Dutch photographer, YouTuber, and full-time attorney J Salmeron of Metal Blast took to the platform to explain how he was banned from photographing future Arch Enemy live shows as a result of requesting payment after a band’s sponsor used one of his images to promote their clothing.
Salmeron attended the Dutch music festival Fortarock in June 2018 and photographed one of the participating artists, Swedish metal band Arch Enemy. He explains that photographing the band’s set took a little extra effort as it began to downpour, so he had to juggle between his poncho and protecting his gear, but found that the added effort was worth it after reviewing the shots he got. He quickly posted his favorite of singer Alissa White-Gluz on his Instagram and instantly started to see the likes coming in. He was excited to see Alissa liked it as well and decided to share it to her Instagram as well.
As a photographer who likes to shoot live shows myself, I know it’s a super exciting feeling having an artist you admire like and share your photo. It’s especially nice when they’ve credited you properly and did not apply a filter (*cough cough*). In Salmeron’s case, Alissa credited properly and did not distort his original photo at all; she even left his watermark in the image — shocker! Unfortunately, the story doesn’t end there.
Thunderball Clothing, an indie, one-woman clothing company based in Poland, used the repost app to share the photo from Alissa’s feed onto their own, promoting the custom vest, armbands, and belt she was wearing during the performance. This is where it got really hairy really quickly.
Screenshot taken from MetalBlast
As photographers, we always have to figure out where we draw our boundaries. A majority decide that if someone or a company tries to profit off your work, then you should be entitled to payment. Very fair. In this case, Salmeron reached out to Thunderball Clothing via Instagram DM. When he found he was ignored on Instagram, he emailed. He offered the company a fair ultimatum: either pay for usage or donate to a charity of his choice.
In an unexpected turn of events, the owner of Thunderball Clothing never responded to his email, but instead went to the band’s management team. The company accused Salmeron of sending a threatening letter “demanding” money. The band’s manager then reached out to Salmeron, explaining: “Alissa’s sponsors and fan clubs are authorized to share photos of her. Thunderball Clothing is a sponsor of Alissa and Arch Enemy."
For anyone that knows how copyright generally works, you'd know that this is not it. Anyone who stands to benefit off the work of someone else’s work is not entitled to use an image unless otherwise stated by the copyright holder, in this case, the photographer. Alissa and Arch Enemy may be allowed to use the image on social media with proper credits (which they have), Thunderball Clothing, however, is not. Salmeron explained this in his very diplomatic response to the manager.
The band’s response is appalling:
Fair enough, Mr. Salmeron.
We have immediately removed the picture you took at FortaRock. By the way, we are sure you don’t mind that you are not welcome anymore to take pictures of Arch Enemy performances in the future, at festivals or solo performances. I have copied in the label reps and booking agent who will inform promoters – no band wants to have photographers on site who later send such threatening correspondence to monetise on their images.
Btw, the email was not from Marta, but from Alisa herself personally. The artist you blatantly wanted to sell the picture to. Nice price tag. 500 EUR. In bcc the band so they know about you in the future.
Thank you and have a nice day!
Btw – we do frequently donate to charity, but on our own terms and free will.
This entire ordeal just goes back to the ongoing issue of how much photography is taken advantage of, even by other artists. It still surprises me at how little some people think of photography as not only an art form but as some people’s livelihood. Just as someone would need to pay a band for usage of their song in a YouTube video, as Salmeron mentioned, photographers are entitled to the same right. We've seen this time and time again, especially in music photography. I've found myself in the crosshairs at some points, but have thankfully worked with teams who were understanding of my position. A lot of times, however, artists and festivals will have photographers sign photo releases allowing the band final approval of all images and even signing over the copyright.
Alissa White-Gluz has since posted this message on her Instagram:
What do you think? How would you have handled it? What advice would you give to photographers who might find themselves in similar situations? Sound off in the comments below.
Lead photo by Danny Howe on Unsplash, used under Creative Commons.
Looks like @alissawhitegluz shut down comments. I guess I'll never get a response to whether it's OK for me to use their music to promote a commercial product without making any payment.
Lol, gets a few supportive comments from ignorant fans, then deletes the rest and turns off commenting. Classy move.
The saddest thing about this, Alex, is that this is simply a result of the understanding/comprehension of the two parties differing from the other. I don't doubt that she believes her account; however, her account is completely different to his.
And sure, I could understand that initially, but when someone continues with willful ignorance and combines it with a heavy dose of entitlement, that's where any patience I had for her side ended. That might have been the only way I would have gone about it differently: the clothing company is a one-person show who could plausibly not know why that was not ok, as opposed to a corporation with a marketing department that would definitely know better. I might have offered a simple takedown request and explanation given that context before jumping to payment. That being said, that's just my opinion on it; Salmeron was well within his rights to do what he did, and given their response, I hope he's preparing an invoice and a legal letter.
I don't necessarily disagree with you; however, taking a hard line will simply reinforce the position of the parties. In terms of return on effort, education could be far more productive and generate good will.
I suspect (but don't know) that his initial correspondence was issued on the letterhead of his legal firm, as she indicates that the producer of the clothing received correspondence from a lawyer.
I also note that AE have allegedly made defamatory statements about the photographer.
In any case, the photographer's rights have clearly been infringed, and he has every right to seek remedy.
Hey William,
If you track through the links in the video you'll see Salmeron's original post including all his correspondence. As you'll note, he didn't take a hard line and as his opener was sent via email, there was no legal letterhead. My view of the thread is that the band/ manager didn't bother to properly read Salmeron's emails and, wanting to find offence, found clauses to become upset about; the €500 is a case in point.
Unfortunately a lot of people don't read emails properly and are all to happy to take offence where none is meant. Add, in this instance, ignorance over copyright and you have the ingredients for a wild fire. What's even more disappointing, for me, is the bully attitude and trying to get Salmeron black listed.
I agree with what Salmeron did and how he tried to handle the situation. As for the lead singer... who knows what info she was fed from her manager which led to her post. However judging from the rest of the situation, I doubt her manager was impartial and who knows what vested interests are going on behind the scenes with the band?
Concert photography doesn't make a lot of sense to me. You're paying for a license to view creative material (i.e. a ticket) and reproducing other peoples creations (stage designers, fashion designers, etc...) and turning it into derivative works, What am I missing?
Yes, that's my feeling as well. I have a feeling when you buy concert tickets (or tickets to anything really) there is a clause about creative content created at the premisses during the event. I see having someone reposting the photo or even linking it on their website feed if the credits are retained as (editorial, not even commercial) fair use, as they are not selling the image on merchandise, only using it with reference to the concert?
Maybe banning the photographer is overkill, but I guess it depends on the wording used during communications between the parties involved.
If one is using the image to promote one's products OR SERVICES, then it is commercial use. Marta mentioned that the outfit was a custom design she did at her business. That is promoting her business services as a custom designer.
It does not matter that the outfit is not available for sale. It does not matter that the post was not on her website storefront page. The post was through her business Instagram account, speaking about her services as a custom designer.
Marta's biggest mistake was to turn to the band for advice, and not a solicitor. Alissa's big mistake was to trust her management team, without a solicitor. The management team's big mistake was to not get a solicitor involved.
Once a solicitor was involved, Marta would have been told to comply with the take-down notice. That would have been the end of it.
That photographer surely did not pay a ticket, and was invited as any other member of the press to take pictures. That does not give the right to anyone to use his photos for free.
He doesn't claim to have had a press pass.
It just happens that I live in the city where that concert (festival) took place, and I can assure you that you don't get in with a professional DSLR, and even if you did, you wouldn't get that close to the stage with it. I've shot everything from Rammstein to Guns N Roses there, you don't do it without a press pass.
Alissa suggested that he had one, and will not get anymore in the future.
Alissa suggested that he had one, and will not get anymore in the future.
I dunno I'm not a lawyer BUT I honestly don't see anything wrong with what the brand did. They shared something that was shared. I get that because the image is now on their instagram it might help the brand sell something, but the brand itself didn't solicit sales in their verbiage. They just complimented the singer on how well she looked in their custom garments. Now if they said something like, She looks great, you can get yours here too, go to our website, etc, then I would understand him requesting for payment for image usage. They also didn't try to hide his name or alter the image or put their logo onto the post.
I've had brands get permission from the model to use any of their instagram photos and they have used mine and altered the image, photoshop their product into the image and then solicit sales in the caption. When i saw this I had a word or two with the model about how this isn't ok and then I messaged the brand about taking down my image and never using any of my images again. They had the nerve to tell me, well thats fine, we only want to work with "cool" people and now we'll never hire you.
I wish Instagram made it easier for you to report copyrighted content.
By sharing the image, Thunderball are promoting their wares and trying to generate sales, even if they didn't include a direct link to the items. Also bear in mind the post states Thunderball are a sponsor of the band and the singer; ie there is a commercial relationship there. This means the brand and the band were co- promoting each other for their own commercial benefits. The loser in this instance was the photographer who was paid by neither party who were benefitting from his 'free' image. Not hiding the name or watermark doesn't make a difference.
Also if you check on IG, press the three little dots at the top right of an image. One of the options that appears is 'Report', so it is easy to report such infringement on IG; the issue is they don't care. If they did care, they wouldn't allow reposting and other similar features. All they care about is keeping you on the platform in order to sell advertising, which is now 20% of a feed.
have you tried pressing that report button? it takes you no where. you can only report if its spam or inappropriate. You have to official report something for copyright via their website and not the app and even then when they send the report for copyright they also send your name and address to the person you're reporting.
Ah.. no I haven't tried it. However the process you describe doesn't surprise me; as mentioned in my last comment, IG just don't care. They're a money making machine for FB.
maybe im misunderstanding. the photographer that was shooting the event and was banned is a lawyer as well?
Yes. That is his fulltime job
Hahaha how not surprising! I have been banned by a metal band even bigger than those for the exact same reason: their management told me that the mere fact that they accredited me to take pictures meant I did not have to pay for a concert ticket, and as a result, they owned all the rights to all the pictures I took. How dare I ask money for a commercial use of a photograph! The music business is completely rotten, but don't get me wrong: it's not the artists making problems (they are usually the kindest people on earth), it's their ignorant management companies and managers that have no clue what they are doing. Leaving the music / concert photography business altogether was the best decision I have made in my photography career...
"I'm using your picture to promote my amazing clothing brand; you should be proud and pay me, not the opposite"
Really?
So at what time exactly a photographer can sell his picture to a client?
While the photographer is 100% correct in their legal rights, it is still very complicated to handle unlicensed commercial use. Small creative businesses such as bands, clothing lines, etc often have many wrong legal opinions often centered around their egos. The weirdest part is that artists businesses like a band or clothing company are quick assert their own rights to music or designs, yet fault you for defending your own.
In 15 years of music and concert photography, I have experienced many unauthorized social media commercial uses. After several confrontations, I have a new focus on how to best serve my brand and my business rather than my ego and artistry.
I would propose that if your music photos are shared in social media with the logo included, that it is a better strategy for my business to not fight social media commercial use. Until you see the photos used in direct print, digital, or merchandise advertising-then you will probably see a net benefit from just the photo credit and goodwill vs very small licensing revenue. When unauthorized social media use has occurred with photos for a client, I have learned to ask the client first on their opinion on how to proceed.
"I would propose that if your music photos are shared in social media with the logo included, that it is a better strategy for my business to not fight social media commercial use. Until you see the photos used in direct print, digital, or merchandise advertising-then you will probably see a net benefit from just the photo credit and goodwill vs very small licensing revenue."
So here's my question, and I'm honestly asking vs. veiled criticism: Assuming concert/band photography is at least related in some way to your photography business (based on your use of the word business), and I don't mean "business" in the sense that it's just for beer money, do you really see that as a sustainable practice? If you believe social media is just a fad and in a year or two everybody will just go back to traditional advertising practices, I would understand your position. Get yourself on the radar so you'll have name recognition for when everybody goes back to paying for images. But I don't think there's any evidence that this is going to happen, and I doubt most people believe it will play out like that. So if traditional advertising moves more and more to platforms where you're currently giving your work away for free, how do you expect to sustain your business in the long run?
If a business is using social media and they post images, they're advertising themselves. I don't care if it's not technically a "paid ad" or "sponsored post" or whatever. The only people benefiting from that distinction are the businesses, because as long as you believe in that distinction they get to use your work for free.
Music photography is only a very small of my current business. I get paid by magazines and artists to shoot a few shows and promo photos every year. I only expect to get paid the initial amount offered for each shoot, and never expect to have residual license income from concert photography. Making a business plan based on third party license income in the music business is a huge mistake.
I don't expect there to be any changes in the importance of social media or the music business. My strategy of not challenging unlicensed social media commercial use in the music industry is based on 1) recognizing that that bands or bands never pay third party licensing fees unless they contact you first 2) Music Artists and the Industry Businesses want simple and exclusive rights so all paid work is commissioned. 3) the fan base of the artist or brand you challenge will not understand and may attack you even when not justified 4) you will likely cause problems for your clients and other relationships when you ask them to take sides in your dispute 5) Issues like this will make it more likely that an artist will require a photography contract that grabs rights.
So in situations where there is no opportunity for income and a high probability for damaging relationships-yes I advocate spending your time on efforts that are actually productive. If there is any photographer here who has ever received a license payment from a music artist after they complained about unauthorized social media use-I would love to hear it.
"Small creative businesses such as bands"..... Sorry, but Arch Enemy is anything but a small creative business ;)
I've banned Arch Enemy from my music library. Not because of this, but because their music sucks.
They must be the Arch Enemy of good taste.
(The Metalblast website is currently unavailable, so I can't fact check the sources)
Honestly I would've done something similar if I was in the band's position. Just in a more professional way. There's some guy who freely shared shared his work multiple times and you THINK you know his boundaries but he suddenly demands payment for reasons you don't aggree with (the band thinks that the image was not used commercially, the photog thinks otherwise). What would you do in their situation? Go to court? I personally would just pay, move on but also make sure that the situation never occurs again. That's what the band basically did. No need to make conspiracy theories about bullying or them trying to ruin your carreer.
"reasons you don't aggree with (the band thinks that the image was not used commercially, the photog thinks otherwise)"
The image is being put on a t-shirt that is being sold in the online store of a marketing affiliate of the band - how does /anyone/ come to the conclusion that this is "not commercial" and somehow not different to publicity/promo?
Where did you get that "t-shirt" thing? The photo was posted by the woman who created Alissa's top on her commercial Instagram account. There never was mention of putting the image on a t-shirt. I am not saying I agree with AE, but you should get your facts straight.
That's not what happened here but I get your point. The incident was not only smaller but also much more easy to make. When I wrote this comment, all additional information available were the comments here and the video. What I got from that is that the photographer first sent a message via Instagram (not a proper way of communicating such things) and then immediately took legal action. To an outsider (which the band more or less was, at least at first) this just looks like someone is pretending to be nice but in reality is trying to fish on social media for those tiny missteps to make a profit. I would be pissed as well and wouldn't want to work with any of those people.
The photographer's intentions might be completely different but, in my opinion, the way how he handled the situation from a business perspective was just not very smart.
Honestly, I'm 50/50 on this.
Like virtually every other photographer, I am frustrated at the sheer audacity of huge companies just stealing my work, and these companies need to be called out.
On the other hand, looking at the screen grabs this really does look like a repost of a repost - literally what social media is all about. For sure the photography community needs to take a stand for the blatant abuse of our work by those who really should know better. I'm just not sure this was an example of this kind of abuse.
Banning the dude was heavy handed, without doubt, but so was sending a request for payment to someone who just reposted something on Instagram.
"Banning the dude was heavy handed, without doubt, but so was sending a request for payment to someone who just reposted something on Instagram."
I think the problem with this position is the word "just". Businesses have a responsibility beyond acting like a 13 year old who's "sharing" the content they saw. Social Media is not a license for businesses to suddenly be able to do whatever they want. One of the interesting things about this example in particular is that part of their defense is that the clothing designer is a "1-woman business". But see how well that holds up when a photographer, who is often a 1-person business, tries to use their song in a video promoting his/her services. The problem here is that they're failing to see that this works both ways.
Regarding the payment request, I think this actually needs to happen MORE often, for a very specific reason: social media is a near-instantaneous medium. Anybody who posts an image is going to get the majority of the engagement from that post within the first day or two. In the majority of cases, by the time a business actually takes down an image at the request of the copyright holder, they've lost nothing but still gained everything they were going to get from that image. Cease and desist is practically useless on social media. I think invoices are actually more than fair in this regard, assuming the rate doesn't involve serious price gouging. You're simply asking them to pay what they owe. Taking the picture down at that point is practically the equivalent of trying to return a half-eaten candy bar to the store you stole it from when you got caught and they asked you to pay for it. In that analogy it's not about whether the image can still be "used" again for other purposes, it's about the fact that the usage they DID get out of it cannot be "returned".
I hear you, but the key thing here is that looking at the screenshots, it looks like the business owner simply shared someone else's post within Instagram. The photographer didn't have a problem with the original post - he said so in the video - he only had a problem with the post being shared.
It is difficult to see how he can be ok with the band posting the original post, but wanting to be paid for someone sharing that same post (albeit with a comment).
Sharing is what every social media platform is based on - heck, even this story on Fstoppers has a whole load of share options.
Keep in mind that Instagram does not have a sharing feature. So while Instagram may, in practice, look the other way when this sort of thing happens, the offender is not simply clicking a button within the platform and reposting the image. You need 3rd party apps for that, which constitutes a willful intent to distribute images. While the practice has become common, I still believe it's an important distinction.
"It is difficult to see how he can be ok with the band posting the original post, but wanting to be paid for someone sharing that same post (albeit with a comment)."
I don't find it difficult at all. A brand used an image to promote their product. That's pretty straightforward to me. Businesses should pay for that type of use. Now, you could argue that Arch Enemy should pay for use too, and while I agree with that in principle, obviously in practice it's somewhat different. I understand and concede that a large amount of concert photography goes unpaid. But that doesn't automatically give a clothing brand the right to do whatever they want with that image.
The main problem here is not the use, it's the not getting permission for that use. If the brand had asked first, the photographer would have had the option to say yes or no. They didn't ask, so they should be subject to whatever fee the photographer would have charged for that type of use.
Just because you shared a photo in social media that does not give anyone the right to use your product to promote their product.
There was a breakdown in communication when the management did not respond to the initial emails. Personally, I would have stated to Thunderball that they might be unaware that they were using my copyrighted image to promote their product and if they wanted to continue to do so then a financial arrangement must be reached. The usual charge for usage is 500€. This allows them to decide whether to pay for and continue to use the image or take it down. Much less aggressive than sending an invoice out of the blue.
Of course, none of this works if the emails are ignored on the other end.
"This allows them to decide whether to pay for and continue to use the image or take it down. Much less aggressive than sending an invoice out of the blue."
I think the problem is that "continue to use the image" doesn't mean anything on social media. By the time they decide whether they want to "continue" to use the image, they've already gotten all the engagement out of it that they're going to get (unless they repost it a 2nd or 3rd time later on, which is additional usage). This is why I think people need to start sending invoices more frequently for things like this; by the time it's taken down the abuser is not actually losing anything, and they've already gained anything they would have gotten out of the image if they had paid for it. The more we just go the route of "cease and desist", the more businesses will figure this out and keep doing it without any ramifications.
Or make a 100 euro donation to charity...
I love that he went back. That's awesome.
The irony is that J Salmeron uses video clips from Buena Vista Pictures and others to illustrate his issue. Does he have enyone's approval? This guy to me found a nice way to send traffic to his instagram for self promotion. Too much crying.
Fair use: "(in US copyright law) the doctrine that brief excerpts of copyright material may, under certain circumstances, be quoted verbatim for purposes such as criticism, news reporting, teaching, and research, without the need for permission from or payment to the copyright holder."
Of course it is, but to me this is an obvious case of one guy using his dispute to expose his name and work to an unlimited number of viewers. I would take it if a third party had picked up his story and created the video, but creating his own clip this way, to me is nothing but self promotion. The company removed the picture immediately, apologized and posted an apology on their FB. Is he going to drag this for the next ten years or write a book about it. Should we all make a video about a client that was late or never paid us?
The problem I see is that Marta didn't repost the photo, thunderballclothing reposted it. Had it been reposted by the individual's account and not the company's account I think it wouldn't be so black and white.
Costumes and stage sets are also covered by copyright.
Like many others, I am also if two minds on this.
Yes, the photographer used his technical and artistic skill to capture an amazing photograph and deserves some kind of recognition for it but at the same time his photo came together thanks to the concerted effort of the music artist, the fashion designer, the makeup artist, the hairstylist and even the stage set designer. Doesn't their art being used by him deserve compensation?
Although I recognise their value for promoting my photography business, stories like this are the reason I am reluctant to post on social media. When I do and get a repost (as long as the image is unaltered and still with my watermark) I count my lucky stars that my image, and consequently my brand, are getting wider exposure. I write-up such instances as a marketing expenditure which I didn't have to pay for.
Now, when you see your work printed on calendars or blankets (as a similar recent story posted here) without your explicit permission, that is cause for demanding compensation and ultimately legal action... although in the case mentioned above the photographer hadn't read the fine print.
"but at the same time his photo came together thanks to the concerted effort of the music artist, the fashion designer, the makeup artist, the hairstylist and even the stage set designer."
How is that any different from a normal commercial shoot? Or really, any scene that's ever been captured by a camera? It's always about outside elements converging into one moment when the photo is taken. Yet the photographer still holds the copyright and is the one who decides what it can or cannot be used for. This is no different.
"I count my lucky stars that my image, and consequently my brand, are getting wider exposure."
Which is meaningless unless that actually turns into something other than "more exposure" later on. The problem is, once we start accepting nothing more than "exposure" as a form of currency, that's the only currency that brands, businesses, etc, will expect to pay. Except it's not a form of currency, because you can't actually turn around and redeem it for the same value you gave with your work.
Funny how musicians including Metallica go apeshit over online sharing of music when they do not get paid. However they have no problem taking the work of photographers without paying them.