What are Photographer’s Rights in Celebrity Photos?

Taylor Swift once again made headlines this week related to music royalties.  Earlier this week, Taylor penned a letter to Apple explaining why offering their new music service free for 3 months hurts musicians.  She encouraged Apple to rethink this policy. Surprisingly, they did.

Shortly after Swift’s blog post, read HERE, Apple responded saying that even though the music service would be offered for free for 3 months, the company will still pay musicians royalties.  The music community rejoiced.  Independent artists sent virtual high-fives her way.  And, yesterday, Swift agreed to allow the 1989 album to be streamed on the Apple Music service. Taylor is praised, once again, for smart business acumen.

But, as most things go, no good deed goes unpunished.  Almost as quickly as Tay Tay’s (that’s what we call her in The House of Saucier) blog went viral, another blog post surfaced from a photographer.  Jason Sheldon claimed Taylor’s views expressed were hypocritical because she does not allow photographers to make money from photographs of her.

Sheldon stated, “I applaud it. It’s great to have someone with a huge following standing up for the rights of creative people and making a stand against the corporate behemoths who have so much power they can make or break someone’s career.” In his post, Sheldon provided a copy of a release Swift’s company provides and pointed out two paragraphs.  He states those two paragraphs gives her all the control without the ability to relicense the photos himself without her permission.  Sheldon’s viewpoint is that Swift is limiting his ability to earn royalty revenues just as Apple was doing for musicians.

One especially pointed statement he made said,

“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. How are you any different to Apple? If you don’t like being exploited, that’s great — make a huge statement about it, and you’ll have my support. But how about making sure you’re not guilty of the very same tactic before you have a pop at someone else?”

You can read the entirety of his post by going HERE.

With all due respect to Mr. Sheldon, he needs to hire an intellectual property attorney and someone to give him some business advice.  Let me see if I can help.  On its surface, I can see where Sheldon is upset.

There are three points where I think his argument of Taylor’s hypocrisy fails.  First, outside of copyright law the right of publicity with Taylor’s image is very much in play.  Second, there is no work made for hire language which would give Taylor ownership in the photographs.  Sheldon retains all ownership rights in the photos he takes.  Third, if you are not adequately paid up front for your services, and are simply taking photos on the hope someone wants to purchase them, then how is your business model Taylor’s responsibility?

The language does restrict how he can use Taylor’s image.  Because her image is encapsulated within photography, the photos do have some limitations.  The release/permission to photograph states he cannot sell images without her written permission.  Guess what Mr. Sheldon?  Celebrities have the right to say how their images are used, written in a contract or not.  It is called the right of publicity.

For instance, what if a company that produced adult films wanted your photography to include in their packaging?  Wouldn’t Taylor have a right to say what her image (and her now developed brand) is associated with?  Couldn’t that hurt her future career if her image was associated in such a way that it looked like she was endorsing the business?

See also, Imagine Lennon Endorsing a Business and Hollywood Celebrities in Books

To my second point, Sheldon owns the copyrights in the photographs.  There is no language in the release indicating Taylor owns the photographs.  It simply states she has the right to use the photos.  There is no language indicating Sheldon transfers rights to Taylor.  Specifically, there is no language stating the work he does is a “work made for hire,” which would also transfer all rights to Taylor as the employer.  Sheldon in a P.S. to his original post indicated this.

In his P.S. Sheldon also addressed my third concern.  He indicated he oftentimes is not paid to take photographs and is only paid once he licenses the photographs.  The releases allows him the one time right to license the photographs to a news outlet, but that is not sufficient enough for Sheldon.

Sheldon stated, “When I’m not allowed to do anything else with the photos that means I’ve incurred expenses to work, which I can’t recover. Therefore preventing me from licensing my photos to more than one publication, or even (as later versions of this contract stipulate) preventing me from using the images for my own self-promotion in a portfolio etc while they can use them without licensing the usage is highly unfair and unjustified.”

Sheldon needs to think about adopting a new business model.  If he has upfront costs that need to be recouped, then he should explain he will not work until a certain monetary threshold is provided.  I know plenty of freelance photographers who are paid on an upfront basis.  I am sure he would argue this is “industry standard.”  But, if this is what you are willing to accept, and you are part of the industry, then you are part of the problem.  Just because his current business model does not make sense for him does not make it Taylor’s problem.

It should be pointed out that while Taylor has the final say-so in how the photos are licensed, there is really nothing on the face of the release indicating the answer would be “no” should a request be received.  It has been my experience artist want their images out there and used.  The release simply states the photographer must ask, which I think is more than reasonable.  Personally, I do not want my image associated with brands or used in a commercial way unless I say it is okay.

Way to go Taylor.  You’re building an empire.  You’re making smart business decisions for your image and for your future music career.  This intellectual property attorney thinks your release is more than fair.  Keep being you!

Are Taylor’s demands too overbearing?  Is Mr. Sheldon fair in claiming hypocrisy because he is not given unlimited permission to use the photographs of Taylor in any way he chooses?  Take part in the Comments section below and Stay Tuned In!

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