Everybody Loses After Metal Band And Photographer Get Pissy Over Photographer's Copyright Threat
from the all-this-for-100-euro? dept
In many, if not most, of the copyright disputes we cover here, the stance we take is not typically a purely legal one. Often times, we make mention that one party or another is legally allowed to take the actions it has, but we note that those protectionist actions aren’t the most optimal course to have taken. Perhaps the best example of this can be found in a dispute that arose between metal band Arch Enemy and a photographer it had allowed to take concert photos for them.
The backstory here goes like this. Arch Enemy has worked with J. Salmeron, a photographer and attorney, to take photos of the band’s concerts. Salmeron then posted those photos to his Instagram account, after which they were reposted both by the band’s fans and members of the band themselves. All of that was done without issue. One of the band’s merchandise partners, however, used one of the photos of the lead singer to promote the band’s merchandise on social media accounts. Finding out about this, Salmeron contacted the company and asked for a 100 euro “licensing fee” in the form of a payment to his choice of charity.
At this point, the issue could have been resolved without any fuss, but things quickly got out of hand. Thunderball Clothing wasn’t planning to pay and reached out to the band, accusing the photographer of making threats. The band and the singer sided with the clothing company and sponsor, arguing that a payment is not required. Apparently, the band’s management is under the impression that the band, fans, and sponsors can use the work of photographers free of charge. In return, they get exposure.
“I would like to ask why you are sending discontent emails to people sharing the photo of Alissa? Alissa’s sponsors and fan clubs are authorized to share photos of her. Thunderball Clothing is a sponsor of Alissa and Arch Enemy,” they replied. “Generally speaking, photographers appreciate having their work shown as much as possible and we are thankful for the great photos concert photographers provide,” the band’s management added.
Now, much of that is true. Photographers do get exposure through channels like this. Exposure for their work generally and, in the music space, exposure to other musical acts to use their services. On the other hand, it really isn’t up to the band whether or not to authorize their partners’ use of these photographs which are, unless otherwise stated in a contract somewhere, covered by copyright for the photographer. It also is the case that Salmeron’s request wasn’t exactly unreasonable in terms of the amount or the recipient. This, in other words, is pretty tame stuff in the world of copyright infringement. So… both sides of this equation have valid stances. And, one would imagine, something should have been easily worked out given that.
Unfortunately, it seems every side decided to go full nuclear.
After some messages back and forth, the photo was eventually removed, but the band also made it very clear that Salmeron is no longer welcome at any future gigs.
“By the way, we are sure you don’t mind that you are not welcome anymore to take pictures of Arch Enemy performances in the future, at festivals or solo performances,” the reply read. “I have copied in the label reps and booking agent who will inform promoters – no band wants to have photographers on site who later send such threatening correspondence to monetize on their images.”
And then the responses from many of the band’s fans, many of whom do photography work, was to hurl snark at the band and suggest that its stance on copyright for the photographer be applied to the band’s work as well. A whole bunch of people tweeted at the band, suggesting that instead of buying their latest album, they would just download it and that the band should consider that free exposure for themselves. Now, that analogy doesn’t really hold, of course, but the point is clear.
And so basically everyone loses here. The band has pissed fans. The photographer isn’t on the Arch Enemy beat any longer. The merch company had to take the photo down. And, again, all this over 100 euro? Come on.
Filed Under: arch enemy, concerts, copyright, fans, infringement, j. salmeron, licensing
Comments on “Everybody Loses After Metal Band And Photographer Get Pissy Over Photographer's Copyright Threat”
'We can do A means we can also do B without asking, right?'
A whole bunch of people tweeted at the band, suggesting that instead of buying their latest album, they would just download it and that the band should consider that free exposure for themselves. Now, that analogy doesn’t really hold, of course, but the point is clear.
Assuming the photographer had the copyright for the photo(and given the letter he sent out he better have), that does actually seem to be fairly equal. The photographer objected to the use of his photo and the band brushed it aside with ‘hey, it’s free exposure’. By that logic if people download instead of buy the band’s latest album they can justify it by claiming that hey, it’s giving the band more exposure.
Honestly unless the contract includes extra language making it clear that the photographer handed over the rights to the photos, or granted a very broad right to use them to just about anyone associated with the band, I find it hard to blame them here, as it seems the band’s merchandise partner decided to skip the ‘hey, can we use your photos for this?’ step(seriously, how difficult would one email have been?), and when called on it the band went with a downright terrible argument of ‘at least it gives you exposure’.
Re: 'We can do A means we can also do B without asking, right?'
I seem to recall some articles here back when about Europe making it so that people who get photographed/portrayed have a copyright of some form to their image.
If that wasn’t just a proposal and made it into law that would change who is in the legal right and wrong here significantly.
Re: 'We can do A means we can also do B without asking, right?'
“how difficult would one email have been?”
Giving them the benefit of the doubt, the photos were posted by the photographer, re-posted by the band, and then re-posted by fans. It is quite possible they had no idea who to contact by the time they found the photos.
While I think that is a good reason for any responsible company to NOT use a photo for something like this, it is very possible that sending the email to the right recipient was difficult.
Re: Re: 'We can do A means we can also do B without asking, righ
While I think that is a good reason for any responsible company to NOT use a photo for something like this, it is very possible that sending the email to the right recipient was difficult.
And yet, even then chasing down the photographer would still have been easier than the train-wreck it ended up causing.
As you yourself note, for any responsible company if you can’t find who took/owns the photo and clear it from them/make sure you don’t need to, then you don’t use it. That they did so anyway would seem to indicate that they did know who took it(a fair expectation if he’d been the band’s photographer for a while), or didn’t and decided to use it anyway, and really, neither possibility leaves them looking even remotely good, with the first being ‘better’ in that they’re only slightly irresponsible rather than grossly.
Re: Re: Re: 'We can do A means we can also do B without asking,
The photo was shared on the band’s own Instagram page by the band themselves, and a clothing line who sponsors them shared it as well to promote the goods they sponsor them with.
If “they needed to track down the original photographer and ask permission to use the photo he shared publicly on Instagram” seems like the reasonable demand here, it’s just one more example of how screwed up copyright is for normal people.
“And yet, even then chasing down the photographer would still have been easier than the train-wreck it ended up causing.”
As would “not sending threatening notices to the sponsors of your regular photography client”. Hopefully, the guy will have his photographer head on instead of his lawyer one next time he comes across a major conflict between the two.
He may be legally correct, but he’s caused way more damage to himself than letting someone shares a photo of. client to promote said client ever could.
Re: Re: Re:2 'We can do A means we can also do B without aski
If "they needed to track down the original photographer and ask permission to use the photo he shared publicly on Instagram" seems like the reasonable demand here, it’s just one more example of how screwed up copyright is for normal people.
Yes and no. Legally yes, it’s a good idea, and yes, that is an indication of how nuts copyright law is. On the other hand I see it as similar to attribution, where it’s only fair to try to properly attribute a pic/song/video to the one who created it if you’re going to use it, and depending on how you’re using it(like say putting it on something you plan to sell) get permission if you can is just basic courtesy.
Was the fact that it was being publicly shared with apparently no real limits by the band and fans a pretty good indicator that it could be used in the manner they did? Yes, I’d say that would be a fairly reasonable assumption. However legally it was a risky/bad move, and skipping the ‘hey would you mind if we used this for promotion in a more tangible/we’re going to sell it manner?’ step was a little out of line/rude.
Re: Re: Re:3 'We can do A means we can also do B without
“On the other hand I see it as similar to attribution, where it’s only fair to try to properly attribute a pic/song/video to the one who created it if you’re going to use it, and depending on how you’re using it(like say putting it on something you plan to sell) get permission if you can is just basic courtesy.”
The photo was shared on the band’s own Instragram page, and the photographer was apparently happy with it being shared there. It was then shared by the clothing company on their own media with the sole intention of noting that they had made the clothing shown in the photo. Nothing on the photo was altered, and it was not intended to make any new product using the photo. It was purely an advertisement for things in the photo.
I think basic courtesy was followed here. The photo was shared to public social media by the photographer.
“skipping the ‘hey would you mind if we used this for promotion in a more tangible/we’re going to sell it manner?’ step was a little out of line/rude.”
The fact that this is not clearly implied by it being shared publicly by both the photographer and band and that the photo contained her own product is insane.
No matter, the clothing business is dead, and nobody has gained anything because someone wanted to use publicly available media to advertise their own work.
Re: 'We can do A means we can also do B without asking, right?'
Yeah; any merch partner who doesn’t do this as a force of habit… should be avoided.
I see a lot of people angry at the band here, but I think a boycott of the merch partner would be a much better step. The band was misguided, but only stating their opinion. It was the merch partner who acted without getting permission and then convinced the band they didn’t need it.
Re: Re: 'We can do A means we can also do B without asking, righ
I think most people are mad at the band because after stating their opinion they then tried to blackball the photographer.
Re: Re: 'We can do A means we can also do B without asking, righ
“I see a lot of people angry at the band here, but I think a boycott of the merch partner would be a much better step”
You’re too late. Idiots who didn’t realise that she was just essentially resharing a photo with her own work in it have forced her to shut down already.
Exposure?
The Photographer has the copyrights to their work. The clothing outfit did not. And it seemed like the photog was being pretty fair here while the band management went nuclear.
Re: Exposure?
Whether he was right legally or morally, he’s still suffered far worse from trying to demand payment than he would by staying quiet. Even so, this could be more complicated I think.
For example – I recall issues with some people being unhappy with the way some of their photos uploaded to Flickr were reused because they didn’t check which licence they used when uploaded. Does Instagram’s licence allow you to restrict who the photo can be shared with? If they do and he opted not to, it seems like extortion. If not, it could be argued that he signed away the right to control sharing on that platform, depending on their T&Cs.
In any sense, even if the photographer had the right to demand money it was clearly a dumb move to start attacking his clients’ licensed merchandiser for advertising his client’s product. If you attack your clients, you tend to not have them as clients, and possibly not clients associated with them as well. That shouldn’t leave you open to extortion yourself, of course, but this was clearly the wrong way to go about things for presumably a smaller amount of money than he was paid to take the original photos.
Re: Re: Exposure?
To be fair, the photographer in this case also happened to be an attorney. Going by lawyer full nuclear standards, this is ridiculously tame!
Re: Re: Re: Exposure?
Well, true, but that explains the mindset, hammers nails and all that. Lawyers often don’t understand that just because you can do something, it’s not always in a person’s best interest to actually do it.
Re: Re: Re:2 Exposure?
As a lawyer, I would disagree. It’s our responsibility to give clients all of their options, to ask for their goals in a given dispute, and to offer our best advice as to what should and should not be done. But once a client has made a decision, as informed as we can help them to make, hopefully, it’s our job to carry it out even if it’s not the best decision they could’ve made.
I’d also refer you to rule 2.1 which is one of the ethical rules lawyers must follow, and which relates to this sort of thing.
Re: Re: Re:3 Exposure?
Well, in that case I’d refer you to old saying about a person representing themselves having a fool for a client.
Analogy doesn't work?
_A whole bunch of people tweeted at the band, suggesting that instead of buying their latest album, they would just download it and that the band should consider that free exposure for themselves. Now, that analogy doesn’t really hold, of course, but the point is clear._
Can you explain _why_ that analogy doesn’t work? Seems perfectly legitimate to me. Both are uses not authorized by the original copyright holder.
Re: Analogy doesn't work?
I agree. I think the analogy is quite apt so am keen to hear a response.
Re: Analogy doesn't work?
My understanding is not in terms of copyright, but in terms of exposure. The photographer objected to the use of her photos in a way that, if allowed to continue, would have caused the photo to be seen by more people. But if a fan just downloads the band’s next album from an unauthorized source, that album isn’t really heard by more people. I mean, sure, you can share the album freely with family and friends after downloading it, but that’s not directly caused by the illegal downloading of the album. On the other hand, the sharing of the photographer’s photo on the band’s merch partner’s Instagram directly causes the photograph to be seen by more people. That’s just my understanding!
Re: Analogy doesn't work?
Honestly, i’d bet it was a feeling more than a full fledged analysis.
But to humor you, Because the album is the album, either in download or sale. But for the photo, the t shirt is not the photo. The markets are different. Those interested in the photo commercially can not just use the t-shirt, or vice versa. So the taking isn’t designed similarly. The photographer can’t sell the shirt himself either. If there was a contract, it would have been unlikely to grant unlimited publicity rights to the photographer. More. it seems the photographer was not monetizing the work himself. Honestly the situations are just so different. It feels odd. Forced.
The Actions of the band are crap. Doesn’t mean the analogy isn’t crap as well.
Re: Analogy doesn't work?
In the case of the photos, the guy uploaded the picture himself to social media and allowed people to share, he just objected to a particular kind of sharing (that I suspect might still be allowed by the Instagram licence but don’t know for sure). In the second, the band would presumably not authorise any sharing at all. Also, in one you’re talking about a single use of a photo by his client’s subcontractors to advertise his client’s product, whereas in the second you’re talking about copying and distributing the client’s product itself.
They’s completely different situations.
Re: Analogy doesn't work?
The analogy doesn’t work entirely because of the nature of each product. Keep in mind, the photog wasn’t upset at the sharing of his photo by fans, just its use on tshirts…but that use on tshirts is SPECIFICALLY going to result in exposure of the photo and the photog.
A single person downloading an album for free and then announcing there has been “exposure” doesn’t do any of the work for the band that a tshirt being worn publicly with a photo on it does. Now, album downloads CAN result in exposure, as fans share them with each other, or play them in groups, etc.
But it’s really not the same thing, and that isn’t what the snark-masters in this case had in mind with their comments.
Re: Re: Analogy doesn't work?
” Keep in mind, the photog wasn’t upset at the sharing of his photo by fans, just its use on tshirts…but that use on tshirts is SPECIFICALLY going to result in exposure of the photo and the photog.”
Erm, maybe I’m missing something there, but from the article it appears that the photo was used just to promote clothing, not to be used on clothing. She’s wearing their clothing in the photo. The photographer’s work wasn’t at risk at all, except to be used to promote the subject.
The band’s ‘exposure’ argument seems to fit right in among the stories on the Clients from Hell website.
Re: Time to let loose the Bastard Operator From Hell on the band!
“Operators here, how can I not help you today?”
“This electric guitar doesn’t seem to work. I just received it this morning!”
“Yes, there was a bad case of [flipping pages] VIRAL BUS OVERFLOW that security notified me about.”
DUMMY MODE ON
“Uh oh. How can I get rid of the viruses? Our public exposure is pretty low already, we’ll have to find a solution soon!”
“No worries. Just cleanse the bus and you’ll be exposed in no time.”
DUMMY MODE IRREVOCABLY ON
“Great! I’ve got a rag and cleaning solution right here. Where do I apply it?”
“Oh, just fill it in the monitor, enable the cleaning mode and then connect guitar and monitor.”
“OK I’ve removed the back of the monitor. But I don’t see anything moving in here, where is the bus?”
“It must be worse than I thought, the bus is already wrought down by the viruses. You’ll need to kickstart it. See the red and blue wires? Remove the coating entirely, then connect them with both your hands.”
“I don’t see, how–”
-BrrrzzzZZt- -thud-
…
“So, how did you do it?” the PFY asks his master.
“Did what?”
“The monitor never could have supplied that much power to turn Alissa into that nasty pile of smoking remains. So, how?”
“Well, I guess she was exposed too much for her own good. Maybe it also helped replacing the power transformer with a tad better one. Oh, and should I mention amping up the volume a bit?”
Another day, another served customer!
“And, again, all this over 100 euro? Come on.”
This is the attitude. Copyright worshippers would rather burn 100,000 than see 100 get “taken” from them.
“Arch Enemy has worked with J. Salmeron”
I’m missing something. This tells me the band contracted/hired the photographer to take pictures, which makes the band owner of the copyrights.
How does the photographer own the copyrights?
Re: Re:
Hiring someone to do something does not by itself create a work made for hire scenario. (At least in the US; I’m not sure where these events took place)
I suggest looking carefully at the definition of works made for hire in 17 USC 101, and then reading Community for Creative Non-Violence v. Reid which discusses at length what factors must be considered to determine whether a person is an employee creating works in the course of their employment.
As a general rule, in fact, I would suggest that one should assume that hiring someone to create a work will not create a work made for hire unless it can be clearly shown otherwise. The understanding at the time of the parties involved is often not controlling.
Re: Re: Re:
“Community for Creative Non-Violence v. Reid”
In this case, both parties walked away with partial ownership of the copyright after SCOTUS stated Reid was contractor.
Common sense says the band expected to retain the copyrights given they were to be used as promotional material. If a law becomes so nuanced as to define “work” before it can assign “copyright”, the law is broken.
I’m siding with the band on this one, law or not.
Re: Worked with...
It could also mean that the band knew the photographer and told him he’s welcome to take pictures. Nothing says they CONTRACTED with him to do it.
Re: Re:
It’s entirely possible the contract did not have that clause.
Alternatively they either didn’t have a contract or the picture was under a certain license type that did not allow the merch company to use it.
Also wanted to say everyone loses not because the band and photographer went nuclear.
Everyone loses because copyright laws suck so bad it allows people to go nuclear.
This band really fucked up and it backfired on Arch Enemy in a major way. What did they think that other photographers and fans would do? Nothing?
When a photographer takes a picture of a band, the photographer owns the intellectual rights of the photo that they have taken and bands cannot just tell photographers what they can or can’t do with their photos.
This is just deplorable that this band, who seems to be looking for free press on their albums, doesn’t seem to get. Banning someone from their concerts, for whatever reason?
LOLS
Good luck on that when every concert fan shows up with a camera in an effort to make money from those photos in the same way. My guess is that Arch Enemy has never heard of the Streisand Effect.
Re: Re:
“Banning someone from their concerts, for whatever reason?”
Why would you want a guy who you believe just tried extorting your sponsors at one of your gigs?
I was just reading about this last night, and unfortunately this isn’t the entire story.
Apparently the clothing apparel person came out and publicly apologized and mentioned that there was some initial confusion. Then she did in fact do the donation, and it seemed everything was ok. But, unfortunately, some rabid fans of either the photog or band (can’t remember which at this time) attacked her with the usual internet vitriol and death threats.
She has now completely closed down her clothing business as a result of this, which isn’t what should have happened. It’s a sad story for all involved.
Re: Re:
Well… that’s just sad. Especially since the context of the original message was essentially “hey look at this cool pic of the band I work with wearing my clothes!”, giving exposure to all parties concerned while costing them nothing.
Band may have lost fans. Photographer has definitely lost one paying gig and perhaps numerous others. Clothing maker loses her entire business. All because someone shared a photo in a way that didn’t cost the photographer one cent until he tried to demand it.
Fun facts
Based on the article written by the photag, he was “covering” a festival at which this band played. Based on the article it sounds like he was not hired by the band in any way, but was maybe there in a more journalistic capacity for this “metal blast” website. Also, it sounds like he makes most of his money from his lawyering and photography is more like a hobby to him which is why he offered the option of a $100 donation in lieu of payment.
Another fun note, the band portrays itself as really anarchist, so them getting all protective of their corporate sponsors must be a bit offputting for any of their fans that buy into the whole anarchy thing.
Re: Fun facts
2. “Corporate sponsors”? I think you need to do a bit more reading from more factual sources.
Re: Re: Fun facts
1) No, but this article seems to be based on a torrentfreak article which only cites the article written by the one guy involved. I havent seen any kind of response by the band posted anywhere.
2) The clothing company was a sponsor…it’s mentioned at least twice in block quotes in the article above.
Re: Re: Re: Fun facts
2. If you’re use the article to identify the clothing company, you’d see it’s this one:
http://thunderballclothing.com
“(it’s hard to use a word “company” here, as since day one it was just one person – me)”
Corporate sponsors? Please…
Photos and Copyright
Many photographers allow non-commercial use of their photos with proper credit. But if you try to use the photo commercially, they will want their cut. The tee-shirt company was in the wrong for not getting a clearance to use the photo commercially and then not pay a token fee to a charity. The band manager is an idiot for failing to understand that music and photography have different monetization methods.
Often one pays the photographer a fee for a shoot up front. So the photographer has gotten some money so any commercial sales beyond the initial shoot are to some extent found money. So while they are concerned about sharing many make a distinction between non-commercial sharing and commercial uses.
Did you really just use the ‘for the exposure’ excuse?
That went out of style like, 30 years ago.
Yes, everyone loses when you go full nuclear, but good for the photographer for standing up for themselves, and by proxy, all other artists.
Re: Re:
“good for the photographer for standing up for themselves, and by proxy, all other artists.”
Except, if you read that article all that’s happened is that he’s helped bully a small business into closing for the crime of sharing a photo on social media with their own work in it.
An artist has been destroyed here, not saved.
Shutting down her clothing business is such a major knee jerk reaction. When are these public personalities going to realize to stop taking these attacks online so personal? The only thing it does is feed the trolls. It’s better to not reply to them and only reply to your fans. It’s easy to ban someone from your social media channel or to get those trolls banned from the social media platform.