Recently, “Taylor Swift” (in reality, the legal team at Firefly Entertainment) went to battle with Apple over their plan to make a one time payment to artists who appear on Apple’s free internet radio streams. The issue was whether it was “fair” for Apple to pay a one-time usage fee to the artist for the use of their music for a new user free trial period that lasts three months. Swift’s team went to work and eventually Apple Music rescinded the plan to withhold payments to artists for the trial period, and made the comments via Twitter, as seen below:
In response to Swift’s objections, Jason Seldon, a professional music photographer located in Birmingham, England, penned an open letter to the artist making note of her and Firefly Entertainment’s hypocritical position when it comes to paying artists for their work. You can read it here. Sheldon went so far as to share an original contract between himself and Firefly to prove that Swift’s open letter to Apple was merely to get paid, and has nothing to do with making sure that artists are paid for their work.
I personally appreciate his perspective on this issue. But he’s going at it all wrong.
Photographers have a deep love for their craft. I would know since I have quit “trying to make money as a photographer” on more than one occasion, but keep finding myself at this juncture between producing very high quality imagry for my friends at low to no cost, and literally not giving a shit if a stranger pays me to do some photo work for them. We will shoot for free.
Firefly Entertainment, Inc. is in the business of making money. They, like Apple, don’t care about artists. Similarly, both Firefly and Apple care only about the product they put out insofar as it brings them a return. (Have you listened to Taylor Swift’s music?) Firefly is looking for imagery that is high-quality-enough to sell, plain and simple.
While Seldon has the portfolio and subject list to show he’s worth investing in, Firefly has a couple of interests they are looking to protect with this restrictive contract. First, let’s talk about the mechanics of a work-for-hire contract. Generally, by signing this type of contract, a photographer agrees to giving the buyer full rights to reproduce the image the photographer creates for a one-time fee. This is a very common contract that photographers enter into with companies – more common among product photographers. By hiring photographers with work-for-hire agreements, Firefly might pay more on the front end, but will pay less than contracts that require payment to the photographer for each reproduction of the image.
Second, Firefly doesn’t want the photographer to resell, or even reuse (for personal promotion), the images for the simple reason that Firefly has a very specific brand they are putting out and working very hard to maintain. Because the photographer possesses the images in question, Firefly has no way to control which images the photographer releases to the public. Would Firefly want the photographer to sell a giant framed print of Swift from a shoot meant for an album cover? My guess is no.
But here is the main reason why Seldon has this wrong: He agreed to the contract. Taylor Swift (in regards to Apple) had not.
What Firefly does by offering restrictive contracts like the one Seldon writes about is force a race to the bottom. In short, a race to the bottom occurs when buyers enter a competitive market (like photography, more so since the digital revolution), make an offer to a vendor who is just desperate enough (for whatever reason) that they accept the contract. Other vendors in the market then price themselves lower than the next best option, and the cycle repeats itself until the tradeoff between the quality of the work and the price for which it is sold become equal or less than optimal for the vendor. In photography, amateurs and even some professionals will do work for free if they can rationalize the benefit conveyed to them, even if the benefit is not conveyed by the buyer! These benefits might include industry exposure or a portfolio piece (another photographer claims that Firefly’s contract even forbids production for portfolio use, and they’ll destroy your camera if you do!).
The result is, and we certainly see this with Seldon’s piece and a slough of comments by readers on the article I linked to, the vendor comes to resent the buyer because the vendor feels like they have conceded some benefit that the buyer could have conveyed upon them.
Do I agree that Seldon should have the right to reproduce the images of Swift? I’m not sure. That’s more of a meta-photography business question. It would be great if all photographers had unlimited rights to images they produce, and were able to sell those images in the marketplace.
Then again, the marketplace would be flooded with images of you name it, and competition would be high. Where competition is high, somewhere exists a race to the bottom.