Photographer writes excellent letter to the band Garbage about unpaid photo use

[Mr Moose]

They said the book wouldn't make much money from sales. So why not offer every contributor a share of the profits, a royalty payment?

Then this photographer will see how just many people are willing to fork out for his oh-so-amazing pictars. If he's right and they're worth something he should make a bomb.

The right idea, but seriously have you met a single human who might buy this book? It's seriously questionable they have many 'fans' at all let alone ones who might buy their vanity project book.

 

[bi0boy]

The right idea, but seriously have you met a single human who might buy this book? It's seriously questionable they have many 'fans' at all let alone ones who might buy their vanity project book.

Then the photographer can't expect them to profit from the book. He can't have it both ways. Either his photographs are meaningful and relevant and people are interested and want to pay for a book about the subject featuring his amazing pictures, or else the subject is dull and boring and no one gives a fuck and he can't expect anyone to pay for some shitty book that happens to have a few of his old snaps inside that perhaps he made a few bob from back when the band were in the charts.

 

[Spymaster]

I'm glad he went public. Not on the basis that I think he's either wrong or right in this instance, but because business needs to learn not to blag.

But they're not blagging are they?

Either the terms of reuse were laid out in his original contract and they were asking him to waive them; or they weren't and the band was courteously asking for his permission despite not being contractually obliged to.

As you know varying of contracts and reductions or write-offs of fees happen all day, every day, in pretty much every business and all he needs to do is say no.

From the band's (again, polite and measured) response quoted by Dweller, there was never any intention to deceive and they were simply trying to keep costs down on a project unlikely to make much money. Fortunately it seems that most of the other contributors are happy with what they've already been paid, for a little more exposure, and to get credited for their work.

I'd be interested to know what Pope's original contract said about the reuse of images. If fees were specified which the band were asking to be waived, then he's overeacted and should have dealt with it professionally in private. If no terms of reuse were specified and they were legally able to reproduce the imagery without permission or payment, then he's an utter fuckwit for publicly shitting on a goodwill gesture that they weren't obliged to make, and that kind of behaviour will likely lose him other clients.

 

[chilango]

Culture, in all its forms, should be free and held in common by all.

You turn it into commodities, products and property then you've let the wolf of capital in through the door.

 

[gabi]

Jesus, just looked at his folio. Is there anyone he hasn't shot?

 

[Spymaster]

I suspect that, given Garbage's output and Ms Manson's pretensions, this book is going to be of the coffee table/art-book type, which would explain the "there's not much money in it" claim - high-quality repro is expensive.
Even so, as you say, promising contributors a smidgen of a percent on sales would be a good way of paying something for the use of contributions, and needn't be expensive, especially if you acknowledge those contributors in a dedication at the front of the book.

Given his Facebook outburst there's a fair chance that he'd have slung that back at them too.

"Why should my livelihood have to depend on your project's success ...... etc, etc?"

 

[littlebabyjesus]

But they're not blagging are they?

Either the terms of reuse were laid out in his original contract and they were asking him to waive them; or they weren't and the band was courteously asking for his permission despite not being contractually obliged to.

As you know varying of contracts and reductions or write-offs of fees happen all day, every day, in pretty much every business and all he needs to do is say no.

From the band's (again, polite and measured) response quoted by Dweller, there was never any intention to deceive and they were simply trying to keep costs down on a project unlikely to make much money. Fortunately it seems that most of the other contributors are happy with what they've already been paid, for a little more exposure, and to get credited for their work.

I'd be interested to know what Pope's original contract said about the reuse of images. If fees were specified which the band were asking to be waived, then he's overeacted and should have dealt with it professionally in private. If no terms of reuse were specified and they were legally able to reproduce the imagery without permission or payment, then he's an utter fuckwit for publicly shitting on a goodwill gesture that they weren't obliged to make, and that kind of behaviour will likely lose him other clients.

From my little experience with this, I doubt the contract was very specific, beyond giving permission for the particular use the shoot was being done for and reserving all other rights to the photographer (which is standard). I doubt it specifies reuse fees at all, although maybe such high-profile photographers can and do do that.

It wasn't an idle point I made earlier about all the famous faces plastered over his website. It's not an accident that the most famous of all - the likes of Bowie - are most prominent. I'd do that too if I were him. He's selling himself. And I fucking guarantee that if Bowie's management came calling for free reuse of an image, he wouldn't be throwing a public hissy fit.

But very often, image rights for this kind of thing are never agreed explicitly. It's assumed that reasonable fair use in things like online portfolios is ok, but technically he needs a model release from everyone in the photos for that specific use. These things are let slide very often as you'd have to be a bit of an arse to refuse permission to a photographer to use your image on their website - but technically, you can.

 

[Diamond]

He's got a valid argument but doesn't make it very well.

If correct, they have appropriated his IP before without permission or compensation - a point that he should have lead with rather than make as a postscript.

This means they have form and frames the request in a rather different light.

If someone has nicked your property of any kind before and then "politely" asks to abscond with some more, I think you have every right to take them to task, all the more so in the current context which seems to disdain copyright altogether for lazy personal convenience masked by "ideological" bullshit.

In any event, they should have made sure that they were assigned the copyright if they wanted to use it again and paid the photographer some more in the first place.

 

[ViolentPanda]

But they're not blagging are they?

Either the terms of reuse were laid out in his original contract and they were asking him to waive them; or they weren't and the band was courteously asking for his permission despite not being contractually obliged to.

And if they were asking him to waive his rights, that's what's known as "blagging",you prawn! Any extra-contractual considerations should be subject to renegotiation, not to wheedling about having "no budget" or about "rights".

 

[ViolentPanda]

The right idea, but seriously have you met a single human who might buy this book? It's seriously questionable they have many 'fans' at all let alone ones who might buy their vanity project book.

From what I recall of their heyday, they had a lot more fans in North America than they ever had over here, so there may well be a core market for it there.

 

[ViolentPanda]

Culture, in all its forms, should be free and held in common by all.

You turn it into commodities, products and property then you've let the wolf of capital in through the door.

Well yes, but for many artists some degree of commodification of their art, at least over the last thousand years or so, has been inescapable due to having to operate within the patronage system. Even today, it's a rare artist that can survive without engaging with the wolf, sadly.

 

[Spymaster]

And if they were asking him to waive his rights, that's what's known as "blagging",you prawn! Any extra-contractual considerations should be subject to renegotiation, not to wheedling about having "no budget" or about "rights".

That IS negotiation, you turbot!

'We aren't going to make much out of this, can we please use your stuff in return for crediting the work?'

As far as opening gambits go, it's not a particularly bad one.

 

[ViolentPanda]

That IS negotiation, you turbot!

'We aren't going to make much out of this, can we please use your stuff in return for crediting the work?'

Crediting the work is usually a requirement anyway, in published work, simply to avoid having your arse reamed out in court, so effectively their "negotiation" comprises of offering a "credit" that they're obligated (unless they want their arses reamed) to give anyway.
In other words, they're attempting to blag something for free, you plankton!

 

[chilango]

Well yes, but for many artists some degree of commodification of their art, at least over the last thousand years or so, has been inescapable due to having to operate within the patronage system. Even today, it's a rare artist that can survive without engaging with the wolf, sadly.

As an artist (or designer or winter or musician or whatever) you can choose. Nobody forces an artist to "try and make a living from their art" *.

Plenty don't. Out of choice. Plenty either keep their stuff for their own pleasure or choose to share freely.

...and earn a living some other way.

It's a choice I made. It's a choice I'm happy with.



*obviously there are exceptions. There are of course circumstances where the artists have no other means of earning a living available. But for the vast majority of us in the "developed world" this isn't the case. Art is generally a poor career choice financially, and one made from a position of relative privilege.

 

[littlebabyjesus]

Of course they would need to credit it, but saying that you will properly credit the work is standard form for any request of this kind. It's just being polite.

 

[littlebabyjesus]

As an artist (or designer or winter or musician or whatever) you can choose. Nobody forces an artist to "try and make a living from their art" *.

True, of course. However, this isn't really the issue in point here. Pat Pope, judging from his portfolio, has had some very nice paydays in the past from his photography. And this is his job. The issue here is a bit different, I think. It's about others making money out of your work while not paying you.

 

[Spymaster]

Ok, so we're arguing about the word "blag" which I've always considered to mean cheat.

As I say, as an opening gambit in this situation it's pretty innocuous and easily countered without publicly chucking toys about, squid dick!

 

[Diamond]

That IS negotiation, you turbot!

'We aren't going to make much out of this, can we please use your stuff in return for crediting the work?'

As far as opening gambits go, it's not a particularly bad one.

From a legal perspective, it's meaningless and possibly a bit offensive too.

The photographer has a moral right to be credited which exists independently but is related to the underlying copyright.

If someone assigns you their copyright but does not waive their moral rights, as is standard practice, they can found an action if you fail to credit them.

So what garbage are saying by way of offer to this photographer is - "give us a vaguely defined license to use your copyright for free and in exchange we will recognise your existing moral rights, which would be in effect regardless of the bargain"...

Again, from a legal perspective, it's a bullshit attempt to try and get a license for free to some work from an artist that they have apparently stolen from in the past.

The fact that others have fallen for the ruse or been in such a weak bargaining position to reckon that to be a good deal is immaterial.

 

[chilango]

Well, yeah, the whole relationship as determined by it being an economic relationship.

That's the way of the market for you.

Their rules.

Withdraw your labour and organise collectively innit?

 

[littlebabyjesus]

From a legal perspective, it's meaningless and possibly a bit offensive too.

The photographer has a moral right to be credited which exists independently but is related to the underlying copyright.

If someone assigns you their copyright but does not waive their moral rights, as is standard practice, they can found an action if you fail to credit them.

So what garbage are saying by way of offer to this photographer is - "give us a vaguely defined license to use your copyright for free and in exchange we will recognise your existing moral rights, which would be in effect regardless of the bargain"...

Again, from a legal perspective, it's a bullshit attempt to try and get a license for free to some work from an artist that they have apparently stolen from in the past.

The fact that others have fallen for the ruse or been in such a weak bargaining position to reckon that to be a good deal is immaterial.

This is hokum.

They are just being polite by saying that he will be credited properly. They're not trying to offer that as some kind of incentive. They're just asking for a free usage - there is no bullshit in that, they're pretty straightforward.

And the use without permission from before was the same band but a different management team. That was the record company. It was for a 'best of', and I wonder if it was just used as a thumbnail. If so, he's being rather precious - he wouldn't expect payment for a thumbnail usage. If it was bigger than a thumbnail, he clearly had a grievance, and could and should have written to them and demanded payment.

 

[laptop]

the bbc should be perennially in the headlines then as theu want everything done for free and pref yesterday

Permission to use this quote in a small attempt to change this situation?

 

[Pickman's model]

Permission to use this quote in a small attempt to change this situation?

yeh for my nominal £30 charge

 

[laptop]

yeh for my nominal £30 charge

Pint next time we're in adjacent postcodes?




Two pints?

 

[laptop]

This is hokum.

It is, in fact, not hokum. Unless the original contract waived the right to be identified, or the photographer failed to "assert" that right, he has that right and can (in principle) sue for use without credit.

 

[Diamond]

Yep, it's not even a proper offer as no consideration is proposed to move from garbage to the photographer as far as I can see.

It's just a request for a license disguised as an offer, which is particularly pernicious given that garbage and their representatives seem to have form in appropriating the photographer's stuff without permission.

And then you add in the "champion of artists" stuff and the whole thing looks more than a tad hypocritical...

 

[laptop]

Yep, it's not even a proper offer as no consideration is proposed to move from garbage to the photographer as far as I can see.

It's struck me after all these years that though CDPA 1988 Section 77 may be fiendish expensive to enforce, it does mean that no-one can claim that a credit is "consideration" for the purposes of establishing that there is a contract, it being a right and all.

So long, that is, that the creator "asserts" the right. The phrase "I assert my moral rights" on the invoice is standard for photoshoots, AIUI.

 

[littlebabyjesus]

It is, in fact, not hokum. Unless the original contract waived the right to be identified, or the photographer failed to "assert" that right, he has that right and can (in principle) sue for use without credit.

That's not the bit I was calling hokum on. The hokum bit is the idea that they're doing anything other than being polite by saying they'll credit him. They weren't offering a deal. They were asking for a favour.

 

[Diamond]

It's struck me after all these years that though CDPA 1988 Section 77 may be fiendish expensive to enforce, it does mean that no-one can claim that a credit is "consideration" for the purposes of establishing that there is a contract, it being a right and all.

So long, that is, that the creator "asserts" the right. The phrase "I assert my moral rights" on the invoice is standard for photoshoots, AIUI.

Ah, yes, had missed the assertion aspect, which seems a bit odd to me. I'm not sure why a statutory right should require such assertion in the first place though...

But anyways, it's a bit of an odd one because nine times out of ten, you would want to credit the author, would you not, if you were purchasing a license to a work or its copyright wholesale?

But yes, I agree, how can a promise not to infringe a statutory right constitute valuable consideration?

 

[Diamond]

Watching my nephews and nieces yesterday with their hauls of Easter chocolate it got me to thinking about a clumsy analogy this afternoon - say one of them steals a piece of chocolate from the other and scoffs it down (that being not uncommon) and the owner gets a bit shirty and then later on that same perpetrator says to the victim, please may I have some more of your chocolate but in exchange I will recognise that your endeavours have procured it...?

I doubt any kind of deal would be struck in those circumstances.

 

[Diamond]

That's not the bit I was calling hokum on. The hokum bit is the idea that they're doing anything other than being polite by saying they'll credit him. They weren't offering a deal. They were asking for a favour.

But they're required to credit him, assuming that the terms of the original deal were standard.

It's not being polite - they're not offering him anything new or of any value - they have to do it as a matter of course.