photographers to photograph an artist giving a private concert at a private venue.
Access at concerts is at the determination of the appointed gatekeepers for live music. Photo releases are another layer to this agreement that requires careful consideration from photographers and their publications.
General Types/Clauses of Image Releases
There are a few main categories of photo releases and contracts that concert photographers will encounter. In order of severity, from least to most, let's cover the common types of photography releases you'll see as a music photographer.
Confirmation of Rules
Some contracts amount to little more than a confirmation of the rules or guidelines that the artist's management has laid out for press. This may include confirmation of song limits, disallowing flash photography, and so forth. These confirmation of rules may take the form of the following:
By signing this agreement, I agree to adhere to the following policies when covering performances.
Photographs for the first three songs only and from designated area only.
No use of flash.
No obstructing of any concert attendees or performers.
Images are to be used for editorial and archival purposes only.
Risk Assessment: These are the most innocuous of contracts and photographers shouldn't be concerned about signing these types of releases. That said, these rules can be combined with other clauses that are more strict.
Limitation of Editorial Use and Publication
Other contracts will limit the use of the images created at a concert to a single assigning publication. This limitation is to ensure that artist management and publicist can approve specific publications and ensure that the images are not re-used elsewhere or syndicated (as with an agency like Getty Images or Wire Image).
The reason for this is that a publicist is approving a specific outlet for coverage when they grant a photo pass. This lets them control the placement and publication for their artists, and they know exactly how and where the images are being used.
Risk Assessment: Overall, these sorts of limitations to an assigning publication are not ideal, but the overall risk is low. Any limitation to how a photographer can use images within the realm of fair use (and that includes editorial use under the definition of the law) something photographers should weigh. However, in the relationship of access for publicity and press, it's within the right of a publicist to determine where the images are seen. Often portfolio use is allowed in this instance but when in doubt, check with the publicist.
Indemnification
Other image releases will claim indemnification or compensation of losses resulting from a breach of contract. This is often a clause in the contract that will appear in combination with one or more of these other types. These clauses cover the artist for losses and expenses, whether those come from a photographer illegally selling the images or from legal cost arising from a lawsuit.
These indemnification clauses will generally accompany one or more clauses, from simple ground rules for photography to the most severe copyright transfers.
Risk Assessment: Indemnification clauses by themselves are harmless if you obey the contracts. The risk of these clauses is the same as the level of infringement on them.
Prohibition on Commercial Use
Some releases will prohibit commercial use expressly. For example:
The license hereby granted to you to photograph the artist is limited to the above grant only and NO right to sell, license or reproduce the material for advertising or commercial purposes (e.g., for use as posters, calendars, T-shirts, biographies, etc.) either to be sold, to be distributed free or to be otherwise exploited in any manner whatsoever.
Risk Assessment: This kind of clause in a contract by itself is pretty harmless in my opinion as a photographer (not a legal expert). The reason for this opinion is that as photographers we don't have the right to profit from another's likeness without consent, so any commercial use would be illegal in the first place without proper approval by the artist themselves.
Rights Granted/Image Licensing
Some contracts will claim certain rights of the artist and their managements, agents, etc to the images. These contracts represent an image license whereby the photographer agrees to license images created at the concert. These licenses are often stated as non-exclusive licenses and this is an important distinction. With these contracts, the photographer retains copyright to the images and is “only” granting rights (albeit often expansive) to the images.
Licensor hereby agrees to license to Licensee, on a non-exclusive basis extending worldwide in perpetuity, the right to exploit Materials in all manner and media now known or hereafter devised
Risk assessment: On paper, granting broad rights for use is a high risk simply because you're not being compensated, yet the artist is often given permission to use the images in any way they see fit. In reality, I've personally never heard of an artist using images from a photographer under this kind of licensing. Therefore, it's difficult to put a true risk assessment to this, but legally and professionally, it's always a bad practice to give you work away from “nothing” as is the case with this kind of agreement.
Work for Hire/Assignment of Copyright (Rights Grabbed)
Finally, there are contracts that will not only ask for licensing rights from the photographer, but they will require the transfer of the copyright to the artist's management. The language may vary, but these contracts may state something like the following:
I hereby acknowledge that you shall own all rights in the Photos, including the copyrights therein and thereto, and accordingly, I hereby grant, transfer, convey and assign to you all right, title and interest throughout the universe in perpetuity, including, without limitation, the copyright (and all renewals and extensions thereof), in and to the Photos.
Another common clause with unfair photo releases are ones that reference one's “droit moral,” or moral rights as the creator:
I hereby waive all rights of droit moral or “moral right of authors” or any similar rights or principles of law which I may now have or later have in the Photos.
The transfer of all rights to the photos, including the copyright, should be viewed with all seriousness by photographers presented with contracts like this.
As recognized by the Berne Convention, the copyright of an artistic work lies with the author of that work on its creation. This applies to photographers — by default, photographers own the copyright to their images on their creation. It is only when the copyright or other rights are transferred to others that one assigns those privileges.
Risk assessment: The risk here, like the licensing, is very high on paper and the worst of all in the severity of implications. This is basically as bad as it gets. While the other risks of other photo releases is more hypothetical — an artist could use the images without compensation as in the above rights granted/licensing scenario — here the artist is now the owner of the images themselves and their copyright. Even if nothing truly comes to pass from this, it's a terrible position to be in as a creator that should be completely avoided.
Example Photo Releases and Contracts
Why you shouldn't sign rights grab contracts
Copyright grabbing contracts devalue the work of photographers, full stop.
Let's look at a few rationales for why you shouldn't sign prohibitively restrictive photo releases for concert photography. In the below explorations, we'll consider the worst case of a copyright transfer agreement, as these are the most offensive releases.
Unfair contracts devalue your own work
At their worst, photo releases that assign your rights to a 3rd party diminish your value as a photographer. If you're being paid on editorial assignment, your potential income is reduced to only what the publication is paying for the assignment at hand. All future earnings — even from legitimate editorial use — is now reduced to zero if you don't own the copyright to your images.
If you're not being fairly compensated in the first place, then you're creating images for the benefit of a publication that doesn't value your work properly and left with nothing — zero right to images you've made as a photographer.
Unfair contracts devalue the work of the photo community
Moreover, your actions as a photographer also affect the value of the photography community as a whole. Even if you're not concerned about fair payment for your work as a photographer, your decisions have repercussions beyond just yourself.
Unfair contracts affect all of us. Not only do they devalue the work of those who sign them, but they devalue the work of photographers as a whole.
Unfair contracts reduce your freedom
Even if you have no ambitions for yourself in the value of your work long term, the most severe photo releases limit freedoms that most of us enjoy.
Even the simple act of posting them to your own portfolio or social media account amounts to infringement because the work doesn't even belong to you. This isn't hyperbole, it's a literal interpretation of the worst kinds of photo releases presented to photographers.
The Norwegian Example
In Norway, the photographers collectively refuse to sign copyright transferring photo releases. It's such a known fact that even acts that widely require rights grab contracts throughout the world know better than to present them to Norwegian press. That is the true power of solidarity and photographers — and their publications — sticking together for a common interest.
Pushing back against unfair contracts
The reason rights grab contracts continue to proliferate is because photographers sign them. It really is as simple as that.
The best way to push back against unfair contracts is to understand the motivations of artists and those they've trusted with their image. From there, it's up to photographers to educate their publications on the reason why contracts are harmful to the photo community and the freedom of the press as a whole.
It's also up to photographers to pair their talents with publications who understand these issues and will advocate for their contributors. A publication who will fight contracts with you and for you is one worth dedicating your efforts to. In my experience, many publicists are willing to accept modified contracts for publications they trust and value.
Remember: the covenant of access in exchange for press is mutually beneficial to publications and publicists. Publicists will want to make publications they value happy to the best of their abilities so long as they serve the interests of their clients. Photographers should never forget that they have value and power in this arrangement.
Finally, it's up to photographers everywhere to take a stand to stop signing unfair photo releases. If your publication doesn't back you, I'd urge you to walk away from unfair photo contracts.
