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Intellectual property fights in photography disheartening

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tcg550 said:
tcg550 said:
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Why does the photographer get to use the image of the band and the clothing to promote his magazine without payment to the band or the clothing designer?
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If the image is being used in an editorial context, permission may not be needed.

Suppose you are at a local public park, sitting on a park bench, minding your own business. In the USA, I don't need your permission to take your photo. Furthermore I don't need your permission to profit from the image by selling a print as Art, or by selling the print to a local newspaper. Your permission is not necessary in order to run the photo on the front page of the newspaper alongside an article on city's plans to remove the benches.

On the other hand, your permission would be needed to use the photo in an advertisement for the company that makes those benches.

The photographer generally owns the copyright to the image. This is not an affirmative right that lets him do whatever he wants with the image. All copyright ownership does is allow you to place certain restrictions on the reproduction/copying of the image.

If there are recognizable people in the image, they generally have various rights to their likeness, and can place certain restrictions on the use of the image. These rights are independent of copyright law, and even apply to images that are in the public domain (i.e. no copyright).

If there are trademarks in the image, then the trademark owner may also place certain restrictions on the image.

None of these rights are absolute. A copyrighted image can be copied without permission if the copying meets the "fair use" criteria. A person's control of their likeness generally is limited to preventing it from being used to promote goods and/or services, being used on a product, or used to defame the person. Trademark owners can prevent you from using their trademark in a way that might lead the pubic into thinking that this is an authorized use.

In addition to the above, their may be contractual limitations. When you buy a concert ticket, you agree to various terms. These terms may limit photography at the concert and/or what you can do with those images.

All in all, there may be multiple people who can place restrictions on an image. Any usage of the image must be careful not to violate any of their rights. The reason we get a model release is that it constitutes permission to use the model's likeness in the released manner.
 
Michael Fryd said:
tcg550 said:
Michael Fryd said:
...
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Gathering followers is not profiting?
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In the USA, there is a difference between a person building a following because they like having followers, and a person who is using their online presence for business purposes (i.e. selling advertising, promoting a photography business, etc.).

A soccer mom can post to instagram photos of strangers she took in a park. This is not her business, she is just sharing some personal photos she took.

Someone who has a photography business has to be more careful. If you are posting the photos to instagram in order to promote/advertise your photography business, you may very well need permission from people in the image.

Simply trying to get more followers is not necessarily a business purpose.
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The photographer in question also owns a magazine and he uses those photos in his magazine.

He is profiting.
 
tcg550 said:
Michael Fryd said:
tcg550 said:
tcg550 said:
...
Click to expand...
Gathering followers is not profiting?
Click to expand...
In the USA, there is a difference between a person building a following because they like having followers, and a person who is using their online presence for business purposes (i.e. selling advertising, promoting a photography business, etc.).

A soccer mom can post to instagram photos of strangers she took in a park. This is not her business, she is just sharing some personal photos she took.

Someone who has a photography business has to be more careful. If you are posting the photos to instagram in order to promote/advertise your photography business, you may very well need permission from people in the image.

Simply trying to get more followers is not necessarily a business purpose.
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The photographer in question also owns a magazine and he uses those photos in his magazine.

He is profiting.
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Yes. He is profiting. In the USA that is not the criteria for whether or not you need permission.

In the USA the issue is not whether I am making money from your likeness. The issue is whether or not I am using your likeness to endorse/promote products and/or services.

If the image is being used in a magazine alongside an article about the band, then in the USA you probably would not need the bands permission. Even if the photographer made a lot of money licensing the image to the magazine, and the magazine made a lot of money from that issue.

Suppose you are sitting on a bench in a public park. I take a photo of you without your permission.

I also publish a magazine targeting managers that work in various local Parks & Recreation departments across the country. Suppose I charge $10 per year for a subscription, and make significant additional revenue from advertising sales.

I don't need your permission to use that photo alongside an article on park benches. Even though I make money from the magazine, and money from subscriptions, the context of that particular usage was editorial.

I would need your permission to use that photo in an advertisement for park benches, as that's promoting a product.
 
Michael Fryd said:
tcg550 said:
Michael Fryd said:
tcg550 said:
Michael Fryd said:
...
Click to expand...
Gathering followers is not profiting?
Click to expand...
In the USA, there is a difference between a person building a following because they like having followers, and a person who is using their online presence for business purposes (i.e. selling advertising, promoting a photography business, etc.).

A soccer mom can post to instagram photos of strangers she took in a park. This is not her business, she is just sharing some personal photos she took.

Someone who has a photography business has to be more careful. If you are posting the photos to instagram in order to promote/advertise your photography business, you may very well need permission from people in the image.

Simply trying to get more followers is not necessarily a business purpose.
Click to expand...
The photographer in question also owns a magazine and he uses those photos in his magazine.

He is profiting.
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Yes. He is profiting. In the USA that is not the criteria for whether or not you need permission.

In the USA the issue is not whether I am making money from your likeness. The issue is whether or not I am using your likeness to endorse/promote products and/or services.

If the image is being used in a magazine alongside an article about the band, then in the USA you probably would not need the bands permission. Even if the photographer made a lot of money licensing the image to the magazine, and the magazine made a lot of money from that issue.

Suppose you are sitting on a bench in a public park. I take a photo of you without your permission.

I also publish a magazine targeting managers that work in various local Parks & Recreation departments across the country. Suppose I charge $10 per year for a subscription, and make significant additional revenue from advertising sales.

I don't need your permission to use that photo alongside an article on park benches. Even though I make money from the magazine, and money from subscriptions, the context of that particular usage was editorial.

I would need your permission to use that photo in an advertisement for park benches, as that's promoting a product.
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I understand the law, as I said before I'm commenting on the attitude that it does not work both ways.

In other words, law aside, both parties bring value to situations like this but some photographers think they are the only ones bringing value.

Please don't quote the law again, I get the law, I'm giving my opinion.
 
tcg550 said:
The Davinator said:
DiffractionLtd said:
fishy wishy said:
It's really simple: the photographer was an a**e for sending a sarcastic smart-ass threat to a clothing company when he didn't even know what relationship they had with the band. To them he looked like an interloper who had taken a fan pic and then demanded money. Bad form.

I say "not surprised". How should they intuitively know somebody who attended their friend's concert had a right to money from them?
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Interesting number of sides to this coin.
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Not really...just one side. A clothing company stole the image. When the photographer asked for a payment via donation, he was attacked and told he would be blacklisted. There was nothing threatening or sarcastic.
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Why does the photographer get to use the image of the band and the clothing to promote his magazine without payment to the band or the clothing designer?
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Exactly, how stupid if you think any other way, delusional comes to mind.

Don

--
Olympus EM5, EM5mk2 my toys. EM1mk2
http://www.dpreview.com/galleries/9412035244
past toys. k100d, k10d,k7,fz5,fz150,500uz,canon G9, Olympus xz1
 
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tcg550 said:
The Davinator said:
tcg550 said:
lilBuddha said:
tcg550 said:
These are always amusing, it's ok for the photographer to profit off their performance but heaven help the performer if they profit of the photographer.

I agree that using the image without permission or compensation is wrong but it works both ways.
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Really? You obviously did not read the article.
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What did I miss?

The photographer is benefiting from the photo he took of the band. Yes or No?

Did the photographer have permission to use the photos to promote himself and make money?

I'm not disagreeing that he owns the copyright. I'm also not disagreeing that the clothing company should not have used the photos without an agreement with the photographer.

I just find it interesting that the photographer is allowed to profit off the bands, the work of the promoters, etc... and then complain when the same is done with his work.

Did I miss the part of the article where he had permission to profit?
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He lwns copyright to the image. That is the story. And yes, he did have permission to make funds from the work...unless you think photographers work for free exposure...
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I did not say he didn't own the copyright.

Where in that article did it say he had permission?
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It didn't say that specifically in the article, that detail was not included but there are a number of factors here that would suggest that he did have permission, even if only implied.

1. The club does not ban photography

2. The band had previously not banned photography

3. The photographer had excellent access.

4. Through the communication provided, it appeared the band was thrilled with his photo until they were told it can only be used in a restricted way.

That being said, even if he didn't break any club rules, similar to paparazzi, he doesn't need permission.
 
Donald B said:
tcg550 said:
The Davinator said:
DiffractionLtd said:
fishy wishy said:
It's really simple: the photographer was an a**e for sending a sarcastic smart-ass threat to a clothing company when he didn't even know what relationship they had with the band. To them he looked like an interloper who had taken a fan pic and then demanded money. Bad form.

I say "not surprised". How should they intuitively know somebody who attended their friend's concert had a right to money from them?
Click to expand...
Interesting number of sides to this coin.
Click to expand...
Not really...just one side. A clothing company stole the image. When the photographer asked for a payment via donation, he was attacked and told he would be blacklisted. There was nothing threatening or sarcastic.
Click to expand...
Why does the photographer get to use the image of the band and the clothing to promote his magazine without payment to the band or the clothing designer?
Click to expand...
Exactly, how stupid if you think any other way, delusional comes to mind.

Don
Click to expand...
Sure, why should the LA Times be able to use a picture of the Dodgers on the cover? It promotes their newspaper! </sarcasm>

I am surprised we are having this conversation.
 
tcg550 said:
Wheatfield7 said:
tcg550 said:
lilBuddha said:
tcg550 said:
These are always amusing, it's ok for the photographer to profit off their performance but heaven help the performer if they profit of the photographer.

I agree that using the image without permission or compensation is wrong but it works both ways.
Click to expand...
Really? You obviously did not read the article.
Click to expand...
What did I miss?

The photographer is benefiting from the photo he took of the band. Yes or No?
Click to expand...
In this case no.
tcg550 said:
Did the photographer have permission to use the photos to promote himself and make money?
Click to expand...
In this case he isn't benefiting, and as always, conflation us a dangerous thing
tcg550 said:
I'm not disagreeing that he owns the copyright. I'm also not disagreeing that the clothing company should not have used the photos without an agreement with the photographer.

I just find it interesting that the photographer is allowed to profit off the bands, the work of the promoters, etc... and then complain when the same is done with his work.
Click to expand...
How was he profiting again?
tcg550 said:
Did I miss the part of the article where he had permission to profit?
Click to expand...
I think you missed the part of the article that indicated he wasn't profiting.
Click to expand...
Gathering followers is not profiting?
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Are they paying to follow?
 
Wheatfield7 said:
tcg550 said:
Wheatfield7 said:
tcg550 said:
lilBuddha said:
tcg550 said:
These are always amusing, it's ok for the photographer to profit off their performance but heaven help the performer if they profit of the photographer.

I agree that using the image without permission or compensation is wrong but it works both ways.
Click to expand...
Really? You obviously did not read the article.
Click to expand...
What did I miss?

The photographer is benefiting from the photo he took of the band. Yes or No?
Click to expand...
In this case no.
Member said:
Did the photographer have permission to use the photos to promote himself and make money?
Click to expand...
In this case he isn't benefiting, and as always, conflation us a dangerous thing
Member said:
I'm not disagreeing that he owns the copyright. I'm also not disagreeing that the clothing company should not have used the photos without an agreement with the photographer.

I just find it interesting that the photographer is allowed to profit off the bands, the work of the promoters, etc... and then complain when the same is done with his work.
Click to expand...
How was he profiting again?
Member said:
Did I miss the part of the article where he had permission to profit?
Click to expand...
I think you missed the part of the article that indicated he wasn't profiting.
Click to expand...
Gathering followers is not profiting?
Click to expand...
Are they paying to follow?
Click to expand...
Maybe this forum is filled with old timers that don't understand the value of social media.
 
Mackiesback said:
Donald B said:
tcg550 said:
The Davinator said:
DiffractionLtd said:
fishy wishy said:
It's really simple: the photographer was an a**e for sending a sarcastic smart-ass threat to a clothing company when he didn't even know what relationship they had with the band. To them he looked like an interloper who had taken a fan pic and then demanded money. Bad form.

I say "not surprised". How should they intuitively know somebody who attended their friend's concert had a right to money from them?
Click to expand...
Interesting number of sides to this coin.
Click to expand...
Not really...just one side. A clothing company stole the image. When the photographer asked for a payment via donation, he was attacked and told he would be blacklisted. There was nothing threatening or sarcastic.
Click to expand...
Why does the photographer get to use the image of the band and the clothing to promote his magazine without payment to the band or the clothing designer?
Click to expand...
Exactly, how stupid if you think any other way, delusional comes to mind.

Don
Click to expand...
Sure, why should the LA Times be able to use a picture of the Dodgers on the cover? It promotes their newspaper! </sarcasm>

I am surprised we are having this conversation.
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But the photographer only got $20 not $1000 that the photographer thought he deserved :-)

Don
 
tcg550 said:
Aaron801 said:
tcg550 said:
  1. tcg550 wrote:
Aaron801 said:
tcg550 said:
Aaron801 said:
lilBuddha said:
Levantinian said:
DiffractionLtd said:
https://petapixel.com/2018/12/26/how-i-got-banned-from-photographing-the-band-arch-enemy/
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It would have been nice if the OP gave us some kind of synopsys of the reasons for his discontent, instead of only a link to a lengthy web-page.

However, after reading it, it appears to me to be quite naive for any photographer to attempt to enforce some "property rights" over his recording of a commercial performance, without any prior written agreement with the performer(s).
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Incorrect. In most places, the maker of an image owns that image and its copyright from the moment the image is created. It is asinine to be in an artistic business, like music, and not understand that art is commerce. The band explicitly doesn't allow others to use its music, stealing the image is no different.

The default is image maker = controller of use. This is why, as is mentioned in the article, some acts use a legal framework (a contract) to strip those innate rights from the creator.

A serious discussion of the business aspects of photography is dubious on a site largely populated by hobbiests who would wet themselves if their images were so used.
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No doubt... Not only should the band realize how this stuff works, but their hypocritical attitude towards photographers is made even more egregious by the fact that they're such bullies about it and won't concede to the fact that they may have made a mistake.
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His image has value or more value because of who is in the image. He is profiting of their image.

I get he owns the copyright but it's the band's image and the clothing designer's work that gives it value.

Doesn't that count? Did he have permission to profit off their intellectual property?
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With all dues respect, your reasoning is ridicules! By that logic than anyone who photographs a product or a celebrity ought to do so for free (and there wouldn't be such a thing as professional concert, fashion or product photographers!) The fact is that if you're not getting paid, whatever you're photographing, be it a band or a person wearing a fashion item, it's really that party which is getting the free promotion, not the photographer. If the photographer is a fan then they are doing as a tribute to the band and the least that they can ask is to not be taken advantage of...
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I never said anyone should do anything for free.

I'm commenting on the attitude of both sides. Each side thinks they are bringing value to a the situation yet neither side will acknowledge the other side's contribution to the value.
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Only one side is getting value that can be monetized though. The band and clothing company could expect to pay for photgrapghy that is used to promote their respective products. A photographer on the other hand isn't going to be expected to have to pay for the privilege of shooting a person or a thing, particularly when the party who is being photographed can turn around and make money from it.

One could argue that an amature photographer gets some sort of "value" from whatever it is that they're photographing, but isn't anything like monetary value and that's what we're talking about here...
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This guy is no amateur photographer and he used the image of the band to promote his magazine.

He gets to do that for free
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Yes, he does. The law is in his favor and beyond that it's a completely eqitable situation as the band is getting free promition from his photography so the very least that he should be entitled to, if he's not getting paid and subitting the rights of the work to a client, is to be free to use the images for his own promotion.

The point of contention with him is not with the band that he photographed, but a third party, the clothing company, who never asked permission or offered payment for images that they used. He offered the images to be used by the band for promotion, but the clothing company stole the images and then got nasty about it when they got called out about it... It doesn't seem that difficult to determine which party is in the wrong...

--
my flickr:
www.flickr.com/photos/128435329@N08/
 
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Donald B said:
tcg550 said:
The Davinator said:
DiffractionLtd said:
fishy wishy said:
It's really simple: the photographer was an a**e for sending a sarcastic smart-ass threat to a clothing company when he didn't even know what relationship they had with the band. To them he looked like an interloper who had taken a fan pic and then demanded money. Bad form.

I say "not surprised". How should they intuitively know somebody who attended their friend's concert had a right to money from them?
Click to expand...
Interesting number of sides to this coin.
Click to expand...
Not really...just one side. A clothing company stole the image. When the photographer asked for a payment via donation, he was attacked and told he would be blacklisted. There was nothing threatening or sarcastic.
Click to expand...
Why does the photographer get to use the image of the band and the clothing to promote his magazine without payment to the band or the clothing designer?
Click to expand...
Exactly, how stupid if you think any other way, delusional comes to mind.
Click to expand...
The exchange between the band and the photographer could be seen as equal. This is not true of the clothing company.

the band get good images for their promotion, the photographer gets good images of a subject of interest to his readers.

The clothing company gets free images of their clothing being worn, but the photographer gets nothing from them

This is not rocket surgery.
 
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PerTulip said:
I also suspect the photograher had a press pass and the whole idea of taking pictures at a concert is to sell them to media...
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I rather doubt it.

In this day and age, every press accreditation application form for similar events includes some stipulation that photographer can sell the material for editorial use, but that any commecial/advertising use requires additional arrangement between the photographer and the venue and/or performer. If the OP had a press pass, he would probably have a copy of what he agreed to in order to get it, and would alert the performer(s) of the third party misappropriation, instead of opprtunistically attempting to profit from the incident.
 
lilBuddha said:
Donald B said:
tcg550 said:
The Davinator said:
DiffractionLtd said:
fishy wishy said:
It's really simple: the photographer was an a**e for sending a sarcastic smart-ass threat to a clothing company when he didn't even know what relationship they had with the band. To them he looked like an interloper who had taken a fan pic and then demanded money. Bad form.

I say "not surprised". How should they intuitively know somebody who attended their friend's concert had a right to money from them?
Click to expand...
Interesting number of sides to this coin.
Click to expand...
Not really...just one side. A clothing company stole the image. When the photographer asked for a payment via donation, he was attacked and told he would be blacklisted. There was nothing threatening or sarcastic.
Click to expand...
Why does the photographer get to use the image of the band and the clothing to promote his magazine without payment to the band or the clothing designer?
Click to expand...
Exactly, how stupid if you think any other way, delusional comes to mind.
Click to expand...
The exchange between the band and the photographer could be seen as equal. This is not true of the clothing company.

the band get good images for their promotion, the photographer gets good images of a subject of interest to his readers.

The clothing company gets free images of their clothing being worn, but the photographer gets nothing from them

This is not rocket surgery.
Click to expand...
Yes it is because he got the boot from both :-)

Don
 
Mackiesback said:
Donald B said:
tcg550 said:
The Davinator said:
DiffractionLtd said:
fishy wishy said:
It's really simple: the photographer was an a**e for sending a sarcastic smart-ass threat to a clothing company when he didn't even know what relationship they had with the band. To them he looked like an interloper who had taken a fan pic and then demanded money. Bad form.

I say "not surprised". How should they intuitively know somebody who attended their friend's concert had a right to money from them?
Click to expand...
Interesting number of sides to this coin.
Click to expand...
Not really...just one side. A clothing company stole the image. When the photographer asked for a payment via donation, he was attacked and told he would be blacklisted. There was nothing threatening or sarcastic.
Click to expand...
Why does the photographer get to use the image of the band and the clothing to promote his magazine without payment to the band or the clothing designer?
Click to expand...
Exactly, how stupid if you think any other way, delusional comes to mind.

Don
Click to expand...
Sure, why should the LA Times be able to use a picture of the Dodgers on the cover? It promotes their newspaper! </sarcasm>

I am surprised we are having this conversation.
Click to expand...
If someone where to turn around and make a law saying "anything appearing in a publication meant for profit must be compensated for" it would ruin photography. If people watch TV, you see evidence of something like this happening. Even syndicated television shows sometimes show the appearance of fuzzed-out product signs, building names, when the original broadcast did not have it. Does not bode well for the future. There should be some kind of "fair use" clause that would at least cover things that happen to show up in photos because they are visible from public places.
 
My view would be if they are happy to support someone infringing your copyright then they will be happy with anyone and everyone getting free downloads of their material. Personally it's not my thing, but if it was I would support them by getting as many free downloads as I could. Anarchists my a*se, they are capitalists using the cloak of anarchy to help them make a profit.
 
StillLife said:
My view would be if they are happy to support someone infringing your copyright then they will be happy with anyone and everyone getting free downloads of their material. Personally it's not my thing, but if it was I would support them by getting as many free downloads as I could. Anarchists my a*se, they are capitalists using the cloak of anarchy to help them make a profit.
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Reminds me of the film "Woodstock" where they ask this musician what he thought of the people jumping the fence and not paying their way into the festival. At the time (1969) the interviewer probably thought the answer he'd get was "let them all in!" What the musician basically said was they were idiots and nothing was free.
 
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tcg550 said:
Wheatfield7 said:
tcg550 said:
Wheatfield7 said:
tcg550 said:
lilBuddha said:
tcg550 said:
These are always amusing, it's ok for the photographer to profit off their performance but heaven help the performer if they profit of the photographer.

I agree that using the image without permission or compensation is wrong but it works both ways.
Click to expand...
Really? You obviously did not read the article.
Click to expand...
What did I miss?

The photographer is benefiting from the photo he took of the band. Yes or No?
Click to expand...
In this case no.
tcg550 said:
Did the photographer have permission to use the photos to promote himself and make money?
Click to expand...
In this case he isn't benefiting, and as always, conflation us a dangerous thing
tcg550 said:
I'm not disagreeing that he owns the copyright. I'm also not disagreeing that the clothing company should not have used the photos without an agreement with the photographer.

I just find it interesting that the photographer is allowed to profit off the bands, the work of the promoters, etc... and then complain when the same is done with his work.
Click to expand...
How was he profiting again?
tcg550 said:
Did I miss the part of the article where he had permission to profit?
Click to expand...
I think you missed the part of the article that indicated he wasn't profiting.
Click to expand...
Gathering followers is not profiting?
Click to expand...
Are they paying to follow?
Click to expand...
Maybe this forum is filled with old timers that don't understand the value of social media.
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Or maybe some people see currency where there is none. Profit means money in my pocket. Followers on social media are feeding a person's ego, not their wallet.
 
Wheatfield7 said:
tcg550 said:
Member said:
Member said:
...
Click to expand...
Click to expand...
Maybe this forum is filled with old timers that don't understand the value of social media.
Click to expand...
Or maybe some people see currency where there is none. Profit means money in my pocket. Followers on social media are feeding a person's ego, not their wallet.
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There is a difference between "profit" and "value".

Many people find value in approval from their peers. However peer approval is not necessarily profitable.

A person may be happier with an increased social media following. Whether or not they turn that into something "profitable" is a different matter.

But the question here is not one of "profit" or "value". The question was whether the photographer had a moral, ethical, or legal obligation to compensate the band for using a photo of them in his for-profit magazine?

Morally/ethically, we tend to compensate someone when we take something from them, or they are doing something for us. We don't compensate someone simply because we profit from their actions.

For instance, I read a newspaper story this morning about a man attempting to cross the Atlantic Ocean in a wooden barrel. The newspaper is profiting from the man because the story helps sell newspaper. The reporter is profiting from the story because he is paid to write interesting stories. The man in the barrel is not profiting. He doesn't make money by crossing the Atlantic, he does not make money from the story, nor does he earn more money from the publicity.

The newspaper has no moral or legal obligation to compensate the man for basing a story on him.

If I owned a magazine, I would not have an obligation to compensate the man for running a story about him. If I published the story online, and attempted to gain followers, charged a subscription fee and/or sold advertising, the situation does not change.

If the story included a photo of the man, this would not alter the issue. I still would have no obligation to compensate him.

This is a similar situation to a for-profit magazine writing an article about a band. The fact that they are making money, or profiting, from the article does not give them a moral obligation to compensate the band. Including a photo of the band does not change this.

====

On the other hand, if the photographer agreed to something else as a condition of a concert ticket purchase, then we have to consider those contractual terms.
 
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