
I Got Banned from Photographing Arch Enemy - pmlnr
https://www.metalblast.net/blog/how-i-got-banned-from-photographing-arch-enemy/
======
ninth_ant
From my read, poor communication come contributed strongly to this mess.

The authors reply to band management was overly long winded when he just
needed to stress that he didn’t want his work being used by random commercial
uses, and that he offered them 100 to charity.

Instead of that he demanded money to charity from the band itself (!?) and put
the strongest emphasis (to my read) seemed to be about his rights. This
unnecessarily amplified the aggression, and triggered the band to exercise
their rights with the banning.

Everyone within their rights, everyone loses.

~~~
hughes
Offering to "explain the current state of the law" to someone in a giant email
seems like a really poor way to resolve conflict. The pseudo-lawyer language
seems almost designed to infuriate.

~~~
starbeast
Isn't pseudo though as he is also a lawyer. He may be far too used to writing
like that.

------
airwot4
Looking at this strategically it seems that the photographer simply didn't
expect the band and the sponsor to be so close. He desparately tries to
separate them into two entities (artist and commercial) when in reality
they're essentially two facets of the same brand.

It does seem that the band massively overreacted though.

I don't think this will play in their favour now that this has been posted so
widely. Apparently the photographer wants the last word on this.

~~~
detuur
Just because two businesses are close doesn't mean licenses are transferable.
If the photographer gave his permission to use the picture for self-promotion
(or even simply decided not to complain about it), that doesn't give them the
right to grant that permission to a clothing store they're very buddy-buddy
with.

~~~
matz1
Sure legality wise, that might be the case but nothing is ever black and
white. Like in this case, no wonder the photographer received adverse reaction
from the band.

~~~
gdpgreg
It's litterally black and white in intellectual property laws.

~~~
matz1
Not really, different judge may interpret the law differently.

~~~
cthalupa
You're literally just saying things, and saying them doesn't make this true.

Copyright law on this sort of thing is incredibly straightforward and
completely settled. This isn't like recreating the likeness of someone,
including their tattoos (another story popular in the past day on HN), this is
clear cut commercial usage of someone else's copyrighted work, and his
tolerance of non-commercial usage by the person photographed doesn't have any
impact whatsoever on whether or not a different entity has the ability to use
it to promote their clothing line.

This is an incredibly open and shut case with tens of thousands (probably
hundreds of thousands, actually) of cases worth of clear cut precedent.

~~~
matz1
You think so, but good lawyer can always make any seemingly straight forward
case to be not so straight forward.

------
causality0
Legally speaking, the photographer is completely within his rights.

The band is also within their rights to ban him from their shows because they
disagree with the way he uses his legal authority.

Personally, I find the idea that the photographer has more right to a photo
than the subject ethically repugnant.

If you came up, took a photo of me, and used it to make money on your
Instagram, and then sent settlement letters to people associated with me for
using it you'd be asking for a broken nose if I ever laid eyes on you again,
legal right or not.

~~~
frereubu
As far as I'm aware, in the UK, if the photograph was of you specifically -
that is, not as part of a crowd - technically the photographer would need you
to sign a model release, a legal document saying that you give the
photographer the rights to use the image for commercial purposes. The document
can stipulate a payment or that you give the rights for free. I can't imagine
the situation is very different in other jurisdictions that protect
intellectual property - but would be interested to hear from someone know
knows more about that, because my knowledge is only based on the first year of
a photography degree.

~~~
busterarm
Most venues (and almost certainly all large ones/festivals) have waivers
explaining that you're in a space where photography/videography is taking
place and that by being present you are essentially signing a release. That
would apply to the talent too.

------
barrkel
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. The photo is normally only interesting to
people who are interested in the band, rather than for the craft of the photo
itself.

Legally, the photographer in this story is correct. But I think he's dealing
in absolutes in a situation where the economics are strongly in the band's
favour. The band would be much better off with photographers that signed over
copyright and it's not difficult for them to get that, because they're adding
most of the value. The fact that they didn't, and permitted this chap to take
the photos he did, is IMO down to them not having had this experience before.
Now they have, and perhaps they'll be smarter about it going forward.

~~~
whatshisface
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.)

~~~
pjc50
Wait until you hear how the music industry treats session musicians...

~~~
sorum
That sounds like an interesting thread in itself. Please share some
highlights, or rather...lowlights.

~~~
techopoly
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)

------
dpcx
Having not heard of Arch Enemy before this article, it's too bad for them.
Their music is directly in line with my tastes (I watched about 30s of the
YouTube video linked). I'm a music fan that doesn't mind paying to purchase
albums or even go to shows. But because of their mismanagement of this
situation (which likely extends to many others as well), I won't be giving
them any of my money.

~~~
CuriouslyC
If you liked Arch Enemy, I suggest you check out some of the other melodic
death metal bands in the Gothenburg style. Dark Tranquility would my first
pick, Soilwork is pretty good too.

~~~
AsyncAwait
If we're doing band recommendations along AE lines, I'd throw in Barren Earth,
Amorphis and Omnium Gatherum and Insomnium as well.

~~~
Raffers
ne obliviscaris and wolves in the throne room are 2 other fantastic
atmospheric black metal bands.

------
ablation
Can’t say I’m massively surprised a mainstream metal band behaves like a
business. Shame they come across like a bunch of jerks.

~~~
devonkim
A lot of fans that were around years ago during the transition away from
Carcass are aware of their behavior and even Angela Gossow (former vocalist)
has basically admitted in interviews that they sold out (they weren’t ever
really an underground band though... so you’re more like a commercial pop
group, uhh) to make a living. To me, there’s nothing wrong with being up-front
that it’s about the money and if you’re enjoying the music so be it but nobody
into metal is surprised by this kind of behavior by bands doing the same money
grubbing things that bands making orders of magnitude more money are doing. I
think that’s the most shameful part of it all honestly - if you wanted to make
money playing music there’s way more options than metal. Heck, the former
keyboard player for Emperor quit metal completely, cut his hair, and did fine
in Norway with dance music as a solo artist. I think the guys in Beherit
literally went to dance music too.

~~~
CuriouslyC
Meh, if you are making enough to get by, doing what you love is way more
important than having a lot of money.

Ihsahn might rock sweaters and short hair now, but he is still making some
really dark metal.

------
Semaphor
My thoughts: a) doesn't IG have "repost" built in? In that case you'd probably
give them and their users a license to repost by uploading it there.

b) AE behaved like total jerks but they are a mainstream pop metal band, so
it's not really surprising.

~~~
whatshisface
> _AE behaved like total jerks but they are a mainstream pop metal band, so it
> 's not really surprising._

It's a little weird that they got so vitriolic in defense of a sponsor, having
no stake in it themselves. Not extremely weird, but a little weird.

~~~
pbalau
I find it terrifying how easy it is to influence people, basically, half the
internet jumped to the conclusion that the band is in the wrong based on a
single article, depicting only one point of view, witch conveniently leaves
out the fact that most likely the photographer signed an agreement allowing
the band to do whatever they see fit with the photos produced at the event.
Plus the thing happened 6 months ago and was surfaced at a very convenient
moment for both the band to not be able to react quickly and hit their bottom
line.

~~~
slededit
Its extremely uncharitable to assume he signed something. He even mentions in
his article that other bands _do_ require signing a license agreement to
photograph but this band did not.

~~~
pbalau
Can you please point me to the paragraph stating this? I have troubles finding
it

~~~
slededit
> In the past, artists like Taylor Swift, Lady Gaga, and even The Foo
> Fighters, have gone beyond merely assuming that they have this right,
> choosing instead to force concert photographers to sign contracts where they
> have to, quite literally, surrender all of their rights over the photos.
> Aware of the fact that most photographers are not exactly versed on legal
> terminology, that photo pits aren’t great places to read contracts, and that
> many photographers simply can’t afford not to shoot a big band, artists have
> been able to profit from the many photographers that, for whatever reason,
> end up signing their rights away.

~~~
pbalau
Thanks, forgot about that, but it doesn't imply he didn't sign such an
agreement. It's been vehiculated that in Nederland, a third party photographer
has to sign an agreement, that states the photographer retains the copyright,
while the artists retain the right to use the images as they see fit. Giving
these pictures away, for promotional reasons, to a small subset of close to
the band 3rd parties, like fan clubs and sponsors, sounds to me like fair use
of the right the artist has.

About how fair this arrangement is, you should remember that photographers
with an accreditation do not pay the admission fee for the event and for a 3
days festival this is quite a hefty fee, I payed about 600 GBP for 3 tickets
for Graspop festival.

------
JackFr
The photographer (and the rest of us) would have been better served with a
simple straightforward take down notice: "a photograph which I own is being
used or commercial purposes."

The clothing brand would have probably contacted the artist, assuming that the
band or singer had owned the rights since it went out on the singer's
instagram. Upon learning they didn't they would have taken it down or bought
the rights.

But know we all now what an insufferable prig the photographer is and how
unpleasant all parties involved are. If you're gonna be a lawyer, be a lawyer
not a morally preening victim.

------
vngzs
Site is down now, archive is here:
[http://archive.is/1mbNY](http://archive.is/1mbNY)

Edit: their webpage is back up for now, but I'm keeping this around just in
case.

~~~
pmlnr
video version:
[https://www.youtube.com/watch?v=iW1TRQeo7gk](https://www.youtube.com/watch?v=iW1TRQeo7gk)

------
al_chemist
Intellectual rights at its finest:

I made this photo, I own it! - photographer

I'm on this photo, I own it! - band

She wears my product, I own it! - props maker

Photo was made with camera I made - camera maker

That patch of violet is a trademarked color - Milka

------
matz1
Arch enemy itself in a way is also a businesses, so you let them use your
photo for free but not their sponsor? Legality wise you might be right but not
it's not surprising that you got backlashes from the band. In the this case I
support the band.

------
1337biz
It is much harder as a band to find a good sponsor than a good photographer.

Everybody is a photographer today and unless there is some value in the name
or style associated with the photographer, they are just replaceable.

~~~
pmlnr
> Everybody is a photographer today

Everybody has a device that can take photos - that doesn't make them
photographers. The difference between a seasoned concert photographer and a
fan with a phone is quite immense.

I don't argue with the sponsor part though, however, the new world order of
"sponsored" things is making me skeptical - see
[https://www.theatlantic.com/technology/archive/2018/12/influ...](https://www.theatlantic.com/technology/archive/2018/12/influencers-
are-faking-brand-deals/578401/)

~~~
CJKinni
A great example of how an experienced photographer is more than just a body
and a camera is contained within this story itself. The quality difference
between the photograph the guy took a decade ago and the one he took this year
was striking.

~~~
treis
Camera technology has come a long way in a decade too

------
raverbashing
Well, this goes to show that being technically correct only goes so far.

> “no band wants to have photographers on site who later send such threatening
> correspondence to monetise on their images.”

Not surprising. Photographer has the prerogative of producing copyright
images, they just "forgot" that taking pictures of concerts is half the story.
I'm not surprised the band acted like they acted, they probably get a lot of
those as well.

It's like the recruiters that find a CV on the internet then try to apply as
the person and charge a fee.

~~~
andrelaszlo
I'm surprised that a lot of people are missing the point that they also chose
to _use_ the image. If there are tons of much more talented but replaceable
photographers that are willing to give their work away for free, why did they
have to use his photo?

~~~
raverbashing
Correct, the commercial use was an issue.

------
ajnin
It seems rather odd that the photographer would expect to be able to benefit
from the work of the band, taking photos of their on-stage performance (which
is just as much an act of creation, if not more, as taking a picture), and use
the image of that woman freely, including to demand payment of royalties to
third-parties, while the subject of the picture should have no say at all in
the matter.

The legal aspect is what it is (although it would be interesting to analyze
exactly what the creative act of the photographer is here), and the reaction
of the band was overly harsh, but the photo wouldn't exist without the band
performance, so I feel like there should be some kind of shared right here.

~~~
Traster
The photographer didn't expect to benefit from the work of the band. He didn't
expect to benefit from his own work of taking the picture, editing it and
uploading it. He expected other people not to profit from his work, and when
they tried to all he demanded was they donate to charity. At no point did he
try and profiteer from this.

The fact is that subjects of pictures don't really have the right to refuse to
be photographed in public, they only have the right to prevent their image to
be used commercially- which is categorically no what this guy was doing.

------
chx
How come this one is on the front page when I submitted it more than 12 hours
before it at
[https://news.ycombinator.com/item?id=18766327](https://news.ycombinator.com/item?id=18766327)
?

Edit: and when I complain about stolen karma I get more downvotes. What a
weird place.

~~~
deadmetheny
>when I complain about stolen karma I get more downvotes

Nobody gives a fuck about who gets Internet points. Sometimes things reposted
and take off when they didn't the first time and there's not a lot you can do
about it.

