Andrew McMillen inspects the contracts and copyright law related to recent Australian tours by Big Day Out artists Tool and Rammstein.
(Main pic: Slash vs Photographers at Soundwave, Adelade 2011 by Andrew Stace)
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As the 2011 Big Day Out tour wound itself across the country this year – it ended in Perth on Sunday, Feb 6 – hundreds of professional photographers snapped portraits of an artist line-up that included Californian hard rock act Tool and German industrial metal troupe Rammstein.
These two bands were the heaviest-hitting acts on the tour. Yet their photo release forms also revealed that they were the bands most protective of their image. "All copyrights and other intellectual property rights shall be entirely Artist's property," read a line from Tool's contract, which photographers wishing to capture the band from the front-of-stage photo pit were required to sign. "[The photographer] is prohibited from placing the photos in the so-called online media, and/or distributing them using these media," stated Rammstein's decidedly archaic contract, which concludes with an apparently self-defeating line about being subject to the laws of Germany.
Such rights-grabbing statements are nothing new in the live entertainment business, where artists' images and 'trade secrets' have always been fiercely protected. Eddie Van Halen was known to turn his back to the audience when performing innovative electric guitar solos before Van Halen were signed, so as to prevent both his newly-discovered techniques from being viewed by rival guitarists - or being captured by keen-eyed music photographers.
Smashing Pumpkins - Brisbane, 2011
Recent Australian tours by popular rock acts like
The Smashing Pumpkins and
Muse have demanded that photographers shoot only from the sound desk; Muse, too, issued a contract which states that photographers
“hereby assign full title guarantee the entire worldwide right, title and interest in and to the Photographs, including the copyright therein”. Which means that if Muse (or, more likely, their management or lawyers) happen to be browsing your live photo portfolio and they're particularly taken by a picture of bassist Christopher Wolstenholme's fetching red suit, they can request the high resolution image file - or negative - free of charge. You have no power to negotiate because you're bound by a contract.
Why, then, in an age where the vast majority of gig-goers carry web-ready media devices in their pockets, are bands still so insistent on attempting to shield themselves from the close scrutiny of professional cameras? And are these contracts even legally binding, or simply attempts to scare newbie photographers into surrendering their hard work - with zero additional compensation on top of their publication's one-time print fees?
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A British-born, Australia-based man named
Tony Mott has been photographing musicians across the world for over 30 years. He's been the Big Day Out's official photographer since the festival's 1992 inception; his work has appeared on the cover of just about every music and news-related publication imaginable. When it comes to photo contracts, however, his approach is blunt: "I don't read them, and I never do."
"I used to have a music lawyer girlfriend,” says Mott, “Who told me that if you sign a contract, for it to be a legal document: 1), they must give you a copy; 2) they must give you time to sign it, whilst you consult your lawyer, and 3), money must change hands. You can't give copyright away; that's just illegal. She told me to sign it, and time it. It's called 'signed under duress', because if a band goes on stage at 8.15pm and they give you a legal document at 7.45pm, how likely is it that, as a music photographer, you're going to be accompanied by your lawyer?”
In Mott’s experience in the rock and roll photography game, he’s never had any legal trouble as a result of signing contracts in this effectively sight-unseen manner. “Not one single person has come back to me and told me that I've been doing the wrong thing. I sell [photos] to music magazines. That's it. That's all anyone's doing with them. I mean, if you started making posters and merchandise [with your photos of the artist], I think you would get into trouble."
I enquire whether the Big Day Out team understand their official photographer’s position on signing photo releases. "No, not really," he laughs. "To be honest, it never gets discussed. I don't think the Big Day Out people have ever asked me about it. This year was the first time I was asked to sign anything at the Big Day Out, and it was for Tool, Rammstein, and Grinderman. I've never signed contracts at the Big Day Out in the past; this year I did, and it made no difference to me whatsoever. I just signed them and moved on. I didn't read two of them, because I physically couldn't read them. I was asked to sign them in the pit, in the pitch-darkness, without my glasses, and they didn't give me a copy. So I have no idea what they said.”
“That's not bullshitting," he clarifies. "That's not exaggerating. That's the fact. I literally signed them, shot [the bands], and moved on. So my argument now would be - not that I really care - but: how can I infringe my agreement, when I don't know when the agreement was? If they want me to abide by their rules, wouldn't they send me an agreement?" ("All I'm saying to you is my opinion," Mott later says. "I'm not a lawyer, and I don't actually know what I'm talking about. I went under the presumption that what I just said to you was true, but that's just me talking because I'm not a lawyer, and I don't know the legal status.")
"I didn't sign either contract," says Brisbane-based photographer
Justin Edwards, who was covering the festival for
TheVine.com.au, in reference to the Tool and Rammstein photo contracts. "The Rammstein one I was debating about doing, because you still own the photos, but they want to use them on their website. And you think, 'Well, you're second on the bill, and you're getting paid an awful lot of money; I don't really want to give you something for nothing.' But it wasn't as bad as Tool's contract. There's no way I'd sign that."
"Some people, like Tony Mott, say that if they don't get a copy and they don't have a lawyer present, then it's not a valid contract," he continues, "but I've always taken [the view] that it is, because you don't need that for a contract to be legally binding. It's a matter of putting your name to something that, in the future, might come back to you. Especially now, because they're asking for more information [on the contracts]. You used to just sign it, put your name and who you were photographing for. Now they want your email address and phone number. I don't do [music photography] for money, but it's the principle of the thing. It's almost like it's them, as an artist, being disrespectful to you. And you think, 'Screw you; if that's your attitude, I'm not interested in photographing you.’"
Grinderman - Big Day Out, Brisbane 2011
According to
Matt Palmer, another Brisbane-based photographer, "You get treated like a bit of a bastard with these contracts. The reality is, you're there as a fan, and as a photographer, you're trying to take the best photos you can of a band. So it's a bit weak to be presented with these contracts when you're actually trying to help them out."
Sydney-based photographer
Daniel Boud notes that two bands that don’t treat photographers like bastards, however, are also two of the biggest in the world: AC/DC and U2. Both acts toured Australia within the last 12 months. "It says a lot that, for two of the bands whose fans are so rabid that you might actually be able to sell the photos for commercial gain, neither act even bothers with having photos contracts,” says Boud. “They're also two artists that, when you shoot them, their tour managers and publicists are incredibly nice and welcoming to photographers. They thanked us for coming. Whereas a lot of the time, concert promoters make you feel like you're a pain in the arse to them."
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I outline Mott's apathetic approach to photo release forms to Julian Hewitt of Melbourne-based firm
Media Arts Lawyers, before asking whether it sounds legally valid. "No," laughs Hewitt in response. "I think it's probably a stretch to say it's signed under duress, because it's a commercial agreement. Notwithstanding that clearly, these big bands have the weight of bargaining power, because they can - and do - say 'you're not getting a photo pass unless you agree to our terms'. The idea of duress, or unconscionability, is about fairness. In this situation, where it's a commercial agreement, unless someone's got a gun to your head, it's pretty hard to show that there was duress. It's not like something horrible's going to happen to him if he doesn't shoot Rammstein."
"By and large, even if you're not given a copy of an agreement,” continues Hewitt, “If you've signed it and shown that you intend to be bound by the terms of that agreement, that can usually be held up as evidence that these were the terms to which you agreed.” He admits, however, that the reality may be that in practice, these contracts are not enforced, which simply encourages complacency on the photographers’ behalf. “From a purely legal perspective, if you signed a release, you would be bound by its terms."
Tool - Big Day Out, Sydney 2011
Tool's contract has a clause stating that permission is granted for one-time use in an editorial publication. Does this mean that photographers who upload their photos to personal blogs, their Facebook, or Flickr accounts are in breach of the contract? "That's probably right," says Hewitt. "One of the problems in enforcing contracts can be what the terms actually mean. These are one page agreements that aren't very explicit in their terms. In this case, they're saying 'you may only use the photos once', but there is some ambiguity over what that means. It depends on what type of publication you're shooting for; if it's online, then that one-time use will be perpetual; if it's a print publication, it'll be print that day, or week, and that's the ‘one use’."
This opens up another grey area, though: if the Sydney Morning Herald prints an image in Saturday's newspaper, then uses the same image on their website, does that count as two uses? Hewitt says that the SMH could argue that the ‘one use' doesn't specify one format. So using the same image across two mediums could potentially be covered within that single 'use'. "But I'd certainly say that, strictly speaking, the photographer probably couldn't also use it on their own blog. Technically. I mean, the thing about law is that there's the 'letter of the law', and then there's the 'spirit of the law', which is the way it's enforced. Would Tool come and hunt down Tony Mott for publishing a photo on his website? Probably not."
Rammstein's contract states that "this agreement is subject to the laws of Germany," and that "the place of jurisdiction is Berlin, Germany". Despite the confusing wording, Hewitt confirms that the contract is still valid in Australia. "Jurisdiction clauses are the parties agreeing that, if they have a dispute over it, they're going to argue the dispute in a particular jurisdiction,” he explains. “In this case, it's Germany, because that's obviously where Rammstein's management and lawyers are based, and if they have to enforce the agreement, they'd much rather require that person come to Germany to hear the matter, than to come out to Australia and incur all those costs. Practically speaking,” he says “If you're an Australian being sued by a German, getting a judgment from a German court enforced in Australia is very hard to do. Unless it's something that's worth a lot a huge sum of money." So probably not a matter concerning a few live music photos, then.
I draw Hewitt's attention to the line which prohibits photographers from placing the photos "in the so-called online media, (in particularly the Internet, telephone services and/or similar installations), and/or distributing them using these media". I note that several websites, including SMH, TheVine.com.au, and TheMusicNetwork.com.au have published photos of Rammstein. Are they in breach of the contract?
"Potentially,” says Hewitt. “It depends where they got the photos from. Part of [Rammstein’s] shtick - which is a bit old-school; it’s more of an '80s or '90s approach to image control - might be that they're very protective of how the photographs get out, and how they're disseminated.”
Hewitt concludes that “a lot of acts take the opposite view, and say 'We want to be engaged with people; we want people taking photos and talking about them, and sharing content in a 'web 2.0' kind of way.’ [Their view is that] it'd be madness for us - and counter-productive - to try and restrict that flow.'”
Despite requests, the Big Day Out’s publicity team refused to comment on the matter.
Andrew McMillen
(Main pic: Slash vs Photographers at Soundwave, Adelade 2011 by Andrew Stace)