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Copyright Law

Taylor Swift Listens to Photographers’ Concerns; Foo Fighters Not So Much

Posted by Rebecca Blake on July 24, 2015

As we reported in June, the publicity engendered by Taylor Swift’s protest of Apple’s licensing terms on behalf of artists brought to light the onerous contracts her management company had been requiring concert photographers to sign. Photographer Jason Seldon pointed out the hypocrisy of the contract, since Swift’s takedown of Apple’s iMusic license was undertaken, in her words, on behalf of creators. The outcry cast a spotlight on other troublesome concert photography contracts. Lady Gaga has been demanding all copyrights to concert photographs since 2011, and the Foo Fighters’ contract includes a rights grab of supernatural proportions: photographers are limited to one use of the photos, and the band is granted all copyrights “throughout the universe in perpetuity.”

le Soleil screenshotThe fallout on social media was comprehensive, with photographers, trade publications, and photographers’ associations decrying the contracts. The American Society of Media Photographers (ASMP) launched a Twitter campaign under the hashtag #fair4photogs. Some media outlets took a stand as well. The Irish Times declined to cover Swift’s sold-out Dublin shows in June, while photographers for six Montreal newspapers refused to shoot her concert there. Instead of sending a photographer to a Foo Fighters concert, Washington City Paper offered to buy fan photos and, tongue in cheek, promised not to ask for either their copyrights or their first born children. In perhaps the most creative response, Le Soleil in Quebec bypassed the contract by sending a cartoonist to document a Foo Fighters concert (right).

In an encouraging turnabout, in mid July, Swift released a new contract that has been lauded as a fair compromise with photographers. The contract is the result of negotiations between Swift’s representatives and Mickey Osterreicher, General Counsel to the National Press Photography Association (NPAA) legal counsel . The new contract permits photographers to use their concert photos of Swift in their portfolios and websites, permits news outlets to publish the photos more than once, and states that Swift’s agents can ask photographers not abiding by the contract to delete images, rather than destroy their equipment.

Unfortunately other musicians haven’t had a similar change of heart. The Foo Fighters management insisted to Washington City Paper that their contract is standard and exists to “protect the band.”  The Paper isn’t buying it. As they reported, “…that's not even close to being true. The Rolling Stones, to name one huge act, aren't demanding newspapers sign over their pictures and the Stones are in the middle of selling out half of the stadiums in North America.”

Taylor Swift Advocates for Musicians, but not Photographers

Posted by Rebecca Blake on June 29, 2015

Note: After this articles was published, Swift revised her concert contract, following the recommendations of photographers. 


Creators were galvanized when Taylor Swift issued her open letter protesting Apple’s decision to not pay musicians, producers, and writers during the 3-month free trial of the new Apple Music streaming service. Her letter read like a manifesto: “These are the echoed sentiments of every artist, writer and producer in my social circles who are afraid to speak up… Three months is a long time to go unpaid, and it is unfair to ask anyone to work for nothing.” Apple paid attention and immediately reversed their decision, and Swift was widely lauded by creators – except photographers.

Within a day of Swift’s open letter, UK photographer Jason Sheldon published an open response to Swift, stating that as admirable as her stance was, it was somewhat marred by the contracts her management company requires concert photographers to adhere to. That contract includes a rights grab; the management company, Firefly Entertainment, has the right to a worldwide, perpetual license to use (and to authorize others to use) any of the photos in any media for publicity and promotion. Sheldon concluded, “With all due respect to you, too, Taylor, you can do the right thing and change your photo policy. Photographers don’t ask for your music for free. Please don’t ask us to provide you with your marketing material for free.”

Firefly shot back at Sheldon, stating that he had misrepresented the terms of the contract. (The entire contract can be read from Sheldon’s original post.)  However, in a subsequent article on PetaPixel, photographer Joel Goodman pointed out that the contract Firefly is currently handing photographers is significantly worse. The terms Sheldon objected to – limiting photographers to a one-time use within a specific publication, and granting Firefly and Taylor Swift Productions the rights grab – are still present. But the current contract includes a clause permitting “authorized agents” of Firefly and Swift the right to “confiscate and/or destroy” the photographer’s equipment, should the photographer “fail to fully comply” with the terms of the contract. Or, as PetaPixel succinctly puts it, “Break Our Rules, and We Can Break Your Gear.”

While a protest against Swift’s inconsistency in sticking up for the rights of all artists hasn’t materialized, at least one publication has taken note. PetalPixel reported that The Irish Times, the second most widely read newspaper in Ireland, decided not to include any concert photography in their coverage of Swift’s sold-out gigs in Dublin. The Times wrote that they took issue with Swift’s photo authorization contract: “The photographs may be used on a one-time only basis and by signing her contract we grant Swift perpetual, worldwide right to use the published photographs in any way she sees fit.”

Below: An excerpt from Swift’s contract, highlighted by photographer Joel Goodman.

Joel Goodman contract excerpt

Happy 225, US Copyright Law!

Posted by Rebecca Blake on June 02, 2015

The first US federal copyright law was enacted 225 years ago, and the Copyright Office and Copyright Alliance marked the anniversary. The law was signed by George Washington on May 31, 1790, and established the basic principals of copyright law. The Office sent out an email relating the history of the law, noting that it was called “An Act for the encouragement of learning” and protected maps, charts, and books to encourage exploration of the North American continent:

“The first federal copyright law established the principle that authors should have rights to control the use of their works, such as how they are printed, reprinted, published, and sold. It recognized that authors should have meaningful remedies to encourage others to respect these rights and to provide appropriate compensation when those rights are infringed. And it recognized the central role a registration system plays in documenting a public record of creativity, ownership, term, and other legal facts.”

The Copyright Alliance celebrated the anniversary by creating “Copyright is a Conversation,” an online publication that explores the impact of copyright in the key areas of art, expression, creativity, technology, commerce, and identity. Pages for each area include a list of relevant articles and embedded videos. For example, the “Copyright is a Conversation about Art” page includes links to articles such as Blake Morgan’s “Art and Music are Professions Worth Fighting For” and David Newhoff‘s “Copyright Critics Don’t Quite Get Artists,” as well as a touching video by multimedia artist Cat Kaverly discussing her creative response to her fight with cancer.


Copyright Alliance Copyright is a Conversation artwork

Copyright Office Publishes Fair Use Index

Posted by Rebecca Blake on April 30, 2015

Copyright Office logoIn response to widely recognized confusion regarding the doctrine of fair use, the Copyright Office has published the Fair Use Index. The index publishes cases searchable by jurisdiction and category, including type of work, such as Painting/Drawing/Graphic, etc., and use, such as Parody/Satire, News reporting, etc. Selecting search features pulls a grid of cases, with year, court, jurisdiction, category, and outcome listed. The case names link to a PDF with details of the case, including an outline of the background, and a breakdown of the highest court ruling on the case.

The index is a valuable resource for artists and academics hoping to get a better grasp of how the fair use doctrine has been applied.  For example, searching under Painting/Drawing/Graphic pulls up a wide range of cases covering all sorts of graphic use, such as Bouchat v. Balt Ravens (logo infringement), Cariou v. Prince (appropriation of photography – see the Guild’s amicus brief on this case), and Setzer v. Green Day (illustration infringement).

The index was developed support in of the 2013 Joint Strategic Plan on Intellectual Property Enforcement, the proposal released by Victoria Espinel, the White House’s former Intellectual Property Enforcement Coordinator. The Office intends to keep adding key rulings to the database.

Apple Sued by Artist for Trade Dress Infringement

Posted by Rebecca Blake on April 20, 2015

It’s a case that puts a twist on the familiar David vs Goliath, artist-suing-major-corporation-for-copyright-infringement story. As has been widely reported, Miami-based Brazilian pop artist Romero Britto is suing Apple, Inc. and the designers known as Craig & Karl for trade dress infringement and unfair competition. At issue is a brightly patterned piece of artwork created by Craig & Karl, and featured prominently on Apple’s “Start Something New” webpage, as well as in Apple stores. The “Start Something New” campaign features works created by well-known artists using Apple products; the offering by Craig & Karl is purported to have been made on an iPad Air 2 with iOS apps.

Romero’s lawsuit is unusual, in that he’s not making the common charge of copyright infringement. An excellent article by Steve Schlackman in Art Law Journal points out that the offending image does not appear to be derived from an existing Britto work. Instead, Britto is claiming infringement of trade dress, the distinctive visual appearance of a product or packaging (such as Britto’s use of brightly colored geometric patterns and heavy black outlines). According to Schlackman, to prevail Britto must establish both that his work is distinctive, and that consumers are likely to be confuse the Craig & Karl work with his.

According to the complaint filed by Britto, such confusion has already occurred; Britto’s business partners and collectors confused the Craig & Karl artwork with his. According to the Miami Herald, Britto’s own lawyer, Robert Zarco, first saw the artwork at an Apple store in China and assumed it was Britto’s. However, Britto appears to have a steep slope to climb in proving infringement; bright patterns and thick outlines have been utilized by numerous artists (Keith Haring and Walter De Morais come to mind). As Schlackman states, the true test of whether Britto’s work merits trade dress protection may occur should he ever submit it to the United States Patent and Trademark Office.

Below: Screenshots from the Britto’s gallery (top) and the Apple “Start Something New” webpage.

Romero Britto screenshotApple Start Something New screenshot

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