Photographers VS Performers (Musicians / Bands) ?

[Billy]

Hello,

I am a photographer who mainly shoot concerts as part of my services.
Relocated years ago in the UK and searching the UK legal frame.

I would like to delve in the scenario of a photographer taking photos for
exploiting them in a commercial way, which is to my point of view pretty
much a normal form of business.

Photographer has AA Access in a venue and the performing artist in it.

1) How can the perf.artist limit the photographer from taking photos and
exploiting them by making posters?

We do not have a case of privacy, or defamatory photos.
Selling High Quality Posters would be the target
In the Uk there is no publicity rights and essentially
passing off would be highly unlikely

2) Where the performance rights kick in?

According to the Germanys Federal Supreme court case Beuys vs
Schloss Moylander Museum (2013), photographs were not violatiing a
performance right. It would also be highly unlikely when the performance
main act is the music and not the personas opposed for example to
actors.

What happens if someone from the audience puts photos of the
performance on his open to everyone personal page having the
performance essentially on public domain (from 1st of Oct.if I am correct?)

Could someone exploit a public domain photo ?

Are there any rights I've forgotten?

Thank you in advance

[AndyJ]

Hi Billy,
The only way in which I could see your ability to exploit images obtained at concert being limited is under the terms that your all-areas pass is issued. Assuming the pass is issued by the promoter* rather than by the artist's management, then I don't see the artist having any rights to directly dictate what you can and can't do with the images. You are right that performer's rights do not cover still images. The relevant part is section 182 of the Copyright Designs and Patents Act 1988 which says:

182 Consent required for recording, &c. of live performance.

(1) A performer’s rights are infringed by a person who, without his consent—

• (a) makes a recording of the whole or any substantial part of a qualifying performance directly from the live performance,
  
  (b) broadcasts live, the whole or any substantial part of a qualifying performance,
  
  (c) makes a recording of the whole or any substantial part of a qualifying performance directly from a broadcast of, the live performance.

(2) [repealed]

(3) In an action for infringement of a performer’s rights brought by virtue of this section damages shall not be awarded against a defendant who shows that at the time of the infringement he believed on reasonable grounds that consent had been given.

Here 'recording' means either a sound recording (as defined by s 5A) or a film recording (as defined by s 5B), not still photography, which in any case is unlikely to meet the 'substantial part' test. What is more, paragraph 2 (1A) of Schedule 2, which permits fair dealing in a performance for the purposes of reporting current events, would probably apply to the sort of reportage photography you are talking about.

As you mention, defamation and passing-off are unlikely to be applicable to this sort of use of the images. There is no right of publicity in UK law, and the nearest protection comes from Article 8 of the Human Rights Act (the right to respect for a private and family life) which would not apply in the case of a public performance. By definition there could be no expectation of privacy during the performance. However if you were able to take a picture of an artist relaxing or changing costumes etc backstage, then this might amount to circumstances where there was a reasonable expectation of privacy. It would depend on the actual facts of the case.

Turning to the last part of your question, I suspect you may have misunderstood something here. If a member of the audience takes a picture of the artist and publishes it on the internet, that does not mean their image is in the 'public domain' in the sense that term is used with respect to copyright. The audience member is entitled to copyright in their image just as you are with your images. And just as you would be able to claim for infringement if one of your posters was copied without permission, so could the audience member if anyone copied and exploited their image without permission. I'm not clear about why you think the situation may change on 1 October. I presume you are referring to the coming into force of The Copyright and Rights in Performances (Quotation and Parody) Regulations 2014. If so, then again I think you have misunderstood what these regulations permit. They would not allow a whole image to be copied, since that would not be fair dealing, nor would the use in a poster be quotation within the terms of the regulations. If I have misunderstood what you meant, please can you clarify what you are asking.

* the issuing of the pass will effectively put you in a contractual relationship with the person who issues the pass. Breaking the terms under which the pass is issued could amount to a breach of contract for which you might be sued, and could also amount to a breach of confidence as argued in the case of Douglas v Hello Ltd

[Billy]

Hi AndyJ
Thank you for answering so promptly

So you are saying that in the case of the pass it is up to the promoter
/ venue and the contractual relation I will be having. And that is
because the promoter has a seperate agreement with the artists
management, which I will never know as a photographer. I am also
guessing that the upper hand although artistically lies with the artist's
management, the true upper hand lies with the venue holder, which
comes from the main concept of the "pass" being an allowance of
presence on the grounds of tress"pass" of the private property
that is the venue

In the case of the wedding with OK! and Hello! one photographer had
exclusive access under a million $$$ contract and not a general
publicity performance with a £10 ticket. So I am guessing the wedding
that is a private act of a public person differentiates from a public act
of a public person.

The audience member is entitled to copyright in their image just as you are with
your images.

As we know all venue holders/promoters print tickets that forbid
photographs, videos etc to be taken, yet these are the ones who allow
all tablets, expensive phones and compact sized cameras (who
might well be professional DSLR's) to enter their premises. What venues
know is that people do not know about their rights especially teenagers.
So they use their photos as orphan works and use them in their facebook
pages (many of them venues do not even have a business page,
making every post in fb unauthorized business communication).

0) I would wonder if now with the new regulations about orphan works**
can have gradually full access to somebodys copyrighted work without
saying or paying anything if they say we dont know the persons real
name if it is a fake facebook account with a name like "I AM SUPERMAN"
that they took the photo from.

1) So the fact that they forbid the audience taking photos and then they
use these photos for free to create promotion through their normal
course of business, doesnt that create a null printed rule on the back
of a ticket that by custom is allowing everybody to take pictures and
video essentially shooting themselves in the foot?

2) The fact that venue holders also use non professional photographers
to cover gigs or they do not pay them, does this not make an illegal
contract most of the times as non payment for services of exchange of
copyrighted material with nothing create a non contract?

3) What would be the contractual relationship between me and a venue if
I paid the venue/promoter of having access in all areas and clearences
and I got it so I could use copyrighted material for exploitation for
commercial reason?

4) What if a promoter gives me all access and crearences, yet the artist
management sais you cant take photos of that X band / person because
her photos are part of an exploitation scheme from her already like
Rhianna?


5) What are the barriers of exploiting photos from a public event open to all?


* The reasons I believe things change in 1st of October is because of the
government and/or the EU trying to fiddle with CMO's getting them to be
public bodies to fall in the scope of a public administration
If CMO's become public bodies by legislation, then all works that are
registered under them become works under public administration
(I hope this non-science fiction worst case scenario does not materialize)
the list is not exhaustive

**new regulations for orphan works

[AndyJ]

Hi again Billy,
I think I understand what you are getting at. As far as the Regulations are concerned, I didn't consider the one covering orphan works licensing because that Statutory Instrument doesn't come into force until 29 October and you had mentioned 1 October in the original posting. And I certainly didn't get the impression that your first post was about the Extended Collective Licensing scheme. And although all these new regulations have come about because of the Enterprise and Regulatory Reform Act 2013, they cover rather different things.
Anyway, answering your points in roughly the order you raised them:
1. By definition the Pass you are provided with, be it by the promoter, or artist management, provides you with privileges not available to normal members of the ticket buying public. In return for this you would be expected to abide by any terms and conditions which may be laid down by the issuer. To that extent this forms a contractual relationship between you and the issuer which is different to the contract between the venue and the ticket-buying public. I think it is implicit that where an AA pass is issued to a photographer, this will be for commercial purposes, even if the photographer is technically not a professional. Certainly any use of photographs would not be solely for private use.
2. As you correctly say, most venues make it condition of entry that ticket holders do not take photographs, and as you further say, this is widely flouted. I imagine that the venue management see it is too difficult to enforce, especially when most people these days have capable cameras in their phones. And as for the equally widespread publishing of these pictures on social media, it is virtually impossible for the venue management to pursue an individual perpetrator because it could well have been any one of the several thousand fans who attended the event. The main purpose of the 'no photography' condition seems to be to control the access of professional photographers, so that they need to apply for an AA pass which may come with additional conditions already referred to. And at this point the venue management will have a name and contact details, should they wish to pursue the photographer later for any infraction of the conditions.
And here I would quibble with your remark "they use their photos as orphan works". Assuming that the 'they' here refers to the venue or promoters, then copying photographs from individuals' Facebook or Instagram pages for use of the venue's site is still infringement and really has nothing to do with whether or not the photographs are orphans. I'm sure you are right that this probably goes on because the audience members are unaware of their rights or perhaps are indifferent to them. That does not excuse the infringement. And the Orphan Works licensing scheme will not be a way of legitimising such infringement because the diligent search criteria will quickly establish such works are not genuine orphans.
3. I think your next point was about the legality of a contract if the photographers are not paid. One of the necessary ingredients of a valid contract is a 'consideration'. This means something of value, but doesn't necessarily mean money must exchange hands. Indeed the term 'peppercorn rent' derives from the habit of letting property in exchange for one peppercorn as rent, a peppercorn being something of very little value. In other words so long as both sides get something out of the deal, and they are happy to enter into a legally binding agreement, then that may well constitute a contract.
4. The contractual arrangement may be simply between you (the photographer) and the venue, or it may be multi-lateral if the artist's management have negotiated this with the venue. You can be sure there will be a detailed written contract between the artist and the promoter, given the large sums of money involved, and I would be surprised if there wasn't some mention of the promoter's responsibility for controlling AA pass holders, including photographers. If you are unsure of the relationship, check with the person who issues the pass to see if anyone else has the right to tell you what photographs you may take. However in simple terms, you are on private property, and therefore it is for the owner of the property to determine the rules.
5. If you are at an open event for which there are no conditions of entry, then there are no special restrictions about what you can photograph or how you may exploit your images. Clearly there are some general 'social' considerations such as not causing anyone alarm or distress, and not obstructing the highway which would apply in any public place, but common sense should probably deal with those sorts of things.
6. Your final point about CMOs (Collective Management Organisations) - more usually referred to as collecting societies - seems to be heading off in a quite separate direction. I don't think there is any justification for claiming the government and/or the EU are trying to turn the collecting societies into public bodies. I agree that the reasons given for bringing in extended collective licensing (ECL) are somewhat spurious but all the pressure for the changes has come from big business rather than governments. The aim of ECL is streamline the licensing of works. It won't apply to areas of works where the collecting societies*, or their membership, decline to operate the scheme, and anyone can opt out if they wish. Your other remarks may be prompted by regulations requiring the collecting societies to adopt a code of practice, but this is really intended to protect their members, since there are considerable amounts of money involved, and until now, very little to prevent maladministration (or worse) from dissipating these assets before they can reach the members.

* By way of example, the collecting society which represents photographers, DACS, is opposed to ECL. Here's what their website has to say on the subject:

DACS’ position on this issue has remained consistent – we firmly believe rights should not be licensed collectively if rightsholders wish to reserve the right to exercise their exclusive rights themselves. Rightsholders should be free to choose what is licensed collectively, and what is licensed directly. Rightsholders must also be able to opt out of any ECL scheme.

[Billy]

By definition the Pass you are provided with, be it by the promoter, or artist management, provides you with privileges not available to normal members of the ticket buying public.

By actively accepting the photos taken by amateur photographers
and actively not using any control at the gate to keep phones and
cameras out of the show, like in concerts / stadiums etc a venue is
accepting that the terms and conditions are invalid.
Not only that, the venue does a copyright infringment on the links
from personal pages using them for profit and advertising.

When they use amateur photographers they tell them that they
have a pass and they just use their photos for personal use at the
end, because essentially they take all their rights.

When I hold a ticket and take photos as well
and I am not in the pit acting as a photographer with a pass,
I have more privileges than the photographer in the pit.
Why
a) the photographer has to lose money to get to the venue 3 times
before the show. First to meet the PR manager and show his credentials
and photos. Secondly to take his pass and learn some details from the
artist manager, telling him his areas of photoshoot and what are his
allowances. Sometimes he may be even lucky to have a rights grab
contract in front of him to sign so he gets the pass. Third time to get
to the venue. Total cost of petrol/gas =££ the price of the ticket!
Next (sometimes and sometimes almost always)
b) The photographer is only allowed for 3 to 10 minutes of the show
c) The photographer is escorted out by bouncers at the end of the 10'
d) The photographer is spat and called bad names just because he is in
the front row when there is no pit trying to make a living
e) The management and the venue are expecting from him results
while they have the rights from the photos
(That is I am afraid the norm nowadays with some exceptions)

By stating you all these, I am just stating the obvious.
All comes down to copyright infringements from the venues.
The musicians/managers want their share of the rights from the photos
The venues want their share of publicity making profit from the photos

Nobody actually compensate the photographer when he acts
professionaly because in the first place he doesnt know his rights

And copyrights are intellectual property rights.
You can read all about it in photography forums

Acting professionally the only thing you would have is a contract
between two businesses. But as the OFT does not exist. The unfair
terms Act 1977 is not sufficient to describe that peppercorn rent
you said, and litigation would be a full time job calling people to tell
them how to run their business professionally.

Turning a blind eye would be a solution. I guess thats why
justice is blind So if I register myself with DACS I would never
get enough money If I acted professionally at least in the start.

I know I am not alone in this. Many others photographers get their
rights grabbed by people of the music industry. Musicians that play
in recordings and live shows, singers that sing in cd's and shows,
even that electrician that has the best male voice in the UK but
the talent show that auditions everyone has made it clear that his
rights will be grabbed too. Thats why bands play for free in venues.
They dont know their rights, and they try to get fame at any cost.

I hope our conversation helps a lot of people in the music business,
be that sound engineers, musicians, photographers etc.
We must learn our rights as our property is intellectual.

Thank you very much AndyJ for your clarifications

As to the subject of orphan works and public bodies I was about to
give specific links but I couldnt because the system didnt allow me
because of spaming? anyway it's five days away when I can post them

I will be back for more questions, when time allows me
Again thank you

[Billy]

so long as both sides get something out of the deal, and they are happy to enter into a legally binding agreement, then that may well constitute a contract.

If a person A without being in his usual course of business enters
to a legally binding contract with a business, he must theoreticallly
instantly become business that has started as such a usual course
of business with that other business as a start.

A business could not enter into a legally binding contract other than
consumer and business as far as I know. Private contracts may well
get legally enforced and bound if both sides act equally and with equal
terms. Otherwise if there is no equality on the part of bargaining a deal
then a businessman may well get advantage of a person who is not
Acting in his normal day to day life as a businessman but rather as a
consumer of a commodity or service the businessman would provide
him (hence the ticket although a means to an end is an alluring bait).

I think there was a provision in the Unfair Terms Act 1977 along with
many other cases stating that businesses might well get into contract
only if there is PROOF of equal bargaining force.

So for the people who get free tickets to a concert, in reality they get
nothing, because that would be the paramount thing so they could
prove they just legally entered the live show. The ticket thus is the way
for the intellectual property to be created and not the end result.

Thats why there are the rights grab extortions. If only everybody knew
these guys would not say to professionals, "take it or leave it, there
are hundreds begging for that coloured piece of paper"

[Billy]