On the subject of interesting IP spats, here’s one that’s worth smiling (or frowning) over. You may know that Taylor Swift recently complained in an open letter to Apple about its using musicians’ work without compensation during the 3-month trial period of its new music streaming service (which, by the way, debuts today). Swift wrote:
I find it to be shocking, disappointing, and completely unlike this historically progressive and generous company…. This is about the new artist or band that has just released their first single and will not be paid for its success. This is about the young songwriter who just got his or her first cut and thought that the royalties from that would get them out of debt. This is about the producer who works tirelessly to innovate and create, just like the innovators and creators at Apple are pioneering in their field…but will not get paid for a quarter of a year’s worth of plays on his or her songs.
Of course, she’s saying that Apple is using other artists’ copyrighted works for a three-month period without paying royalties or license fees. Apple capitulated and “voluntarily” agreed to compensate artists during the trial period. Now, it gets interesting. A photographer, Jason Sheldon, caught wind of Swift’s efforts and in an open letter to Swift remarked that she was a hypocrite. Sheldon wrote that if Swift meant what she said about musicians then she should re-examine the way she treats photographers. In the same post, Sheldon cites a copy of one of Swift’s company’s “Concert Photo Authorization Form” and points to paragraphs that grant Swift “free and unlimited use of our work, worldwide in perpetuity.” Sheldon writes, “you seem happy to restrict us to be paid once, and never being able to earn from our work ever again, while granting you the rights to exploit our work for your benefit for all eternity…” He also explained to Business Insider that concert photographers typically gets paid only if the photos are used.
In response, Swift’s UK representative told the Business Insider that Sheldon misrepresented the contract and that it “clearly states that any photographer shooting the 1989 World Tour has the opportunity for further use of said photographs with management’s approval” and that the contract did not transfer the copyrights to Swift.
That’s not the end of it. About a week ago, a UK – based freelance photographer, Joel Goodman, tweeted a copy of the new contract for Swift’s latest 1989 World Tour. That contract restricts photographers to one use of any photograph taken at the concert and prohibits the photographer to use such photographs for any other purpose. Conversely, it grants Swift’s company perpetual, worldwide rights to use the photographs. And then the kicker, it gives Swift’s company the right to destroy a photographer’s equipment should he or she breach the authorization!
Does Sheldon have a point? Are music and photographs artistic equivalents? Is Swift taking advantage of unequal bargaining power over artists just as Apple did? All good questions. We suspect that we’ll hear more about this….
–Adam G. Garson, Esq.