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An open response to Taylor Swift's rant against Apple (junction10.wordpress.com)
91 points by Hates_ on June 21, 2015 | hide | past | web | favorite | 49 comments

His point may be a good one but he does it a disservice by framing Swift's letter as a rant, which it very certainly was not.

Indeed, the way she used almost every other sentence to applaud Apple was the most telling bit. The fear that she could be slapped down for this felt quite apparent to me - I can't imagine what it's like for a new artist.

Agreed. I read her statement and I do not feel it was a rant.

The photographer is missing that the difference is that Swift is trying to maintain control of her image. The photographer selling the image is always going to have Swift in it. And if the image is taken in a private venue, then. well, photographers do have to get their subjects' permissions, which is not new. The photographer's work in this case is not purely valuable because of the photographers skill, but also significantly because of its subject matter.

Photographers only need to secure permission from subjects if the person is not in, or viewable from, a public place. If you don't have a reasonable expectation of privacy then there's nothing you can do about being photographed.

This is in the US and Australia, at least. There was some irregularity depending on state but AFAIK it's reasonably uniform terriotory now.

Then I wonder why concert venues have press passes, if the photographers are working from a purely public place?

Are concert venues public places?

No, they are not. (Unless the concert venue is on city-owned land such as a public park.)

Grocery stores, shopping malls, and hotel lobbies & conference rooms are not public places either.

The confusion about "public" stems from casual usage vs legal usage.

casual: "I can't be seen in public without my makeup and bra." In this case, "public" just means the opposite of "not at home."

legal: The boat dock is public property but the restaurant at the shore is private property. You can shoot photographs at the dock but if at the restaurant, if management asks you to leave because you're snapping photos, you are required to comply.

Frankly if Apple refuses to sell your music because you refuse to allow them to earn off of you for their free trial then Apple is guilty of coercion and needs to be slapped down.

I would cheer to see a suit against them for this action. Free trials are supposed to be at the expense of the company peddling a service, not the people who provide the goods the service profits on.

How is it different from any boring publishing contract that gives the publisher price control?

Refusing to sell someone's product is not generally considered duress.

Frankly. If that is what the contract says it's what you agreed to. Sell elsewhere if you don't like it.

Taylor Swift is actually in a position to do something about that. Instead she whined because she didn't like a contract after it was signed.

Actually, you're wrong, she's not "whining after the fact"

Taylor Swift did not agree to the contract. Hence why she is withholding her music.

Unlike many other artist, she holds the right to negotiate her streaming contracts directly.

I know it's been days, do you have a source on that? It radically changes the situation and my opinion.

Well its sorta self apparent.

I mean, if she had signed away control of her streaming rights, how would she ever been able to "pull her songs" off of iTunes (or Spotify as she did the previous year).

She would've been in violation of a contract otherwise, and would've need to seek remedy via the courts.

Why the Hell should such a contract be able to exist?

Any reply like this, that does not consider the differences between recorded music and photography of human subjects, is neither thoughtful nor genuine.

There is some kind of a point here, but it's ruined by the author's lack of perspective and desire just to land a gotcha.

Could you summarise the important differences as relate to the issue at hand?

Not jblow, but here are the major differences from my perspective.

The photographers are paid for their work upfront. They are not doing it for free, they just need to ask for consent before using the photos for any secondary purposes outside of their immediate project. Apple is not paying anything upfront and won't pay for any streams in the first three months a customer is using their service.

Taylor Swift also does not get to use the photos without consent from the publisher. Unlike Apple, she does not get to use them to make money or as a carrot to attract future customers.

Finally the photographer's art would not exist without Taylor Swift. I don't think it is unreasonable for her to therefore claim some joint ownership of the work. Unlike Apple which only plays the part in distribution of music and not the creation.

As seen in the recent update to the article, he is not paid upfront. Payment only occurs if and when that single contracted use is made.

Given there's no guarantee of publication and no up-front payment this is quite a different dynamic.

You are right, that does change the dynamic. However, I think that is more a dispute between the photographer and the publisher than the photographer and the musician. It isn't Taylor Swift's fault that the photographer agreed to do commission work without any guarantee of being paid.

The relationship between Apple and Taylor Swift is of distributor to artist. The relationship between Taylor Swift and a photographer is of subject to artist. That's pretty significant, even beyond the already-noted aspect of who is paying whom (and when).

I'm not sure I follow this.. The photographer's getting paid up front, right?

Summary of the agreement, as I read it:

-- photographer gets press access to a Taylor Swift show -- Taylor Swift grants rights to publish photos taken at the show, once, in a specific media outlet -- Once published, Taylor Swift gets a license to re-use the image for her own PR in perpetuity ( she couldn't put it on a t-shirt or album cover)

The photographer and publisher are trading free use of her image to sell papers, in return for free use of their photo to sell concert tickets. Seems like a fair deal to me...

> You say in your letter to Apple that “Three months is a long time to go unpaid”. But you seem happy to restrict us to being 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….

Seems like he's getting paid once, but would like royalties on top.

Read it again... he only gets paid if the photo is used by the media outlet specified in the contract.

If so then I don't see the problem. However, the document reads as if this is an agreement for photographers working for the media. But in that case isn't the photographer paid for the photos by the group publishing the photos?

Most photographers are self-employed and license their images for use by third parties. Even if he was an employee, the reason he gets paid is that his employer earns money from publishing rights.

Under almost all other circumstances, photographers own the rights to their work.

Which isn't true. One of my friends recently had some portraiture done for free, with the condition that the photographer owns the rights to the photos and can use them for marketing. Recently on HN there was a similar story, where a family had reduced-cost portraiture done so the photographer could maintain rights - the story was that those photos then ended up as part of the pro-life abortion debate, which they did not agree with. Taking commercial photos in a private setting usually means you've got to get permission of the subject.

This is where this photographer's rant falls down. Apart from the fake respect (it smelled too much of "gotcha!"), the photographer is missing that the human subject matter of his photos also have rights. Music doesn't have an analogue.

The photographer generally has rights to their own work except under "work for hire" arrangements (which doesn't just mean "got paid"). (That varies by jurisdiction, of course; until recently, copyright law in Canada held that the commisioner of a work of photography or a portrait held copyright. That section of the Copyright Act was repealed, and the law is now more-or-less consistent with US law.) What the photographer does not automatically hold is the rights to use a person's image for commercial purposes (advertising and the like). That requires a model release, and a model release, like any contract, requires consideration. Like, say, a discount or prints/files.

To be clear, photographers own the rights to the work they create. The reason deals like those you've mentioned exist is because photographers who want to use images to profit commercially often need the people pictured to sign a photo release.

Generally speaking, the "human subject matter" in the images don't have an abundance of rights, especially if the photographs are taken in public. Some places have "rights to publicity", which apply to people like Taylor Swift, who can expect to profit from photos of herself and so has a financial interest in controlling those images. This principle doesn't apply to the general public.

The photographer in this argument is comparing the behavior of apple, who seeks to make artists bear the cost of their free trial, with Taylor, who's licensing agreement prohibits photographers from selling licenses to their work in the manner that they usually do. There are a lot of valid perspectives on whether each of these beahviors is above board, but both are very much about a big entity acting to control and profit from the works of smaller artists.

The reason deals like those you've mentioned exist is because photographers who want to use images to profit commercially often need the people pictured to sign a photo release.

This is different to the linked article... how? The author wants to profit commercially from the person in the (theoretical) photo.

both are very much about a big entity acting to control and profit from the works of smaller artists.

A fundamental difference is that Swift's music is independent of Apple. A photo of Swift could not exist without Swift herself. Apple can't resell Swift's music without her permission, why should a photographer, usually given preferential access with these agreements, not have similar restrictions if not in a public place? If photographing Swift is that much more profitable than photographing the local no-name band, then part of that is due to Swift's own work; the photographer is working from the success of the subject matter; in literature this would be akin to a derivative work.

I do agree that there are a lot of different perspectives, but I just didn't like the 'smell' of the linked article. It gave a pretty one-eyed view.

The corporation is not what music is for.

I am a musician and I find apple music deeply disturbing.

Her whole statement just smelled funny. You typically don't get rich without being good at exploiting people.

Typically you only make broad generalisations when you don't know what you are talking about.

I see that people here aspire to become rich and don't want to think of themselves as exploiting others when they do, and they don't want to think of themselves as exploited right now.

And yet, I wonder how much of this crowd would vote to tax the rich because it's exploitational. That's called hypocrisy.

Like this guy can point any fingers. Photographers and musical artists belong to the same group- people expecting a perpetual payoff from a comparatively absurdly small effort.

You have no idea how much work is involved in becoming a creative professional.

If you think it's easy, try it.

Don't forget to let us know how successful you are.

I can both appreciate their work and not believe their profession deserves a free ride.

In what sense is getting paid for copies of a creative product any more of a free ride than app builders getting paid for downloads or web app builders getting paid for adsense impressions?

>comparatively absurdly small effort

Comparatively absurdly small compared to what? There are photographers risking their lives covering wars, and there are musicians practicing and working harder than any keyboard jockey...

And they're not the ones complaining, really.

I don't know. Have you heard of Marc Ribot, for one?

Actually some do complain, but no one hears them.

On average, I'd say that the ratio of financial payoff to "effort" in music or photography is much, much smaller than in, say, software engineering.

Most musicians are poor. A couple get rich, but not because of music sales but rather concerts and tours.

What weird stuff for people to say. Nothing in life is free... Successful people almost always have to work hard for it.

I agree, but society doesn't glamorize coding. I'd wager there are fewer people taking up software expecting to get rich than those picking up a camera or mic.

You mentioned a ratio, can you explain the basis to compare "effort" of a software engineer vs a photographer?

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