First of all, I can’t believe I’m writing again about Taylor Swift. But on a monthly basis, she has done things in the trademark and copyright worlds that have the mainstream and entertainment media talking about IP, and we lawyers just can’t divert our eyes. None are more intriguing than the battle with concert photographers.
Many of the Swift headlines have been pretty mundane. A lawsuit defending a favorite trademark Lucky 13? Routine. Filing a slew of trademark applications to protect possibly valuable names? Happens every day. Getting Apple to back down on royalty payments with the mere stroke of a pen? Rockstar. Controlling use of her photographs from concerts and other appearances? Everyone wants control. But is that just business as usual? Maybe not so much.
The active approach of Team Swift and its IP world has been mostly admirable, from my perspective. The first two issues got publicity because she’s Taylor. So much has been written about her stunning success in getting Apple to abandon its 90-day trial period before paying for new music. That was really more about policy and publicity than about any intellectual property rights. The Robin Hood narrative surrounding her accomplishments are interesting since fans are not generally known to lose much sleep caring about musicians’ royalties. Many spend most of their attention figuring out how to download music for free, or otherwise avoid buying music directly.
What to make of the photographer controversy? What Swift is doing is, first of all, is not unique. Other performers have taken strict measures to control the use of their images. But it is important to understand what is happening. Photographers are not being forced to relinquish their copyrights, as the defenders are quick to point out. But looking closer, are those copyrights worth anything once all of the terms and restrictions are considered? Maybe not.
Of course, there is a difference between controlling the copyright in the image and controlling use. Celebrities have rights to control use of their images for profit. So if a photographer takes a picture of a celebrity in public, the photographer can own the copyright, and is free to sell the picture to someone for a profit. But that buyer cannot use the photo in an ad unless the celebrity agrees to use of their image to endorse a product.
There is an intricate relationship between the publicity right and the copyright. If the photographer owns the copyright, but does not have the right to sell the image, ownership of the copyright is effectively worthless. Celebrities can set the conditions of photographs taken at private venues which, in essence, they are renting for a particular period of time in order to have a performance.
Also, do not confuse this with photographers who sell pictures they take in public venues, as opposed to paid-admission, private venues. Photographers can use the images they take in public. This situation does not relate to that right.
When you consider Taylor Swift’s concert photo policy, what you see is a clear power play. If you want to photograph our concert, then you are given credentials, provided you agree to the terms. The issue is not so much whether it is lawful. The only question is whether this is overreaching. Is this “fair?”
The idea of regulating use of photos is hardly new. Examples from sports and entrainment abound. Somewhat more obscure are situations such as demonstrations of the Wright Brothers’ first flights, which either excluded photographers or admitted photographers only under strict control of the event organizers. In fact, according to David McCullough, eminent historian and biographer, Wilbur Wright once marched into the stands to demand face to face to a photographer who brought his photo apparatus in 1908 into a flying exhibition that cameras were strictly prohibited. Wilbur effectively stared down the photographer, who gave up his photographic plates to Mr. Wright.
The Taylor Swift defenders have made a number of statements which may be technically true, but really talk around the issue. Their sound bites sound like they were written by lawyers, and we all know how that goes. In claiming that they do not deprive photographers of the opportunity to resell images, they disregard that the photographers’ “right” to resell must have her approval. So it’s not a right, it is a “privilege” which requires permission.
Then there are the reports that have said that the copyright ownership will reside in Ms. Swift. The Swift spokesman says that it is a misrepresentation to suggest that copyright is owned by anyone but the photographer. The agreement does not transfer copyright away from the artist.
But where the photographer cannot reproduce the image without authorization, then the legal right to make and sell copies or reproduce the image – fundamental rights of copyright ownership – become meaningless. The photographers are permitted to retain a right to something they can do nothing with. They own copyrights because they are the “authors” of the photographic works. So, just because the terms of concert admission do not require them to formally assign away their rights means that it is correct that the photographers are still owners. But Swift has all of the indicia of ownership, meaning an unrestricted right to use the photographers’ photos for her own purposes. That means that any picture a photographer takes at a concert can be used forever and for any purpose by Taylor Swift, with no compensation to the photographers.
The Apple success was a coup for her and will benefit, in theory, lots of parties with far less bargaining power. The photographers’ rights issue benefits the photographers because it lets them cover a concert as news. Apart from that privilege – which clearly benefits the publication and the artist both – is a different matter which shifts the traditional benefits of copyright so far away from the copyright owner that Taylor Swift and company should not be surprised by the reaction to the photography policy. Demanding the right to have unfettered use of all photographs taken by these photographers really stands traditional concepts of copyright ownership on its head.
Partner Jess Collen published "Is Taylor Swift Entitled to Say: 'Photographers' Rights: You Belong With Me?" on Forbes.com. Jess is a contributor on the site and regularly writes on trademarks, branding, copyright, advertising, and patent law.
You can read the full article on the Forbes website.