The music industry likes to claim how valuable their copyrights are one day and then claim that your copyrights are worth next to nothing the next. They try Hip Hop one day and then Hop Hip the next. It’s the ole Hip Hop Hop. In this column we’ll discuss that great proverb, “turnaround is fair play”. The tactics and strategies used by the recording industry can be turned around and used against them.
But before we go there, here’s a quickie photo trivia question:
What do Andy Warhol, Jim Marshall, Jay Maisel, Annie Liebowitz, Richard Avedon and Robert Mapplethorpe all have in common?
Answer: They all created well-known and beloved record album covers.
For those of you who never experienced a rotary phone and have never owned a record nor even shopped for music made out of vinyl in a record store, here is a full century of music packaging history in just a few paragraphs.
In the early 20th century, the first commercial records were Edison’s sound cylinders, which were quickly replaced in time by flat records of various diameter. The records scratched easily and had to be shipped and sold in simple packaging, which most often was just plain paper. Album covers into the 1930s typically had all of the creative elements of a brown paper bag with perhaps the name of the artist or record company visible.
In the late ’30s Alex Steinweiss was hired by Columbia Records and as legend goes, “cover art” was soon born. Jack had the pleasure of meeting Alex years ago, who told him the reason record companies allowed him to be creative with the album covers is simply that it increase sales. If tying a dead squirrel to an album increased sales, squirrel hunters would have been in great demand. Luckily for photographers and illustrators, all it took was good visual art.
Shoppers spent many hours in actual brick and mortar stores listening to suggestions from other browsers, listening to the music and looking at the albums. Albums opened up and contained inside art, liner notes and other imagery. The plain brown paper soon morphed into eye catching visual art works or photos on the albums. Playing your favorite album often meant looking at the album while it was playing, since there were no smart phones or tablets to distract. Sometimes drugs were involved (or so we’re told), but that only enhanced the visual attraction to the artwork.
With the appearance of CDs, the artwork was greatly reduced in size and its importance as a sales tool. This was soon followed by downloading and streaming where there is no cover art at all. The stereotypical view of the record collector with hundreds of records stacked on shelves became an anachronism in no time. Record companies hard pressed for cash saw no need to spend money on photography for their products, which were now “sold” only as sound. The concept of a big album cover as an eye catching, edgy packaging/advertising tool was for all intents and purposes dead. As the need for record photography and illustration faded in importance so did the formerly critical role of the photographer and illustrator in the sale of music.
So why the history lesson? Read on MacDuff.
Few industries today, engage in the rampant infringement of photographs and illustrations to the extent the record/music industry does. Ironically, the music industry’s life-blood and assets are their copyrights. In part 1 of this series we highlighted the aggressive, litigious approach the industry takes towards those who infringe on their copyrights, even when there is no chance of collecting a cent. Also, not a day goes by when one musician, label or singer is not suing another claiming copyright infringement or “undue sampling” of too many chords, notes or words. In nearly all of the cases brought by an artist or label, their claim is that the original musical work was infringed and that work is worth a ton of money.
The tune changes when a photographer’s shot is infringed by a band, promoter or label. The infringed work can appear on tee-shirts, posters, social media, even on CDs. The industry’s defense in court is invariably, “This picture did not sell a single CD, entice one download, nor cause anyone to listen to this song via streaming. And besides the monies earned by digital music sales are so small that damages are virtually nothing”. Their standard arguments continue: “Sure we used the image on social media but that does not convert to any real sales and hey, we don’t control who posts the pictures on all these websites, fan sites and blogs”.
They downplay the effect a photo may have in branding a particular performer or group and push the courts to demonstrate that it is extremely difficult for any photographer, no matter how famous, to prove sales resulted from the use of photos in ads, social media or even on merchandise. The classic example is that of Jay Maisel’s album cover photo of Miles Davis for “Kind of Blue”. Considered the greatest jazz album of all time with sales of well over 10,000,000 (that’s 10 MILLION) copies it would be impossible to demonstrate how many of those sales over the last 50+ years were directly or indirectly due to Jay’s photo. That’s true, it is indeed very difficult to demonstrate that X number of people out of the 18,000 who attended a concert at “The Big Music Venue/Hall/Auditorium/Stadium” were motivated to buy tickets in whole or in part as a result of seeing a great image.
Ahhh, but here’s the good news. You likely will not need to demonstrate the effectiveness of the infringed photo in selling any CDs or putting any fannies in the seats at concerts or causing anyone to click “purchase” while on Amazon.
If your copyright is registered (which we talk about until we’re blue in the face), when you sue the bastards (as we tenderly tend to call infringers) you may elect to seek statutory damages and attorney’s fees.
We put that in bold, because the statutory damages that you can collect with a proper registration, need not have any relation to the amount of actual damages your lawyer can prove. That’s not big, that’s huuuge. The lawyer fees you can collect are not only icing on this cake, it’s also a major concern for infringers looking at signing a very large check. But even without a timely registration, meaning one done before the infringement, the courts will look favorably to your position. We don’t want you to feel that you have no recourse if the registration is not done before the infringement, but it does make a big difference.
Some singers/musicians have been known to fall in love with a particular image of themselves and use it to brand themselves. Commonly, very commonly, the performer or his “people” in using that beloved image seeks no license or permission. If faced with a protest, the famous performer dares the impoverished photographer to “Go ahead and sue me”. Ed has heard refrain this over and over, like a broken record, from many infringing “artists”. It’s an example of a trying a great defense by employing a seemingly overpowering offense. Typically the performer has lots of money, an agent, manager, lawyers, accountants and a record label to protect them. On the other hand the photographer usually has debts, a mortgage. And drives a car that needed tires last year.
We are here to tell you to keep your chin up as your registration has leveled the playing field level. Judges and juries sympathize with the little guy being pushed around by the rich obnoxious entertainer and his/her gang of suits. Registration of your copyright makes the star and his/her backers vulnerable to not only bad publicity, but also paying out big bucks. The lawyers for the artists at that point are supposed to step in and give the diva the bad news, specifically to “cut your losses”. Remember that these are infringers who can write big checks and there is no reason that if they stole from you, that your name should not be on one of those checks.
And don’t be scared away from pursuing your case if it’s, “not worth at least $30,000” as several groups and trade associations have been saying (as if they know the facts of any given case) lately as they push for a small claims avenue for infringements. We support a small claims avenue for photography infringements, but we also think the posturing for this politically is scaring some photographers from pursuing really good cases. There is no $30,000 “floor”. Every case stands on it’s own facts and has to be looked at individually. (More on the magic “$30,000” figure in another column).
Ed has had so many infringement cases in the music and entertainment industries that he can’t count them all. In every case he represented the little guy most of whom had timely registered their images and some who had not. Some are valued at many times $30,000, some less. Unlike eggs in a carton, each case is unique.
A big advantage that a photographer or illustrator has when suing a record label, TV network or just about any entertainment or publishing entity is that such companies know the value of copyright and have demonstrated that fact themselves in court cases. The recording industry registers everything and will sue anybody if need be, because as Michael Corleone so famously said, “Its not personal. Its strictly business”.
Ed uses the very same phrases that the RIAA uses in its lawsuits when representing his clients who may be claiming against members of the RIAA. He often provides the court papers prepared by the entertainment company’s own attorneys, in their own cases, to illustrate to a judge or jury that what’s good for the goose is good for the gander. The infringer can’t have it both ways and hypocrites don’t do well in front of juries. They can’t claim how greatly and dramatically they’re hurt when infringed, but when they infringe someone, it’s no big deal. The Hip Hop don’t Hop here.