The “Standard” Photography Agreement?
*Note: The photos contained in this article are for illustrative purposes only, to show the workspace of a concert photographer and in no way imply that any of the bands shown have the types of agreements discussed in this article.
I’m sure if you’re a concert photographer, you’ve been there before… you’re being ushered into the photo pit, mere minutes before the first band takes the stage and someone shoves a piece of paper into your hand and asks you to “sign this” before taking any shots. When you look at what they’ve just handed you, it reads “Standard Photography Agreement” at the top (or something similar) and then has a bunch of legal language written in the
smallest font possible. You’re then expected to shift your focus from making sure your camera settings are where you want them and finding a good spot in the pit, to reading a legal document in the dark with all the vast experience of those years of law school you attended, then sign it and hope you didn’t just sign away a kidney. (For those that can’t tell, that last statement is dripping with sarcasm). This is not an unlikely scenario and for those that aren’t frequent concert photographers, happens quite often. Sometimes photographers are given these “agreements” a few days in advance, but not always, and even when they are, they usually aren’t just a harmless little piece of paper.
A few recent events similar to this have inspired me to dig up an old industry topic and take my rabbit-eared copy of Black’s Law Dictionary off the shelf. If it had been just one event, I might have brushed it off, but when you keep running into the same situation every couple of weeks, it’s hard to ignore. Today, I’d like to discuss the term “Copyright” as it pertains to concert or live event photography and the “Indemnity Clause” that you might find in what some artist’s and their management companies call “Standard Photography Agreements.” Now, I know this will most likely make most people’s eyes start to glaze over, and if you’re even still reading this after making it through the previous sentence, then congratulations! For the rest of you, enjoy your nap.
I’d also like to point out that the term “standard,” is a bit of a misnomer, as there is no such thing as a “standard” photography agreement. If there WERE an industry standard, then perhaps things would be much simpler and articles like this wouldn’t be needed, but as of right now that’s wishful thinking. When an agreement says that it is “standard”, what that really refers to is the legal term “standard form contract”, or “contract of adhesion”, meaning that it is a “take-it-or-leave-it contract”. Basically, it is an agreement between two parties where one party sets the terms, and the other party has little or no ability to negotiate more favorable terms. That is why it’s of little to no value in marking through or scratching out only certain portions of these types of agreements before signing them (as I’ve heard many other photographers tell me they do). By signing it, you have agreed to the entire thing (regardless of what has been scratched out), unless the contract was negotiated beforehand and the unwanted language removed altogether before signing.
Now that we’ve established all that, let’s discuss the main reason you’ve probably read this far: Copyright. This is a word that gets thrown around a lot in the photography world, but I’m sure only a fraction of photographers and even less PR and management types truly knows what it means in legal terms as it pertains to photography. To put it simply, copyright is a property right, as stated in the Federal Copyright Act of 1976, and photographs are protected by copyright from the moment they are created. Meaning that, generally, the person that created a photo owns it. I say “generally”, because there are some caveats. For instance, in certain situations, you may be working for a company and your contract states that everything you “create” belongs to them, in which case every photo you take legally belongs to the company. But, putting those types of situations aside, a copyright is a legal device that gives you (the creator) sole rights to publish and sell that work. Only copyright owners can control the reproduction of their work. You may grant or sell those rights to others, including publishers, production companies, or artists, but to do so is known as “licensing” and does not transfer copyright (ownership) of the photo(s), unless specifically stated that you intend to transfer all ownership of the photo(s) to another entity. This is similar to how say, a musician, licenses their work for reproduction of CDs, Records, digital platforms, public performances, sheet music, etc.
The highlighted red area above shows a perfect (and extremely clear) example of where your Copyrights as the photographer get transferred completely to the artist and/or production company. Not all agreements will be this obvious. (The names and any identifiable info have been blacked out so as to keep this discussion free of any finger pointing. Again, the intent here is to educate.)
But, what if I don’t have a watermark or a copyright mark on my photos (i.e., do I have to give a notice of copyright)? Are my photos still protected? The short answer is, yes. Absolutely. A notice of copyright (commonly called a copyright mark) is not a legal requirement under U.S. law, although many find it beneficial to distinguish their creative work from other similar works. Doing so informs the public that the photo is indeed copyrighted, identifies the owner, and in the event the copyright is infringed (meaning, used without the copyright owner’s permission), then “no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages.” Basically, that’s a fancy way of saying that the person who stole your photo knew that they were stealing it and didn’t “accidentally” use it without knowing who owned it. This is why I believe it’s important to watermark your images on social media. Even though you don’t lose any rights by NOT watermarking your images, by placing a watermark on your images, you eliminate any question about who owns it and thus anyone who attempts to infringe on your copyright cannot claim that it was an innocent mistake, even when it conveniently gets cropped off. Also, it should be noted that the use of a copyright notice does not require advance permission from, or registration with, the U.S. Copyright Office. This means that if someone tries to tell you that they can use your photo because it hasn’t been “formally” registered with the Copyright office, they’re dead wrong. But, the famous “rights grab” (as the sneaky transfer of copyright is sometimes known), isn’t the only thing to watch out for while you quickly read that “standard” agreement in the darkness of the photo pit. The Indemnity clause can also get you into trouble. This clause, usually buried somewhere near the end of the contract or agreement, is one that most people don’t pay much attention to, or one they just don’t understand, so they end up ignoring, but is very important. Black’s Law Dictionary defines indemnity as “a collateral contract or assurance, by which one person engages to secure another against an anticipated loss or to prevent him from being damnified by the legal consequences of an act or forbearance on the part of one of the parties or of some third person.” In short, this clause is meant to shift legal liability from one person or party to another.
Not all indemnity clauses are the same, but generally the goal of a blanket indemnity clause in a photography contract/agreement presented by an artist or his management is to shift any legal recourse for their use of the photos you take (and they use) from them, to you. This means that you, the photographer, assumes the responsibility for any legal consequences caused by their acts or warranties. To put it in even scarier terms, the indemnifying party (the photographer) can be held responsible for ALL unsubstantiated or invalid claims asserted against the artist or it’s management. So, if the artist or their management uses one of your photos (which they most likely have not even paid you for), and someone sues them, however unlikely that may seem, the artist and/or their management will rely on you to pay all court/attorney costs. But, with all the money you make as a photographer, you can probably afford that, right? At the end of the day, your best defense against any of this type of predatory legal language is educating yourself on what to look for. Some contracts are pretty clear and straightforward. Others look like a lawyer was paid by the word to write it. So, when you’re handed a page full of legal terms about 5 minutes before you head into the pit, carefully look it over and if you have questions about any of it… ask. If you get a blank look, then the best thing to do is to not sign it and live to shoot another day, but ultimately that decision is yours to make. Everyone has to draw their own line in the sand and decide which side they want to stand on.
I now return you to the regularly scheduled awesome concert photos you’re used to seeing here on the Texas Music Photographers from hard-working and talented artists that devote a lot of time, energy, and money to creating them. For more information: Guide to Copyright Copyright Act (17 U.S.C.) PDF Copyright Act (17 U.S.C.) (Clickable Index)