Before I say any more, I must mention that this is completely unrelated to MERCURY MEN or any other act I have previously mentioned on this site-it is purely a question I am posing on behalf of a friend in need.

An artist I've been friends with for a while was approached earlier this year by a guy with a camera at a gig of his, who, completely unbidden by the artist, started snapping away during the gig, and asked for the artist's e-mail address after the show so he could send him some pics from the night.

The photographer then sent over four pics-three were of no use to the artist in question, but one was usable. No further contact was made with the photographer until four weeks hence, when the photographer sent along an e-mail asking howcome the pics he sent over weren't on the artist's Myspace profile etc, and asking if the artist didn't like them, to which the artist replied that they were good, and asked if there was any chance of getting hold of the remainder of the pics from the night on a CDR, for free or for financial recompense. The photographer replied that this would be too time consuming for him and would not be possible, and the matter was closed.

The one good pic has since been used on some posters and in some promotional material, and also on the cover of a demo CD.

Now, the photographer is back in touch with the artist, claiming he has breached copyright by using the picture in question without his permission, and asking for financial recompense.

I must also add that the pictures that were sent via e-mail by the photographer contained no copyright hallmark, and in no part of any prior communication, personal, electronic or otherwise, was copyright or the purchasing/licensing of, mentioned by the photographer. He also makes no allusions to it on either his website or Myspace profile, and took and sent the photos over completely unbidden by the artist in question.

I should also add that, should the matter be taken to court in order to seek compensation, the artist in question is virtually penniless, owns only a

I'm afraid that you are not going to like the answer to this one ... but the photographer DOES own the copyright.

Your frind (by offering his e mail address to receive pics) had implied that he knew shots were being taken and had approved of this.

The photographer owns the copyright in any shots he takes - unless these are done by way of a commisssion, and they a copyright disclaimer would normally be signed.

Personally, I would ask the photographer why he wanted to send the shots - unless it was for the artists' use? - and try and back HIM into a corner.

Copyright is created automatically there's no need for the photographer to announce anything in that regard.

Using the photo without his permission is a breach of his copyright.

The email asking why you didn't use them on the MySpace site could be used as a counter-claim he wanted you to use his photos and as no mention of a fee was made it could be argued they were a free offer.

I emphasise could.

In this case, you can tell the photographer you believed the pictures were given to you for your use (RE myspace email) and the person he wishes to sue is "a man of straw" (Legalese for skint).

Apologise for the mistake and, if it suits you, make an offer to pay what you believe to be fair and reasonable, verbally not in writing.

If he declines or asks for unreasonable then remind him the artiste is skint and there is little to be gained by suing him as it is unlikely he will recoup his costs and will be out of pocket.

Suggesting that if he is decent about it there is the possibility of future work for him may help.

Next time remember to ask permission before you use other people's work.

It is an issue that needs modernising though, purely as there is so many small digital recording media devices about, nobody seems to even try to ban photography, video filming etc at gigs anymore.
Personally, I would like to own my own image (wouldn`t we all?), and sooner or later, somebody is going to have to look at how much free media is leaving gigs as well.

One can only hope, for the photographers own common sense and reputation, he waves on this one, lets face it, he will get declined quite a lot by your mates, mates, as well.

If the photographer has a huge reputation, it probably won`t dent him/her, but it is more likely it will.
Personally, I`d ring the MU, they enjoy cases like this, failing that, they are very good anyway, and not just an insurance company, which sadly they nearly are these days.

...and, as if by magic, I awake to the news that Prince is the first to take the major stand on cameras at gigs.

Mart wrote:
...and, as if by magic, I awake to the news that Prince is the first to take the major stand on cameras at gigs.
See... you're giving him ideas!

Be careful what you write here - you don't know who's reading it.

the first time I heard of an artist banning (professional) photographers from his gigs was around 1973: David Bowie wanted to control his image (thru the execellent work of Mick Rock).

Many thanks to all for the kindly advice. I'll pass on the info and hopefully it'll help him reach a resolution on this.

This is quite simple. Tell your friend the following.

1. Tell him you will see him in court.
2. Right him a letter demanding compensation for your performance and moral rights on the photos.

3. Also let him know that by creating unauthorized images of your performance he has breached your performance rights.

4. If he has sent them to you, and asking why they are not on your myspace he is implying you have fair use for promotional purposes.

Don't forget he approached you and technically is contracting you to 'model' for him.

Your artist has the legal right to sue anyone who is taking pictures at your gig especially if they intend to profit from it.

Of course a judge will decide but if you show some robustness in your response the 'eejit' will not sue but will enter into an arrangement with you.

By the way if you did not approach the person but he approached you, then you should never ask to pay for any copies. You demand for 'promotional copies' and forbid any commercial use. If he wants any commercial use then he should PAY you for your performance. Simple. It is basically the same with shooting someone on the street. If they are deemed 'recognizable' and contributing to your shoot then technically you need a talent release form.

You may pay the talent or get their performance for free but you NEED A TALENT RELEASE FORM Seeing that he is photographing you and especially as he approached you then you have far more legal legs to stand on than he does and you should demand compensation for your 'performance'. Don't you think it is similar to a record label recording someone singing and then going out to print hundreds of copies and selling them on Ebay. Um that is bootlegging.

I'm getting into film, TV and photography and this comes up often. Now there is an element of public interest which is how Paparazzi get away with it but in your case, what public interest angle can he use ? He has entered private property, filmed a controlled performance without permission and has no significant 'public interest' angle. Um as the late great Gary Jacobs would say "Sue Em !"

Good luck but DO NOT PAY A PENNY and counter sue him.

DJKZ wrote:

He has entered private property, filmed a controlled performance without permission and has no significant 'public interest' angle.

All of which he did with the artistes full knowledge and implicit approval !