7 ms·

Almost all of the value of a photo taken close up at a concert like this derives from the band rather than the photographer. The photographer is infinitely more

• whatshisface 8y ago
  I see a lot of people in this thread that view band photographers as disposable chaff that don't deserve the same copyright protection as everyone else, but I doubt that anyone would want to take legal rights away from migrant fruit pickers in California. Migrant fruit pickers are very replaceable, so that doesn't add up. Edit: In response to the shadowbanned comment that I can't reply to, I don't think there is a line beyond which extremely poor economic negotiation power crosses over into reduced status in the legal system in any court system or even moral system in the world... Except for metal band photographers, apparently. (With the possible second exception of third world countries.)
  • Chris_Chambers 8y ago
    For your whataboutism to be valid, everyone in the world would need to have their own personal fruit replication device in their pocket. In that case, no, we really don’t need migrant fruit pickers in California anymore.
  • 1337biz 8y ago
    I am wondering - did they even wave their rights away for commercial use by letting that guy take pictures of them? The way I am seeing is that he is trying to make money off them without compensating them as his 'models'.
    • whatshisface 8y ago
      Well, the author claims that they never had any rights to the photo he took at all. They still could have used another photo, but they instead picked what they thought was the best photo (his), using it without even contacting him.
      • 1337biz 8y ago
        But he can't be taking pictures at a concert of people and bands without their consent and then try selling these pictures to brands for commercial use.
        • ghaff 8y ago
          The crowd doesn’t really matter but I would think the band itself would have publicity rights for any commercial (in the sense of marketing or promotional) use. The photographer could presumably sell copies, publish in magazines, etc. A press pass for a concert could have other restrictions I guess but the whole purpose of a pro photographer taking pictures is to sell them.
        • ozgurozkan 8y ago
          I am wondering why you feel this way. Legally it's wrong. Even under GDPR it's art. Photos taken for art purpose doesn't need any consent which also protects even street photographers.
          • detaro 8y ago
            parent explicitly was talking about not-art use: > try selling these pictures to brands for commercial use Also, GDPR does not have an art exception per se, but it allows member states to create them. Legality of street photography is a complex topic and viewed differently in different jurisdictions.
            • ozgurozkan 8y ago
              Taking a photo is a different action. You don't need a consent for it in public. Just taking a photo is the sole art purpose if you the aim is not distributing it. Selling those pictures to brands is a different action. Selling those pictures to the subject itself is different action. Using those pictures as a papparazzi is a different action. All of them is as complex as street photography. Legality of all photography intents viewed differently in different jurisdictions.
  • barrkel 8y ago
    I'm not suggesting taking legal rights away from the photographer. I already said I think the photographer is legally in the right. I don't want courts to switch things up, or legislators to change the situation. What I am saying is that the economics of the situation exist. They can't be wished away. Outcomes tend to follow economics, even if they're illegal, as the existence of black markets, forced arbitration, legal battles based on spending and might rather than right, etc. show. And sometimes the economics are morally superior to the legality, even when the legality is nice and clear. Part ownership of content production would be morally superior to the bright line clarity of copyright ownership. Ideally, it would reflect how much of the global culture is a part of content, how much is ideas floating in the air, and the multitudes of people who contribute to the gestalt of a moment. But the accounting is impossible. So the legality is simple, and sometimes it creates conflict. The answer is usually more law - signed agreements up front, etc. A copyright that accounted for value added - if it were possible, calculable without continuous auctions and comparisons against alternatives, which is of course impossible generally - would accrue mostly to the band (and, recursively, to people who influenced the band), I reckon. But I think trying to implement something like that is impossible, and like I said, I don't think things should change. Instead, the band should make photographers sign something first.
    • whatshisface 8y ago
      >Part ownership of content production would be morally superior Whether or not this is true, the band is transgressing a hidden rule that is actually more important than copyright. They are changing the deal after the fact. If they had required the photographer to sign away his rights, he would have had the option to find another band that didn't. By not requiring any signatures but then turning around and acting like they got them, they are essentially tricking everyone. The idea that you are not supposed to do this is both pretty intuitive to everyone, and also is more or less the fundamental axiom of contract law. I'd expect an anarchist metal band to be anti-civic, but not like that! ;)
      • barrkel 8y ago
        > They are changing the deal after the fact What deal is that? The way I see it, the photographer and the band each had different ideas of "the deal". The degree to which the deal "changed" is the difference between prior conceptions of the deal and the reconciliation when the conceptions came into conflict and reached a synthesis. The band thought they were creating something and thought they could merchandise it. The photographer thought he was creating something and thought he could stop someone else merchandising it. The photographer was legally right. I suspect the band is more morally right than wrong in an ideal world of copyrights - and I think copyright is a very imperfect concept - and I think they have the economic power to ensure their merchandise is legally sound in future, having learned this lesson.
  • pjc50 8y ago
    Wait until you hear how the music industry treats session musicians...
    • deleted 8y ago
      [deleted]
    • sorum 8y ago
      That sounds like an interesting thread in itself. Please share some highlights, or rather...lowlights.
      • techopoly 8y ago
        In the 70s, Clare Torry was paid £30 for providing the improvisational vocals in Pink Floyd's "The Great Gig in the Sky" on "The Dark Side of the Moon." Over the next several decades, she received none of the revenue earned from the massive success of this album. In 2005, she sued Pink Floyd and EMI for songwriting royalties, and reached a settlement with them. She is now credited as a composer of the song in modern releases of the album. Most session musicians probably aren't so fortunate. https://en.wikipedia.org/wiki/Clare_Torry https://en.wikipedia.org/wiki/Clare_Torry
  • geofft 8y ago
    "Legal rights" is a vague phrase. I certainly don't think migrant fruit pickers should be able to copyright their fruits! Copyright is a tool for giving a temporary government monopoly—a distortion of the free market—for the promotion of "science and useful arts". It attempts to emulate the market behavior of physical objects (like, oh, fruits) when the valuable work is easy to copy. I believe certain things about its appropriate use and the markets to which it is suited. That has little bearing on my beliefs about other markets or the value of free markets in general. I believe copyright is a bad tool to protect labor rights (just as I believe machine guns are a bad tool to protect labor rights); that doesn't mean I think labor rights aren't worth protecting. Besides, my actual belief is migrant farm laborers should be documented (i.e., we should have open borders, the historic policy of America back when it allegedly was "great") and unionized and receive a UBI and preferably live under fully automated luxury gay space communism. At that point copyright doesn't really matter, certainly not as a tool to protect fungible workers.
  • baddox 8y ago
    If migrant fruit pickers were claiming to have legal rights over digital representations of specific fruits, then I think people would have similar reactions.
  • lmm 8y ago
    Fruit picking is hard work. Photography is fun to the point that a lot of people do it as a hobby.
    • beokop 8y ago
      So is programming. Should clients be able to just take your code without paying for it?
      • lmm 8y ago
        I'm talking about what is the case, not what should be. At the moment people with programming skills are much rarer than demand for programmers. No doubt if and when that crosses over we'll see the bottom fall out of programmer pay.
• deleted 8y ago
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• CJKinni 8y ago
  I don’t think an experienced concert photographer is as substitutable as you’re claiming. Just compare the image from this photographer’s early concert photography to his recent work. It takes time and effort to get to a place where you can take good pictures like this. If the band doesn’t appreciate that experience, that’s their right. But, as the photographer discussed in the article, I suspect their decision doesn’t reflect the opinion of the broader music community.
  • whatshisface 8y ago
    It's also worth pointing out that they consciously chose his photograph to use in their promotional material, which means that out of every photographer that was present he is the most likely to be skilled. If the sponsor had used a random grainy cellphone picture my heartstrings would be a little more elastic, but they clearly went for the one they thought was the most professional.
• InGodsName 8y ago
  Wouldn't it be better to fly stealth drone into the concert which captures photos then sell it in under ground market to fans.
  • ozgurozkan 8y ago
    Haha, I know something like that :D
• gaius 8y ago
  Almost all of the value of a photo taken close up at a concert like this derives from the band rather than the photographer. Indeed, just like almost all of the value in a startup comes from the MBA bros with the “idea” and the engineers are infinitely substitutable. Wait, what?
  • barrkel 8y ago
    The value in a startup comes from finding a profitable seam of product market fit. It doesn't take an MBA to do that, but a stereotypical engineer isn't likely to find it either - it's all too common for an engineer to think that good engineering is what makes a good product, when in fact it's giving people something they want that matters. And a photo can be technically excellent, but if it's not of something interesting, it's unlikely to have broad interest.
• craigsmansion 8y ago
  The problem is now that everybody has an always available camera, everybody feels like a photographer, probably even a decent one. When it comes to explaining what makes a photo "good", there's the problem of it being a creative endeavour, so there are no strict guidelines. The point remains however, they chose his photo. Likely because it's a good photo: lighting, composition, pose, all work well, and these are more-or-less definable criteria of what makes a photo good. That's not an accident. Professional photographers know how to create the time and place for such photos to happen, unlike an average person with a camera. Good photographers cannot easily be substituted by a random crowd with phones, no matter how much they see themselves as "photographers". There's an art to being in the right time and the right place. It's not that a crowd can't produce good pictures, it's that a professional photographer can produce them with higher frequency and with intent. It could be just as easily argued that the "craft of the photo" here conveys a dynamic that is very favorable for the band (which is probably why they chose it), urging people who only peripherally know the band to check them out because they connect with that dynamic, so the "craft" here is more valuable than the subject.
  • barrkel 8y ago
    > It could be just as easily argued that the "craft of the photo" here conveys a dynamic that is very favorable for the band (which is probably why they chose it), urging people who only peripherally know the band to check them out because they connect with that dynamic, so the "craft" here is more valuable than the subject. It can be argued - you've just argued it - but I think it's a stretch. Selling something to an audience you've already built is more valuable than a marginal increase in audience, especially if it's a static visual and the draw of the topic is dynamic. If the photographer had his own distribution channel, and could put the photo in front of lots of people who don't know about the band, then your argument would make more sense. But then it's a marketing value proposition, not a technical photo quality value prop. Oh and I agree that the photo isn't worthless. It's just not a strong bargaining position relative to the band, and trying to leverage law to get a better bargaining position isn't likely to turn out well, and there's no reason to believe that it won't turn out even better for the band in the future.
    • 8y ago
• xoa 8y ago
  >Almost all of the value of a photo taken close up at a concert like this derives from the band rather than the photographer. The photographer is infinitely more substitutable. You are by your own definition completely wrong. If the photographer is so substitutable and adds so little value like you argue, then they could have used anyone else including their own. Yet in actual fact they (and more to the point a clothing sponsor engaging in commercial advertising use) did not do that, they chose his. However many hundreds/thousands of people with cellphones and other cameras, however many hundreds of thousands of random people in the country they could have just given a camera and had a specific official hired "photographer" to take photos that they'd own the copyright to, and yet they didn't and just took someone else's without asking instead. Again by definition that means that they found his particularly valuable amongst everything else, and didn't find the cost/benefit right to hire somebody random for minimum wage to photograph for hire. This isn't some gray case whatsoever, there is no fair use here, it's not fans, it's not some perpetual copyright shenanigans, or any of the other many issues with IP. It's a company & band violating copyright immediately and using a photo for advertisement getting snooty about being asked to give 100 clams to charity. That's a pretty amazing thing for you to defend. >The photo is normally only interesting to people who are interested in the band, rather than for the craft of the photo itself. You can say "normally" but we're not talking averages, we're talking a specific case where the photo was "interesting" to a for-profit corp for advertising purposes. >But I think he's dealing in absolutes in a situation where the economics are strongly in the band's favour. "Absolutes" would mean a immediate c&d or for that matter a demand for restitution of at least the mandatory minimum statutory penalties. "If you want to keep using it please either pay me the normal amount or give 1/5 normal amount to charity" doesn't seem so bad to me at least. It was entirely their blunder and sense of entitlement. And the bit about hypocrisy for a "anarchist" metal band that also complains about infringement of their IP are pretty on point too if you want to go beyond legalities.
  • baddox 8y ago
    Your argument doesn’t make sense. The fact that they chose some specific photograph doesn’t disprove that photographers are largely substitutable. Of course some specific photograph had to be chosen. If you chose no photograph then the issue wouldn’t exist. Choosing a bunch of photographs and blending them together is nonsensical. So yes, one photograph was chosen. But that doesn’t mean they couldn’t have chosen a different photograph. The only difference would be that a different photographer would be writing the same article about their interactions with the band and sponsor.