Hello everyone! After a brief break to celebrate the holiday we have returned with the latest installment in our ongoing effort to inform aspiring music photographers about the realities of life in the industry. This column is dedicated to photo releases and how they may or may not impact your interest in working with certain artists. There is a lot to read, but professional photographer Nick Karp has done a great job of breaking everything down into easy to understand chunks, each with real world example.
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This week, something happened that is not necessarily uncommon in concert photography, but something I neglected to think about. I was asked to sign a photo release to shoot a show. What is a photo release? In music photography, it’s a contract that a band sends the media that indicates some rules and regulations.
What they state:
All photo releases are different and they can vary on how strict they are. Below are a list of different type of contracts I’ve been sent, with my opinion on them.
Editorial Release:
Usually this release indicates that your photos can only be used for the publication you are shooting for. This is the least restrictive of all of the releases, and most of the time is only implicated to prevent a photographer from selling the image for non official merchandise. You still retain copyright of the photos and most of the time management will allow you to use the photos for your portfolio and other publications (magazines, newspapers, etc.)
Example: This letter serves to confirm that you, (Photographer) , may photograph (first five songs, no flash) of Matt and Kim on the condition that any material arising from the photographic session to be held on (Date) at (Venue) ______________________________, is used for editorial use, in the following publication(s): ________________________________________. The license hereby granted to you to photograph the artist is limited to the above grant only and NO right to use the photos for commercial purposes (e.g., for use as posters, calendars, T-shirts, prints, etc.) either to be sold, to be distributed free or to be otherwise exploited in any manner whatsoever unless prior permission has been obtained from Matt and Kim and their management.
Pre Approval Release:
This release usually indicates that the artist must approve all photos prior to them being published. Some bigger artists have this release to rely that their image isn’t tarnished, but weirdly enough a lot of older bands are starting to have this in their release. Maybe they want to hide a double chin or some eye wrinkles. I have not signed a release like this and I’m indifferent about it. My job as a photographer is to make my subject look as good as possible, and I don’t think I need someone telling me that my photo does not meet their imaginary criteria.
Example: Photographer hereby acknowledges and agrees that the Photographs to be used hereunder are subject to the prior approval of Cheap Trick.
Injury Clause:
An artist doesn’t want to take responsibility for you being an idiot in the photo pit. Protect your gear at all time. It shouldn’t be the artist’s responsibility anyway (unless they assault you and then that becomes a whole different issue in of itself.)
Example: You acknowledge that you are performing your services at your own risk and voluntarily assume such risks and accept full responsibility and liability (including indirect liability) for your own safety. You and [Periodical/news crew] hereby forever release and discharge us from any and all claims, demands, damages, or causes of action which you may have against us for all personal injuries, known or unknown, and damage to your property, caused by or arising out of your services.
Artist using photos release:
This isn’t a rights grab release (discussed below.) This release indicates that I still own my photos, however, the band are allowed to do what they please without compensation including but not limited to; Posting on social networking, using photos for merchandise, and basically whatever they want. I will not sign this. You should not sign this. This is exploitation of your intellectual property.
Example: In addition, in consideration for the rights being granted to Photographer hereunder, Photographer agrees to provide, at no charge, to Cheap Trick Unlimited, duplicate negatives and/or transparencies (as designated by Cheap Trick Unlimited of the Photograph(s)). Cheap Trick Unlimited shall have the right to use the Photograph(s) for any and all commercial and non-commercial purposes whatsoever relating to Cheap Trick and Cheap Trick’s activities and Cheap Trick Unlimited shall have no obligation to make any payment to Photographer, the Publication or any other third party in connection with any of such uses.
Rights Grab:
What is a rights grab? To keep it simple, it’s a release that indicates that after you take photos of an artist, your work is not owned by you, but by the management company/band. I’ve never sign this type of release and I never will. Some artists will pay you a dollar for this which indicates a “Work for Hire”, but either way you lose the rights to your photos. They can do whatever they want with the photos. You have 0 rights to them. Hey, maybe if your nice, they’ll let you use a photo that you took for your portfolio! This is never worth signing, no matter the band.My photos are mine and will always remain mine.
Example: (a) Photographer does hereby assign unto Company all of Photographer’s right, title and interest in and to the copyright of all the Material created, and all parts and elements thereof, including all derivative rights therein, the exclusive right to register copyright in the name of Company, and any and all causes of action arising under the rights assigned by Photographer to Company under this agreement. All Materials shall, from the inception of their creation, be considered a “work made for hire” for Company within the meaning of the Copyright Act of 1976 (Title 17, U.S.C.), as amended. If it is determined that any Material does not so qualify, then such Material, and all rights therein shall be automatically assigned to Company by this Agreement.
(b) Photographer does hereby assign unto Company all of Photographer’s right, title and interest in and to any other intellectual property rights that Photographer may claim in the Material, or any part thereof.
© Photographer shall not publish the Material or use it in any other manner without Company’s prior written permission in each instance. Notwithstanding foregoing, provided that Company has approved in writing an item of Material (each an “Approved Material”), Photographer shall have the right to use the Approved Material solely in connection with a review of one or more of the Performances which review and Approved Materials shall appear solely in the Publication.
And
The worldwide copyrights(and all renewals and extensions thereof) in the Photographs are from the inception of their creation and forever thereafter owned solely by The Cult (and their designees). In the event that the undersigned Photographer, the aforesaid newspaper or magazine or any other persons or entities wish to make any use of the Photographs other than as hereinabove expressly permitted, the prior written consent of The Cult shall be required (which The Cult may withhold or grant in The Cult’s absolute discretion), failing which consent, any such use, reproduction, dissemination, publication or distribution shall constitute willful copyright infringement and subject the photographer, the newspaper or magazine, the user and all others concerned to civil and criminal liability as willful copyright infringers. The worldwide copyright in the aforesaid concert (and all elements thereof) together with all rights of reproduction, distribution, publication, and dissemination by any and all means and methods are exclusively owned and controlled by The Cult (and their designees).
How to avoid these releases:
Ask to waive the release: Tell the connection that you will only shoot the show if the release is waived. Sometimes that’s all it takes. What’s the worse they say? “No”? You have nothing to risk.
Shoot from the crowd: Many photographers do not shoot Kiss from the photo pit mainly because of Kiss’ rights grab release; however, many buy front row tickets and shoot from their seats, insuring that they own their Kiss photos and they even get to shoot the whole show! Granted, you may not be able to bring a DSLR into the venue, but there are many mirrorless cameras that can capture amazing photos (especially with their light rig.)
Sneak In: I mean, you can try right? Don’t be surprised if negative consequences result in this including being blacklisted.
Try to go through the opener: I actually got to shoot a rights grab artist without signing their release by shooting the opening acts, and never being presented a contract to sign. This won’t work all the time, but if it happened to me…
Festivals: Sometimes bands with a release will not present said release for a festival. This isn’t always the case.
Don’t: Don’t support this barbaric request. Tell the publicist why you won’t sign the release and leave as that. Maybe they’ll get the memo and waive their release for good.
All in all, I do not support signing releases. I don’t want the usage of my intellectual property to be hindered. I don’t care if my favorite band has a rights grab (they don’t), I will refuse to sign it and move-on with my life. There are plenty of bands without releases.
Nick Karp is a professional photographer and freelance music writer. He recently relocated to NYC and dyed his hair bright pink because that is the kind of thing people do in the music business.
