Portions of this column were originally written for the July-August 2015 edition of News Photographer Magazine.
Mark Loundy is a media producer and consultant based in San Jose, California. Full bio.
The opinions in this article are those of the author alone and do not necessarily represent the official views of the National Press Photographers Association.
July - August 2015, Volume 139
By Mark Loundy
"Quid pro quo."
A lot of show business performers have turned into animals. Human intercourse (stop giggling) usually involves each party voluntarily giving and receiving something of value. In the animal world the stronger simply takes from the weaker. No morality is involved. One minute, you're feasting on a fresh kill and the next you're watching a bigger animal benefitting from your hunting skills. That's just the way things are.
But humans are different. We exercise empathy, because the power equations constantly change. Most of us choose not to take from the weaker, because we know that we are often the weaker ones and want to be treated that way. The, "Do unto others as you would have them do unto you," Golden Rule is central to virtually every religion.The legal term, quid pro quo, means, "The mutual consideration that passes between two parties to a contractual agreement, thereby rendering the agreement valid and binding."
The Taylor Swift, Foo Fighters, and other media contracts recently in the news have been around in some form for decades. Originally, a photographer could just show up at a concert and have full access, including the stage, for the entire show. As acts got bigger (and their power increased) they started stratifying access, so that only the photographer from the biggest outlets got "all access" passes. Everybody else shot from the pit.
As television became the most powerful medium, the top bands crafted their productions almost entirely for TV. They didn't want still photographers cluttering up the shot. So the stage became a no-go zone.
When newspapers declined in popular importance, bands started limiting photographers to a small number (usually three) of songs at the beginning of the show and then kicking them out.
Then all print started its irrevocable spin to irrelevance. Still photographers became nuisances of little value to promoters. Why should they have to put up with these people when their work would reach their decreasing readerships they day after the band had moved onto the next tour stop? Yet, they still had some remaining value: Their rights.
Tour managers could stop hiring professionals to create their marketing material by forcing photojournalists to sign over their usage rights. Photographers were met with pre-show agreements requiring that they assign rights to the performers as a condition of covering them. Over the years, agreements included clauses such as turning over negatives (later, files,) one-time, one-publication agreements and pre-publication approval.
All of this crescendoed with the Taylor Swift contract that included a clause allowing Taylor or her people to management to "confiscate and/or destroy" equipment that they deem to contain non-complying images.
Some papers are pushing back. The Irish Times simply used no photos from a Swift concert. The Washington City Paper used a crudely hand-drawn "portrait" of the band, Foo Fighters, rather than sign their agreement. Even the tiny Monterey County Weekly in California passed on using photos from an Aerosmith concert because of that band's contract. The Weekly posted a column under the byline, "Squid," explaining why they weren't using photos. That makes it sort of a Squid pro quo.
In Montreal, photographers from Montreal Gazette, La Presse, Le Journal de Montréal, Le Devoir, and Métro banded together and declined to shoot Swift's July concert there.
But the fact is, the promoters couldn't care less. They don't need the papers. How many of Taylor Swift's phone-obsessed target demographic read newspapers — any newspaper? The only newspaper that does matter a bit to them is the New York Times. When they sent a shooter to a Swift show in Louisiana, he didn't have to sign the contract. Thereby proving that contracts are about relative power.
Professional organizations such as the NPPA and the ASMP are working together to address the issue by holding talks with Swift's management. But any concessions by Swift would only be temporary PR face saving. Popular acts don't need newspapers and the power equation is growing only more unequal.
The Good, The Bad & The Ugly will return in September. Please let me know of any particularly good, bad or ugly dealings that you have had with clients recently. I will use the client's name, but I won't use your name if you don't want me to. Anonymous submissions will not be considered. Please include contact information for yourself and for the client.
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