Text by Renata Carvalho
We are in a new era in many ways; in the past, promoting an artist was done through record labels that had a team of professionals specializing in every little aspect of selling an artist to the public. The distribution of the produced material was done in magazines, radio, and television. Coverage of shows was done by professional photographers who sold their photos to news agencies.
Everything flowed perfectly until the arrival and popularization of the internet, which led to the subsequent emergence of new means of advertising and information sharing, including information about artists and their activities.
MTV is dead, but artists of all genres use YouTube to gain – and maintain – an audience, sharing their videos on the platform, which are often downloaded by third parties and reposted on other accounts, or even other platforms. With a smartphone, a fan can get a photo good enough to elicit a "wow" from their Instagram followers and other friends who repost the photo on their own accounts. A professional photo from a rock festival posted publicly on a Facebook profile can be turned into a meme and shared by thousands of people who don't even know each other.
We have never had so much information around us, nor have we obtained it so easily. While this is great for those who consume the available content, the situation is quite different for those who produce it.
These two facts create situations today that would have been unthinkable in the previous dynamics of show business: on the one hand, the photographer's activity remains essentially the same; on the other hand, the visibility of their work has undergone a fundamental change, which often harms their rights as the author of their works. This has led to several complicated situations involving disrespect for photographers' copyrights, even if unintentional or innocent.
A black and white image
A relatively recent case of copyright dispute occurred between the band Arch Enemy and photographer J. Salmeron , also involving Thunderball Clothing, a clothing store that sponsored the band. A photograph of Alissa White-Gluz taken by Salmeron went viral and was reposted by the company that created the outfit worn by the vocalist at a European festival. The photographer sent an email to the store, informing them of the copyright infringement on the photograph and suggesting a symbolic donation to an NGO for the photo shared on the store's Instagram. The store, in turn, forwarded the email to the band, whose manager contacted the photographer but failed to reach an agreement between all parties involved. This situation generated immense confusion, culminating in serious accusations from the band's manager against the photographer and vice versa, the closure of the clothing store , and numerous death threats made by a mob of angry people against the band, the photographer, and even the store owner. A true horror and an example of a situation out of control.
By now, some may already be convinced, while others still wonder: who was right in this story? We're not interested in deciding that, but perhaps it's possible to say that absolutely no one acted in bad faith. It's much more likely that things reached such absurd proportions due to something absolutely commonplace in human relations: a failure of communication on all sides. The situation probably escalated due to two additional elements: the lack of broad debate on the subject, which, despite its low visibility, occurs frequently in the advertising world like a bomb out of sight but always ready to explode; and the internet, a medium that, by itself, spreads any information, whether explosive or not, like wildfire until everything turns into a conflagration.
Would it be accurate to say that artists interested in promoting their image to the widest possible audience are exploiters of others' work, or are they simply people interested in not interfering with any sharing of their image by third parties – which is, in fact, difficult to control, given how information circulates today? And what about fans, sharing and editing photos of their idols on fan pages and personal Instagram accounts simply for the pleasure of displaying an image they consider beautiful of people they admire? How harmful is this to the photographer? And the photographers? Are they mercenaries who stalk fans and innocent people, charging exorbitant prices for each click of something as simple as a photograph?
The activity of photographers
A photograph of a music festival, for example, takes only a moment to capture, but hours of preparation are involved, ranging from the photographer's technical training, through the purchase and preparation of the equipment used, obtaining accreditation to cover the shows, traveling to the venue, choosing the framing of the photos, the shutter speed and ISO, and all the other intellectual activities involved in creating that image as art, and not just as a mechanical representation of a random moment – something that a security camera or artificial intelligence would do. And all this is sometimes done under scorching sun, a storm, or even a combination of both.
It is evident that all this work has a cost, and that precisely for this reason, the result of it also has a cost. Photography, like a work of art or anything created by man, implies patrimonial and extra-patrimonial rights. Its authorship can be defended or questioned, and it can be sold for various uses by whoever buys it.
No one simply buys a professional camera and walks into concert venues photographing major artists. The press area not only has restricted access but is also accessible for a limited time, which certainly impacts a photographer's ability to gain access and obtain the best images in a short period of time in a space shared with other colleagues.
Being affiliated with an agency or media outlet is one factor that separates a professional photographer from an amateur; being associated with professional bodies and possessing an identification card – with a professional registration number – issued by the relevant union, are others. Many photographers therefore need to create their own news website in a highly professional manner – as did the aforementioned J. Salmeron, who runs the online magazine Metal Blast .
In Brazil, photographer Carlos Pupo has a similar story – active since 1998, he created the Headbangers News , where he posts not only his photos but also news and articles about music and events in the field. The similarities don't end there: Carlos has also been a victim of the misuse of his photos, being compensated by the company that improperly used his material without permission and without giving him due credit: “I had to sue a website for using my photos without authorization. At the time, I sent an email demanding payment per photo; they used six photos, and I charged the standard price, because we have a price list from ARFOC, and then the guy was very arrogant, treated me badly… So I thought, 'well, I'm within my rights,' because it's not just a matter of giving credit, nobody works for free. I had to file a lawsuit in the Small Claims Court, and we reached an agreement; they paid the amount in the end, and you know what's funny? They had to pay the initial amount I asked for, plus my lawyer's fees. If he had agreed amicably… And I was even willing to pay in installments, to make a more relaxed agreement… But just because of the attitude of the person who assisted me, I decided to do it,” he says.
People seem to expect photographers to work in exchange for exposure. While it's certainly desirable to have your name mentioned and associated with well-done photographs, it's important to remember that exposure doesn't pay anyone's bills. Taking the global situation during the coronavirus pandemic as an example, which practically prevented any social event from occurring and consequently being recorded, one couldn't expect photographers to survive the period simply because someone shared some photos of a show that took place before the pandemic in July 2020, guaranteeing them that visibility (and that's assuming they were given proper credit for the photo). An unpaid photographer who does recurring work already struggles to make ends meet at the end of the month; a photographer who is only remembered for the aforementioned exposure and doesn't take new photos suffers even more… Defending the interests of these professionals becomes even more relevant.
What sounds to some like an exaggerated reaction should be seen as the only means of defending the activity that is their livelihood: the photographer lives from what they create, and if they stopped charging for their services, as any other self-employed professional dependent on their own work would do, how would they live? An architect must charge for their projects, a lawyer charges for defending the interests of their clients, a dentist for the treatment they provide in their office, and a photographer for the photos they take of what happens around them and that is of interest to society or a part of it. What is being defended is, in fact, the right to have their work remunerated as any other work is, as guaranteed by law.
Law versus technology: a relationship out of sync.
Brazilian copyright law is broad and quite protective of the interests of artists and content creators in general. Its only current problem is that it was drafted well before the popularization of the internet, and logically it doesn't provide many solutions for situations caused by tools created long after its drafting, as noted by the lawyer specializing in the area, Dr. Ana Clara Alves Ribeiro, in her article about reposts on Instagram :
“The Copyright Law dates from 1998, a time when social networks in the form we know them today barely existed. In fact, this isn't even a case of updating the law. Interpreting the law, in most cases, is usually sufficient. But interpretation can be quite subjective. Furthermore, reality changes faster than the law can predict. Concrete cases raise issues that challenge our perceptions about the proper or improper use of works protected by copyright.”
How can you prevent a photo that went viral on social media without its author's watermark from being exponentially shared by new people who are completely oblivious and ignorant about who the original creator of that image or meme template was?
It is important to emphasize that the misuse of photographs does not constitute a crime, but it is nonetheless wrong and illegal under civil law, in any situation that occurs. The law explicitly guarantees the author of an image the right to have their name associated with it, as well as the prerogative to authorize its use for any purpose or activity whatsoever, and to charge for it – with legal action possible in civil court against anyone who disrespects these rights, resulting in a judgment ordering payment of the value of the photos, compensation for moral damages, and even the application of a fine for non-compliance with any court order.
Another relevant point is that our legislation does not include the concept of fair use . Furthermore, there are various types of licenses created with varying degrees of freedom of use and editing of images, and only an individual verification of the photos can determine which license corresponds to a particular image one wishes to use.
In practice, there is a noticeable immense tolerance among photographers towards a growing legion of fans sharing images of their idols. This tolerance stems either from knowing it's impossible to control this type of information circulation, or from considering the biggest problem to be the use of images for professional profit – profit that will never be shared with those who helped obtain it through this uncredited, and even less remunerated, work of providing photographic material for economic purposes.
Although tolerant, they should not be treated with disrespect; while the law may seem outdated by custom, ethics and common sense are timeless. It is up to the entire show business community, including fans, to open this debate in a healthy way and seek solutions for the current reality.
So how do you share someone else's photo on the internet?
Let's say you want to become the model fan, receiving a gold star for good behavior on social media regarding copyright issues. Follow these steps:
- Find the source – The first thing to do is look for the photographers' individual portfolios. Professional websites, Flickr accounts, Instagram, Facebook… Always use the original image for two simple reasons: besides clearly identifying the author, you will also have the image with the best resolution, compared to another one that has been downloaded, saved, edited and reposted countless times, with increasingly lower resolution.
- Ask permission to use the image (and use it exactly for what you asked for, if you receive it!) – It's better to ask permission before a problem arises than to apologize afterward. If you want to edit the image to create artwork, explain why. And if you receive a "no" as an answer, accept it. Seriously, look at the second point discussed in this text. It's not worth it.
- Always credit the photographer – Regardless of whether you received permission to use the photo, cite the name of the person who took it. This is because the person's financial right to allow others to use their photo without charging is one thing; the non-financial right to be recognized as the creator of that image is another. This right can never be relinquished, therefore the obligation to respect it is equally unavoidable.
- Reposts aren't exactly fair play… – You didn't ask for permission, but in return you reposted the image with the photographers' logo, so you didn't steal anyone's work, right? Wrong. Reposts don't change the fact that the authors of a photograph had – and always will have – every right to object to someone else making their work available anywhere other than where they originally created it.
No matter how much is said, the truth is that the subject is far from exhausted. There are cases where people simply use photographs whose authorship cannot be attributed due to lack of knowledge about it, accompanied by a notice that the photo belongs to third parties and that this person holds all rights to the photo. In practice, a simple "photo by: ?" corresponds to this warning – which still does not eliminate the infringement of the law, but at least demonstrates good faith on the part of whoever shares the photograph.
It is up to the entire community involved in promoting artists and events to have a healthy discussion on how to handle the issue in a way that does not harm professionals, nor stifle the activity of fans who seek to promote or simply express admiration for their idols.
