(Photo above:  Bert McCracken, The Used – Ace of Spades, 2012)

Just a warning, this blog post may get a bit rambling (much like my last few posts), but it’s all very spur of the moment stuff in my head right now.  I’m also very tired.  So just hang in there, I promise!  Also:  I’m not a lawyer, so take none of this as legal advice.  Just sayin’.  Also also: I’m not trying to talk shit, or call anyone out on this behavior, it’s all just anecdotal.  This has probably been a long time coming.

Anyways.  Just a short while ago today I started thinking about prints.  Selling prints of live music photography, specifically.  It’s something that every photographer wants to do, to be honest.  To have someone pay for your image to hang on their wall is a great compliment as an artist, and it helps us put food on the table at the same time.  It’s a win-win, right?  You’d think so, but in all honesty it gets a bit sticky from time to time.  Here’s what I mean.

I started up a Photoshelter account over a year ago in an effort to sell some prints to help recoup the cost of my gear (as well as hopefully fund future upgrades and new purchases).  I chose Photoshelter after looking around at Smugmug, Zenfolio, and other sites.  Photoshelter just seemed to be the best fit for me; I didn’t want a full-on portfolio as I already have that separately, but I wanted something that looked good, offered fulfillment automation, lots of print options, and the ability to accept credit cards.  Long story short, I set it up and uploaded some high res files and just let it go.  I haven’t sold much through it, but then again that’s partly due to the fact that I haven’t uploaded but a tiny sliver of my older photography from around that time.  I haven’t really updated it much, and I also haven’t really promoted it.  But that is, in turn, partly due to an experience I had from one of my few sales from the site.  It was probably my first experience with the ugly business side of the music photography scene.

Here’s what happened.  There was a local show, and I thought I’d go out and shoot a bit.  There were a band or two on the bill that I’d seen before and enjoyed, and then there were a few that I wanted to see based on the recommendation of a buddy of mine.  Shot five of the six bands on the bill (I don’t remember if I stepped outside, or if the band cancelled), all as personal work, basically.  Figured I’d kill some time hanging out at the show, get some practice in with my newly-acquired 7D, and possibly get some cool photos for some cool local bands.  It was a great show, had a lot of fun, got some cool photos.

I ended up uploading the photos to Facebook, made the bands aware of the existence of the photos, etc etc.  Some of them went on to use them on personal profiles and band profiles, normal stuff really.  Then I decided to upload them to my prints gallery.  Not much activity or views on it, but one band in particular did start to receive some good views above the others.  Someone shortly thereafter bought a print!  I was stoked!  And this was actually only 6 days after the show.  The print was ordered, paid for, and then fulfilled and shipped out (all via Photoshelter, very cool!), no issues, customer was happy, and I was happy.  Done deal.

So fast forward just after the print was delivered, about a week later, and I receive the following message (with identifying information removed):

Lou,

It’s [Dude], the singer for [This Local Band]. I wanted to thank you for the pics you took of us at [Local Venue] but after some serious discussion in the band we don’t feel comfortable with you selling those pictures without our written consent.

Would you please take them off your for sale site?

We have no problem paying you for a shoot when we’re ready OR working out a deal with you to sell them. But without an agreement we can’t get behind you selling them.

Thanks man. We will be in touch about paying you for promotional shots.

[Dude]

This actually really upset me for a good while.  I mean, I did all this for the band–shooting, editing, delivering photos for FB use if they wanted to–and then when someone else outside of the band decides that my work is worth some compensation, the band gets upset.  Why?  I guess they thought that since it’s their band, they should control it.  And that would be absolutely fine if the product in question was an album I was selling wherein I covered one of their songs.  That right there is a legitimate claim against infringing upon intellectual property.  I would then be legally required to cease selling the album, or workout a licensing deal with them (provided they could prove copyright in court).

What CANNOT be done, however, is control an image of a person in a public space (for these purposes, venues count as public space as they allow the general public to enter), as long as it is not used in a defamatory, endorsing or commercial nature.  What that means is that I cannot, oh, say…  Photoshop penises onto the images.  Or caption them with something like “I eat shit for breakfast!” similar to an image macro.  Or use them to state that “So-and-so endorses digitalnoise|photo”.  Or license/sell/transfer rights of the images for commercial purposes, like advertisements, packaging, catalogs, etc.

What CAN be done is to sell the photos as “fine art”, basically.  You have to abide by the rules above, but you can legally sell prints.  Hell, I can walk up to ANY person on the street right now, snap a picture, run back home, and upload that photo for sale as a print without legal issues.  This also includes the ability to license/sell images to editorial magazine articles, web articles, wire service, etc.

So, with that distinction drawn, and this request put forth by a band that is known in the scene to an extent, however not a big band even for loose standards around the local scene, what’s a photographer to do?  On one hand, you can stick with your legal rights as a photographer and artist and tell the band that you will kindly disregard their request and continue selling the prints as per your legal rights, or you can be Good Guy Photographer and take the images down at their request.  One method has the possibility of earning you some extra money at the cost of your reputation in the scene, whereas the other option you save your reputation (possibly even build it a smidge), but look like a pussy at the same time and make less money.

It’s a really tough call.  Especially if the band is a smaller band (I haven’t really heard much of anything from this band since a year ago, actually.  Sadly, they were a great band.), as opposed to a major player in your scene or a national act.  It all comes down to whether you value your reputation and connections more than the short term money that you MAY make.  Hell, the band might actually post about the ordeal and say “Hey, this guy’s selling prints of us despite our polite request to pull them down.  Fuck this guy!”  And poof!  Your name is now basically ruined with the fans of that band.  Personally, I felt that it was in the best interest of my reputation and my future of shooting and working with bands, venues, and other industry types to honor their request.  We’re all in this business as a business, and while I understand where they were coming from, I don’t think that under the circumstances it really harmed them to allow me to continue selling prints of them.

I sent the following reply back:

Hey [Dude],

Photos have been pulled down from the print site for now, pending further discussions and/or legal clarification of rights of use/ownership.

Take it easy man, let me know if you have any other questions or concerns.

Lou

To which he replied:

Thank you for your understanding man! We will see you around town next we play.

In his original message, he commented on a possibility of working out a “deal” to continue selling prints of their band, and also future paid work.  I responded with a friendly but curt statement hoping to foster some discussion with the band, and I didn’t even say anything about them using my photos on their Facebook page (turns out they’re also using them on their Reverbnation page, as well as a few other places I’d imagine).  Out of the two possibilities between discussing licensing/rights of use and/or future paid work, guess which one took place?

Neither.  Obviously.

Here’s the deal.  Most bands are broke.  They’ve spent their money on gear, recording, gas, merch, etc.  And if they actually had enough money to get a good deal on merch, and their fans actually have money to buy the merch, and they pack venues and actually get paid for their shows, they’re almost always cheap.  Very cheap.  So this promise of “future paid work” usually never materializes.  It’s a bummer, because most of the time these bands end up with subpar photography, horrible album art from aforementioned subpar photography, and their Facebook band page is littered with subpar fan photography from cameraphones and cheap point and shoots.  I’m not saying that I’m the greatest photographer around (because I’m seriously not), but I do like to think that I produce images that shows the band looking as good as is possible in the given situation.  That’s actually a rather valuable product, despite what many people think these days.

Anyway, I’m getting off track.  I said I’d ramble, didn’t I?  Right.  So, here’s the predicament we face.  Be the nice guy wimp, or be the asshole to make money in the short run (most likely).  I can tell you right now that I will always fall to the nice guy side of things.  That’s just how I am, in general.  Doesn’t mean I don’t want to tell them to jump up their own ass from time to time, but it’s usually not worth it.  What I WILL do if I get any more of these sorts of requests is to link to this article to start, give a brief rundown of paid options, and then request that the band cease using any and all of my photography on any of their web presences.  I believe that’s fair enough.

I stated before that I didn’t believe that with the circumstances given, my selling of prints of their band didn’t harm the band in any financial or image-based manner.  And it really didn’t.  It actually benefited them more than they believed.  If I sell prints of the band, the customer has this awesome looking photo on their wall at home, work, whatever.  People ask about it, they’re going to say “Oh yeah!  It’s this band I really love, check them out!” and then they hop onto le internets and show off the band.  Every time someone looks at that fairly large 12″x18″ print, they’re going to think about that band.  Possibly bounce over to Facebook to see what the band is up to.  Post on FB a link to a Youtube video.  Who knows.  Either way, that’s some pretty powerful promotion right there.

What actually harmed the band, in my opinion, was requesting that I pull the images down.  Once that happened, I basically didn’t care to deal with them anymore.  Never went to another show, never posted about them, blah blah blah.  Not because I disliked them afterward, but I just didn’t really care, either way.  Photos were up online, out of my hands, and can’t sell prints.  Nothing left to do, really.  That said, I did really like the photos I shot from their set, they were some of my best up at that point, and still hold up in my book.  Had I left them up for sale, who knows, maybe more people would’ve bought prints.  If that’s the case, I definitely would’ve made a point to call attention to their shows, and would’ve gone out to shoot them more often, would’ve talked to them more.  Who knows.

What I do know is that this is one of the many reasons why I stopped shooting for free (outside of my own personal work).  I had believed that the possibility of subsidizing my costs with the fans’ money rather than the bands was a win-win for everyone involved.  It still is a valid avenue for income, but I’m just hesitant to put more work up there and have more bands get upset.  I don’t want bands to think that I’m going out and just shooting willynilly for my own profit.  But, I do need to earn money off of what I spend my time doing.  Just like the bands.  And if the band wants to license an image to sell via their own mechanisms, I’ll be glad to license the image to them.

It won’t be cheap though.  It won’t be a rip-off, but it won’t be cheap.