Photographer Gets Banned From Shooting Artist’s Show After Requesting Payment for Usage License

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:

https://www.instagram.com/p/Br6BgXYBRNs/

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.

Log in or register to post comments

60 Comments

Previous comments

(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.

Rob G's picture

"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.

Paul Choy's picture

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".

Paul Choy's picture

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.

GLENN JOHNSON's picture

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.

Rob G's picture

Or make a 100 euro donation to charity...

I love that he went back. That's awesome.

Benoit Pigeon's picture

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.

Mike Kelley's picture

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."

Benoit Pigeon's picture

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.

Jon Winkleman's picture

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.

If they acted the same as concert photographers, you could share and listen to their work for free all day but get fined as soon as you write a self-promoting video description or comment.

Here is my take on this. I shoot metal concerts and have shot Arch Enemy in 2015 when they were part of the Summer Slaughter tour. When you are issued a press pass to shoot a show, you are shooting for editorial use, not commercial. Being that this guy is a lawyer, he should understand that. while you might not sign a contract, there are implied rights that the venue, band and record label have. Selling and charging licensing fees are usually negotiated separately.

Going after Thunderball Clothing over the use of his photo was one thing, asking for money is quite another. The conditions under which he could shoot are dictated by the issuer of the pass and I am sure getting paid for "commercial use" is outside of the terms. Again, being a lawyer he should know that. Also keep in mind that Thunderball Clothing is a one person operation so I see his attempt to extract payment as being heavy handed. The dollar amount he asked for is ridiculous.

How he handles his email leaves much to be desired. He should have kept Arch Enemy in the loop, but he didn't. The response is what I would expect when you go after friends of a band who also have a working relationship.

I see this as a carefully crafted "pity party" by the photographer because he didn't get paid and everybody should feel sorry for him. I don't. The majority of the people who shoot concerts don't get paid. I have shot for MetalSucks, National Rock Review, Side Stage Magazine and now Hellhound Music. In all cases these are unpaid positions. So unless Metal Blast (which he is a part of) pays its photographers, he won't get a dime for shooting. If he is selling his work, it should be done through an agreement with the band(s), possibly the record label and the magazine or him. He takes advantage of the lack of understanding that most people have about shooting live music. His website when offline as a result of the attention, and I am sure his Instagram got hit hard as well. Arch Enemy took a hit from angry fans and photographers.

When I shot Slayer in June as part of their last tour, I signed a contract with them and their media firm stating that all of the photos I shot were to be used for the article I wrote for Hellhound Music. Any other use had to be approved by Slayer and the media group, this includes Facebook, Instagram and other media use.

All of the parties in this acted poorly. If you want to understand why record labels and bands want conditions and restrictions on what photographers do with their work, here is an example they will use to potentially limit the rights of photographers in the future.

"Going after Thunderball Clothing over the use of his photo was one thing, asking for money is quite another. The conditions under which he could shoot are dictated by the issuer of the pass and I am sure getting paid for "commercial use" is outside of the terms."

Actually, assuming what you say is true, I would expect that "commercial use" is what's outside the terms, not "getting paid for commercial use". Which means that Thunderbolt Clothing was guilty of the the original transgression, not the photographer. At that point it should be within his rights to be compensated for their use.

"When I shot Slayer in June as part of their last tour, I signed a contract with them and their media firm stating that all of the photos I shot were to be used for the article I wrote for Hellhound Music."

Great, but the difference is that everybody agreed to those terms ahead of time. Obviously in this case it appears that the terms are more about common practices and vague understandings, but lacking any formal written agreement, copyright law still applies. And that means the copyright holder gets to say what the image can and cannot be used for. Thunderbolt Clothing did not seek permission to use the image, so if the photographer takes exception to their use of it, it's his right to do so.

I think the big problem these days is that people equate using an image without permission with using it for free. Those are not the same thing. If you have permission to use an image for free, we may all disagree that this is the best way to run a business, but it's legally legit. But people are assuming that because images are often being shared around for free, they have the right to do whatever they want with any image without getting permission first. That's not ok, and that's what happened here. I think a lot of times it just gets overlooked because if somebody uses an image without getting permission, but the use is something the photographer would have otherwise agreed to, they just let it slide. While money became the point of contention here, I think it's less about the money and more about the practice of taking without asking first. That's what got everybody into trouble here.

The problem here is that we don't know the terms or conditions that were set by the festival. There could have been a limitation as to what social media use is permitted. So we don't know if he was authorized to use the photo on social media in the first place.

Thunderball Clothing should have known better since Marta is the lead singer in a metal band and should have some experience in dealing with PR and photographers. I still believe that the amount of money the photographer wanted was ridiculous.

The use of photography without payment has been going on for a long time and it isn't going to be settled here. I told a friend of mine who was complaining about a local band stealing his photos "You have two options. You can post your photos and spend all your time tracking down who uses them without permission or payment, or you can not post them at all." And until everyone gets on board with the idea that photos aren't for the taking, this is going to continue.

What a "surprise" that @alissawhitegluz disabled comments on her one sided view.
Interestingly enough, their account has a limit where you can't comment on anything after a certain amount of time, meaning that someone like me can't even call her out in another comment section.

I was going into this big rant about copyright, but this is simpler. Read the user agreement and terms and conditions for instagram or any social network. You have to agree to them when you sign up. Don't like the terms, then don't use the platform.

If anyone has been following what has been happening here, after receiving death threats apologizing to the "photographer" and contributing to his favorite charity, Marta (Thunderball Clothing) is closing her doors!!! This guy used a "pity party" video and Internet/social media character assassination to get what he wanted. While I have no problem with a photographer seeking money for his or her work, we should all be better than this!!!!

I hope that the Fstoppers staff in the future employ a little more editorial discretion in regards to "articles" like this and throw them in the trash can where they deserve to be. Go for quality and leave the clickbait to PetaPixel.

Paul Choy's picture

I tend to agree.

The theft of Intellectual Property by large corporations - who should know better - is a genuine and ongoing issue. This is especially true for professional photographers trying to put food on the table. Such behaviour needs to be called out and challenged. I just don't think this case was an example of that.

From what I can see, this photographer has managed to leverage a relatively minor dispute into masses of free publicity, at the expense of another small business having to shut shop. Honestly, that seems pretty sketchy to me.

I agree Paul. He manipulates the situation to hos benefit at the expense of others. His website was down for more than two days due to the Slashdot Effect. I can only imagine what his Instagram numbers look like.

Well then, it sounds like he got compensated with exposure which is exactly what they suggested.

Can’t blame the guy for stating his case. It’s not his fault if people run with the story and bring out a pitchforked mob.

They ignored his first few attempts at resolving it privately and then finally responded with trying to have him black balled.

At that point the gloves are off, I don’t pity the band or this “company” for a situation they could have easily avoided.