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Comment by barrkel | Hacker News Reader

Almost all of the value of a photo taken close up at a concert like this derives from the band rather than the photographer. The photographer is infinitely more substitutable. The photo is normally only interesting to people who are interested in the band, rather than for the craft of the photo itself.

Legally, the photographer in this story is correct. But I think he's dealing in absolutes in a situation where the economics are strongly in the band's favour. The band would be much better off with photographers that signed over copyright and it's not difficult for them to get that, because they're adding most of the value. The fact that they didn't, and permitted this chap to take the photos he did, is IMO down to them not having had this experience before. Now they have, and perhaps they'll be smarter about it going forward.

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The problem is now that everybody has an always available camera, everybody feels like a photographer, probably even a decent one.

When it comes to explaining what makes a photo "good", there's the problem of it being a creative endeavour, so there are no strict guidelines.

The point remains however, they chose his photo. Likely because it's a good photo: lighting, composition, pose, all work well, and these are more-or-less definable criteria of what makes a photo good.

That's not an accident. Professional photographers know how to create the time and place for such photos to happen, unlike an average person with a camera.

Good photographers cannot easily be substituted by a random crowd with phones, no matter how much they see themselves as "photographers".

There's an art to being in the right time and the right place. It's not that a crowd can't produce good pictures, it's that a professional photographer can produce them with higher frequency and with intent.

It could be just as easily argued that the "craft of the photo" here conveys a dynamic that is very favorable for the band (which is probably why they chose it), urging people who only peripherally know the band to check them out because they connect with that dynamic, so the "craft" here is more valuable than the subject.

> It could be just as easily argued that the "craft of the photo" here conveys a dynamic that is very favorable for the band (which is probably why they chose it), urging people who only peripherally know the band to check them out because they connect with that dynamic, so the "craft" here is more valuable than the subject.

It can be argued - you've just argued it - but I think it's a stretch. Selling something to an audience you've already built is more valuable than a marginal increase in audience, especially if it's a static visual and the draw of the topic is dynamic.

If the photographer had his own distribution channel, and could put the photo in front of lots of people who don't know about the band, then your argument would make more sense. But then it's a marketing value proposition, not a technical photo quality value prop.

Oh and I agree that the photo isn't worthless. It's just not a strong bargaining position relative to the band, and trying to leverage law to get a better bargaining position isn't likely to turn out well, and there's no reason to believe that it won't turn out even better for the band in the future.

There is a lot of competition in the known-but-not-that-well-known bands space in any genre. Having world class pictures gets you in magazines and online publications, it creates a presence, especially since metal is a very visual genre. I don't think it's that much of a stretch, but we can agree to disagree there I hope.

> a strong bargaining position relative to the band

He doesn't need a bargaining position. A clothing company infringed on his work, that's the whole of it. The band is not even involved. It's just it turned out someone in the band was likely closely related to the company and it was perceived as some sort of extortion so they decided to get personally involved apparently without being very clueful about the matter.

It really seems like a misunderstanding as was suggested ("Wait, photographs are subject to copyright too?") that should have ended at the manager, or at least their legal counsel, but somehow management was an idiot and doubled down being defensive and vindictive for no reason at all for what is really not some extraordinary practice.

I'm unsure the photographer is trying to leverage the law or get a better bargaining position here, but he sure should try to retain access to venues by explaining his side of the story, hoping that other bands and organisers are a bit more clueful about copyright and realise that coverage and good photos don't appear out of thin air.

P.S. I really doubt a simple message from the band stating that the clothing company was small business and a personal friend would not only have prevented the situation, but delighted the photographer in lieu of any monetary compensation.

This doesn’t really conflict with the claim that the vast majority of value comes from the band. Yes, it would be possible for a less skilled photographer to take a worse picture of the band from that spot. But the amount of skill and gear required to take that photo is possessed by tens of thousands of people.

The gear required to play metal, or at the very least music, is likely possessed by more people. So by that logic, no value comes from the band either.

> The gear required to play metal, or at the very least music, is likely possessed by more people.

You skipped over the skill part.

Do you think there are more people who can play as well as Arch Enemy, or photograph as well as this guy? My money's on the latter.

> So by that logic, no value comes from the band either.

Not much value, sure, which is why playing in a band is rarely profitable.

> You skipped over the skill part.

I personally know more skilled musicians (three) than I do photographers (one). The music industry is dominated by luck precisely because there is such as a colossal pool of artists to choose from.

I don’t think an experienced concert photographer is as substitutable as you’re claiming. Just compare the image from this photographer’s early concert photography to his recent work. It takes time and effort to get to a place where you can take good pictures like this. If the band doesn’t appreciate that experience, that’s their right. But, as the photographer discussed in the article, I suspect their decision doesn’t reflect the opinion of the broader music community.

It's also worth pointing out that they consciously chose his photograph to use in their promotional material, which means that out of every photographer that was present he is the most likely to be skilled. If the sponsor had used a random grainy cellphone picture my heartstrings would be a little more elastic, but they clearly went for the one they thought was the most professional.

>Almost all of the value of a photo taken close up at a concert like this derives from the band rather than the photographer. The photographer is infinitely more substitutable.

You are by your own definition completely wrong. If the photographer is so substitutable and adds so little value like you argue, then they could have used anyone else including their own. Yet in actual fact they (and more to the point a clothing sponsor engaging in commercial advertising use) did not do that, they chose his. However many hundreds/thousands of people with cellphones and other cameras, however many hundreds of thousands of random people in the country they could have just given a camera and had a specific official hired "photographer" to take photos that they'd own the copyright to, and yet they didn't and just took someone else's without asking instead.

Again by definition that means that they found his particularly valuable amongst everything else, and didn't find the cost/benefit right to hire somebody random for minimum wage to photograph for hire. This isn't some gray case whatsoever, there is no fair use here, it's not fans, it's not some perpetual copyright shenanigans, or any of the other many issues with IP. It's a company & band violating copyright immediately and using a photo for advertisement getting snooty about being asked to give 100 clams to charity. That's a pretty amazing thing for you to defend.

>The photo is normally only interesting to people who are interested in the band, rather than for the craft of the photo itself.

You can say "normally" but we're not talking averages, we're talking a specific case where the photo was "interesting" to a for-profit corp for advertising purposes.

>But I think he's dealing in absolutes in a situation where the economics are strongly in the band's favour.

"Absolutes" would mean a immediate c&d or for that matter a demand for restitution of at least the mandatory minimum statutory penalties. "If you want to keep using it please either pay me the normal amount or give 1/5 normal amount to charity" doesn't seem so bad to me at least. It was entirely their blunder and sense of entitlement.

And the bit about hypocrisy for a "anarchist" metal band that also complains about infringement of their IP are pretty on point too if you want to go beyond legalities.

Your argument doesn’t make sense. The fact that they chose some specific photograph doesn’t disprove that photographers are largely substitutable. Of course some specific photograph had to be chosen. If you chose no photograph then the issue wouldn’t exist. Choosing a bunch of photographs and blending them together is nonsensical. So yes, one photograph was chosen. But that doesn’t mean they couldn’t have chosen a different photograph. The only difference would be that a different photographer would be writing the same article about their interactions with the band and sponsor.

>The fact that they chose some specific photograph doesn’t disprove that photographers are largely substitutable.

It does, that's a market at work. Why do I choose one thing over another one when there are lots of competitive options and essentially no barrier to entry? Because I value it more, I think it's better for me then whatever else there was. This isn't an area of natural monopoly, in fact it's about as polar opposite as can be.

>Of course some specific photograph had to be chosen

Some photograph is not this photograph. You need to choose "some" car or "some" phone, that doesn't mean they're all perfectly interchangeable. Furthermore no, there was no "need" to choose anything that they didn't own copyright to or wouldn't negotiate for, because they could have made their own or asked any other person who took photos at that concert, many of whom likely would cheerfully give it up for free. This was for an advertisement. You're reversing logic here.

>But that doesn’t mean they couldn’t have chosen a different photograph.

Yes they could have which is precisely why it's so wrong. You could have chosen to use/buy, or not use/buy, many different things over the course of your life too. I somehow doubt you just roll a die for every decision you ever make though.

>The only difference would be that a different photographer would be writing the same article about their interactions with the band and sponsor.

No, the whole point is that different people will put different values and terms on their work. So if you don't agree with one person's, you go to somebody else. Not liking their terms though doesn't mean you necessarily get to just take it. Seriously, how could you possibly even get that into your mind in a case like this?

And again, if photographers are so interchangeable then this is even more trivial, because they could find any random out of work person or student or fan and offer to pay them minimum wage (or less, many fans might do it just to be able to attend a paid concert for free or get some beer money or something) and take pictures as their agent. Then they'd simply own the copyright directly. If photographer doesn't matter then why not do that? "Equivalent photo" and they'd get it for 10-20 euros (or less).

> Why do I choose one thing over another one when there are lots of competitive options and essentially no barrier to entry?

Umm, because you wanted one of the many substitutable options. You didn’t care which one, because they were largely indistinguishable from one another, so you chose one randomly. It makes absolutely no sense to claim that, because they chose one photograph, then clearly there werentnother substitutable photographs.

>Umm, because you wanted one of the many substitutable options.

Even for total commodities which are perfectly substitutable the fact remains that offering terms (including of course price) are an integral part of the product. If I'm selecting between two containers of flour that I knew were truly perfectly the same and chose the one that was cheaper, that's not random either. The terms under which someone makes a photo available is part of choosing one. They could have chosen one that was put into public domain or something like Creative Commons Attribution 4.0 International, or that someone was willing to just give for free, but didn't.

And of course in real life even our most basic commodities often merely have smaller differences, but still differences. Some brands may still be more reliable, or offer specific differentiation, or just make people feel subjectively better. This is hardly some new discovery of human psychology.

Which gets into this:

>You didn’t care which one, because they were largely indistinguishable from one another, so you chose one randomly.

Not that you actually support an assertion that the company Thunderball Clothing did in fact just use a random number generator and somehow got from that to his photo, but even if you did that would weaken your argument, not support it. Because if the products in question are indistinguishable, that's all the more reason to go with whatever has the most favorable terms. In a less competitive market there becomes more of an argument that someone's terms could have elements that were unconscionable, but in a commodified one "take it or leave it" is at its most justified.

Again, I don't think you or anyone else actually chooses at random very often. "Largely indistinguishable" is not "indistinguishable". Making a decision tree super simple ("lowest price wins" or "the first one that comes up in search" say) isn't random either. But even if you do choose randomly, that doesn't give the moral (let alone legal) right to just take it on your terms.

>You are by your own definition completely wrong. If the photographer is so substitutable and adds so little value like you argue, then they could have used anyone else including their own. Yet in actual fact they (and more to the point a clothing sponsor engaging in commercial advertising use) did not do that, they chose his.

If you go buy an apple at the grocery store you pick it out of a hundred others but that does not mean there is anything special about that particular apple. It's just the one you happened to pick out of the many of other equally good ones. And I'm sure we'd all be equally annoyed if some apple picker e-mailed us saying they normally charge 500 per apple picked but they'll settle for a 100 dollar donation in this case.

Your physical analogy attempt is not merely incorrect but it doesn't support you even taken at face value.

>If you go buy an apple at the grocery store you pick it out of a hundred others but that does not mean there is anything special about that particular apple.

It is a well known fact of marketing that much of the population absolutely will look carefully even at something like a crate of apples and try to pick "the best" one as well as they can, something which has resulted in unfortunate phenomena like supermarket fruits and vegetables being bred for appearance and resilience against shipping rather then taste such as the infamous Red "Delicious" (of course people specifically choosing against appearance for flavor aren't selecting at random either). Also compared to IP where there is infinite reproducibility the more apt analogy to choosing between various photos would be choosing between varieties of apples. Or one kind of apple, but some are organic and some conventional. They're all apples, and you can acquire as many as you wish to pay for, but they aren't all the same nor will their pricing be the same.

>And I'm sure we'd all be equally annoyed if some apple picker e-mailed us saying they normally charge 500 per apple picked but they'll settle for a 100 dollar donation in this case.

Sorry but not all of us would think picking an apple at random would entitle us to walk out of the store with it without paying for it. If after we took $500 worth of apples without paying the actual legal owner emailed us and stated that normally they'd call the police but would settle for a donation of 1/5 normal price to a charity yeah, that'd be pretty decent deal.

It's genuinely kind of weird how you seem to think that you not caring would mean you can have whatever you want on whatever terms you want.

>It is a well known fact of marketing that much of the population absolutely will look carefully even at something like a crate of apples and try to pick "the best" one

Even if they spend a bunch of time picking one that doesn't mean there's anything special about the one they do pick. If you had magical foresight and removed their most preferred one before they began their search they'd just pick a different one and be none the wiser.

>It's genuinely kind of weird how you seem to think that you not caring would mean you can have whatever you want on whatever terms you want.

I have no idea how you came to that conclusion.

>Even if they spend a bunch of time picking one that doesn't mean there's anything special about the one they do pick.

It does, it means it was the one they considered the highest value of what was on hand and sufficient value vs the price and whatever other internal criteria they held. That is literally the foundation of our entire modern economy.

>If you had magical foresight and removed their most preferred one before they began their search they'd just pick a different one and be none the wiser.

Yes, if you took their first pick (or if someone else had come first and chosen it) they'd be left with a reduced pool, which would then be evaluated independently, and they'd choose the "second best" pick, aka, the new first pick. And if the pool was reduced even farther, they'd be forced into further reduced choice, which might still lead to new choices unless all the remaining ones fell below their floor level criteria (perhaps the final apples nobody else would pick were all shriveled and bruised looking), in which case they might choose nothing. Or maybe they desperately want an apple even if normally they wouldn't, and settle but are angry and do not patronize that store in the future. Or maybe they're desperate but willing to travel and just leave and go to a different store. And on and on.

This is weird. Why am I having to explain such fundamental basic decision processes to somebody on HN?

>I have no idea how you came to that conclusion.

This entire discussion is about a commercial entity taking somebody else's work for profit use and not paying or even asking permission. Copyright infringement is not the same as theft, but you're the one who created a real world apple analogy, and by referencing the 500/100 money thing you're clearly cognizant of that aspect. For your analogy to have any connection it has to be somebody taking the apples for free, under the justification that "all apples are the same so if somebody is asking anything I'm justified in just taking it rather then acquiring one elsewhere at a price I feel is acceptable". How can you argue it both ways? Either all photographs are equivalent in which case there is no reason not to choose one that is free, or there was something better about that one in particular which is why it specifically was highlighted amongst all the others.

>This is weird. Why am I having to explain such fundamental basic decision processes to somebody on HN?

I don't know, but you clearly explained my (and others) point and then go on some bizarre tangent about the foundation of our modern economy.

To wit:

>Yes, if you took their first pick (or if someone else had come first and chosen it) they'd be left with a reduced pool, which would then be evaluated independently, and they'd choose the "second best" pick, aka, the new first pick

Exactly. And with photographers, like with apples, you have to go through a lot of apples before it matters. Which is why when you say things like this:

>Yet in actual fact they (and more to the point a clothing sponsor engaging in commercial advertising use) did not do that, they chose his. However many hundreds/thousands of people with cellphones and other cameras, however many hundreds of thousands of random people in the country they could have just given a camera and had a specific official hired "photographer" to take photos that they'd own the copyright to, and yet they didn't and just took someone else's without asking instead.

You're wrong. There's nothing special about this guy or the photograph he took.

>Either all photographs are equivalent in which case there is no reason not to choose one that is free, or there was something better about that one in particular which is why it specifically was highlighted amongst all the others.

They chose it before they knew it wasn't free. Five posts into the thread and that never occurred to you?

I see a lot of people in this thread that view band photographers as disposable chaff that don't deserve the same copyright protection as everyone else, but I doubt that anyone would want to take legal rights away from migrant fruit pickers in California. Migrant fruit pickers are very replaceable, so that doesn't add up.

Edit: In response to the shadowbanned comment that I can't reply to, I don't think there is a line beyond which extremely poor economic negotiation power crosses over into reduced status in the legal system in any court system or even moral system in the world... Except for metal band photographers, apparently. (With the possible second exception of third world countries.)

I am wondering - did they even wave their rights away for commercial use by letting that guy take pictures of them?

The way I am seeing is that he is trying to make money off them without compensating them as his 'models'.

Well, the author claims that they never had any rights to the photo he took at all. They still could have used another photo, but they instead picked what they thought was the best photo (his), using it without even contacting him.

But he can't be taking pictures at a concert of people and bands without their consent and then try selling these pictures to brands for commercial use.

The crowd doesn’t really matter but I would think the band itself would have publicity rights for any commercial (in the sense of marketing or promotional) use. The photographer could presumably sell copies, publish in magazines, etc. A press pass for a concert could have other restrictions I guess but the whole purpose of a pro photographer taking pictures is to sell them.

I am wondering why you feel this way. Legally it's wrong. Even under GDPR it's art. Photos taken for art purpose doesn't need any consent which also protects even street photographers.

parent explicitly was talking about not-art use:

> try selling these pictures to brands for commercial use

Also, GDPR does not have an art exception per se, but it allows member states to create them. Legality of street photography is a complex topic and viewed differently in different jurisdictions.

Taking a photo is a different action. You don't need a consent for it in public. Just taking a photo is the sole art purpose if you the aim is not distributing it. Selling those pictures to brands is a different action. Selling those pictures to the subject itself is different action. Using those pictures as a papparazzi is a different action. All of them is as complex as street photography. Legality of all photography intents viewed differently in different jurisdictions.

Legally you can take a stranger's photo for yourself and keep it if it's in public. Unless there is a being model case the photo belongs to the photographer. So anyone can take pictures of people and bands in concerts and they do. Thing is how they're using them. If you sell that to a brand there should be a model release. On every other case even for the person itself he or she should pay for the sharing license. Take real models as an example they are being photographed and they are released in stock photo markets the only thing they can do is finding themselves on that marketplace. Later on they share stock photo branded screenshots :). Because they don't pay for the original ones. They need to pay for the photos that includes them as the subject.

He most likely does not have the right to sell the pictures without the bands consent - thats why you have to have "model releases". But this doesn't matter, as he didn't try to sell the pictures. The case is based on unlicensed commercial usage of the photographers pictures.

If I were to translate "Harry Potter" into a different language, the copyright of the translation would be clearly mine. I would not be allowed to sell it without an agreement with the copyright holder of "Harry Potter", neither would Joanne Rowling be allowed to use my translation without my agreement.

He did not try to sell it, that's the whole point.

If they use it for commercial purposes, pay someone. He was fine until it was used to advertise outfits.

I'm not suggesting taking legal rights away from the photographer. I already said I think the photographer is legally in the right. I don't want courts to switch things up, or legislators to change the situation.

What I am saying is that the economics of the situation exist. They can't be wished away. Outcomes tend to follow economics, even if they're illegal, as the existence of black markets, forced arbitration, legal battles based on spending and might rather than right, etc. show. And sometimes the economics are morally superior to the legality, even when the legality is nice and clear.

Part ownership of content production would be morally superior to the bright line clarity of copyright ownership. Ideally, it would reflect how much of the global culture is a part of content, how much is ideas floating in the air, and the multitudes of people who contribute to the gestalt of a moment. But the accounting is impossible. So the legality is simple, and sometimes it creates conflict. The answer is usually more law - signed agreements up front, etc.

A copyright that accounted for value added - if it were possible, calculable without continuous auctions and comparisons against alternatives, which is of course impossible generally - would accrue mostly to the band (and, recursively, to people who influenced the band), I reckon. But I think trying to implement something like that is impossible, and like I said, I don't think things should change. Instead, the band should make photographers sign something first.

>Part ownership of content production would be morally superior

Whether or not this is true, the band is transgressing a hidden rule that is actually more important than copyright. They are changing the deal after the fact. If they had required the photographer to sign away his rights, he would have had the option to find another band that didn't. By not requiring any signatures but then turning around and acting like they got them, they are essentially tricking everyone. The idea that you are not supposed to do this is both pretty intuitive to everyone, and also is more or less the fundamental axiom of contract law. I'd expect an anarchist metal band to be anti-civic, but not like that! ;)

> They are changing the deal after the fact

What deal is that?

The way I see it, the photographer and the band each had different ideas of "the deal". The degree to which the deal "changed" is the difference between prior conceptions of the deal and the reconciliation when the conceptions came into conflict and reached a synthesis.

The band thought they were creating something and thought they could merchandise it.

The photographer thought he was creating something and thought he could stop someone else merchandising it.

The photographer was legally right. I suspect the band is more morally right than wrong in an ideal world of copyrights - and I think copyright is a very imperfect concept - and I think they have the economic power to ensure their merchandise is legally sound in future, having learned this lesson.

>The band thought they were creating something and thought they could merchandise it.

If a band member had gotten down off the stage to take a photo, there would be no problem. They could also have gotten the manager to do it. Instead, they found a photographer who was under the impression that he would be afforded the rights normally granted by society, and got him to do it - without even letting him know that they intended to behave as if he did not have those rights.

What deal? You still haven't clarified your position.

> the rights normally granted by society

What kind of weasel words are these? What you mean to say is copyright as enshrined in law. He has not lost these rights, and I'm not advocating that he lose these rights.

Wait until you hear how the music industry treats session musicians...

That sounds like an interesting thread in itself. Please share some highlights, or rather...lowlights.

In the 70s, Clare Torry was paid £30 for providing the improvisational vocals in Pink Floyd's "The Great Gig in the Sky" on "The Dark Side of the Moon." Over the next several decades, she received none of the revenue earned from the massive success of this album.

In 2005, she sued Pink Floyd and EMI for songwriting royalties, and reached a settlement with them. She is now credited as a composer of the song in modern releases of the album.

Most session musicians probably aren't so fortunate.

https://en.wikipedia.org/wiki/Clare_Torry

"Legal rights" is a vague phrase. I certainly don't think migrant fruit pickers should be able to copyright their fruits!

Copyright is a tool for giving a temporary government monopoly—a distortion of the free market—for the promotion of "science and useful arts". It attempts to emulate the market behavior of physical objects (like, oh, fruits) when the valuable work is easy to copy. I believe certain things about its appropriate use and the markets to which it is suited. That has little bearing on my beliefs about other markets or the value of free markets in general. I believe copyright is a bad tool to protect labor rights (just as I believe machine guns are a bad tool to protect labor rights); that doesn't mean I think labor rights aren't worth protecting.

Besides, my actual belief is migrant farm laborers should be documented (i.e., we should have open borders, the historic policy of America back when it allegedly was "great") and unionized and receive a UBI and preferably live under fully automated luxury gay space communism. At that point copyright doesn't really matter, certainly not as a tool to protect fungible workers.

If migrant fruit pickers were claiming to have legal rights over digital representations of specific fruits, then I think people would have similar reactions.

Fruit picking is hard work. Photography is fun to the point that a lot of people do it as a hobby.

So is programming. Should clients be able to just take your code without paying for it?

I'm talking about what is the case, not what should be.

At the moment people with programming skills are much rarer than demand for programmers. No doubt if and when that crosses over we'll see the bottom fall out of programmer pay.

Wouldn't it be better to fly stealth drone into the concert which captures photos then sell it in under ground market to fans.

Haha, I know something like that :D

Almost all of the value of a photo taken close up at a concert like this derives from the band rather than the photographer.

Indeed, just like almost all of the value in a startup comes from the MBA bros with the “idea” and the engineers are infinitely substitutable.

Wait, what?

The value in a startup comes from finding a profitable seam of product market fit. It doesn't take an MBA to do that, but a stereotypical engineer isn't likely to find it either - it's all too common for an engineer to think that good engineering is what makes a good product, when in fact it's giving people something they want that matters.

And a photo can be technically excellent, but if it's not of something interesting, it's unlikely to have broad interest.

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