I'll admit, I was a little shocked when I came across Henri Kack's Reddit post last week. That's right, the band notorious for taking down Napster in the Northern California Lawsuit filed in December of 1999, is now being accused of using an image from a concert photographer/fan without permission. Released on the band's official Metallica YouTube page on November 17, 2016, in the latest video for their song "Murder One" you can see at 5:33 the image in question. Although altered and animated, it's clear that this is indeed the same image that can be found on Kack's DeviantArt page.
See For Yourself
Watch "Murder One" and see for yourself at 5:33 if you feel this is indeed the same image
Kack stumbled upon the video and caught a glimpse of a familiar image on December 20, 2016, almost one month after the video was released. Here is what he wrote on his Reddit post that has since drawn a decent amount of attention from other readers, photographers and fans of his work.
So Metallica used a picture I took back on 2009 in their 'Murder One' music video without asking any permission. When I saw the video first I thought that wow such an honor that they used my photo but bummer that they did not mention who took it anywhere. I tried to contact them through the website and their management's website and did not get answer. It was month ago and still no answer. Where can I contact them? What can I do? What should I do?
The photography community that has stopped by his post has left some valuable comments, and helped by asking many questions with regards to the best possible outcome. As photographers, unfortunately putting your work online simply because you are proud of it can come with consequences. Hence the reason for my article from last month. Since Metallica should know that it is Unforgiven to trade or steal art I just found this situation too ironic and needed to do what I could to help.
Side-By-Side Comparison
From reading through comments on his Reddit post it's easy to see, Kack isn't seeking much, he just simply wishes he got a little recognition for his work. I think most photographers would agree, Nothing Else Matters in the end, all we want is credit, especially when it comes to a genre of photography we are passionate about.
To see more of Kack's Work check out the links below. If you have any advice or have been through a similar situation please leave a comment, as I'm sure all of us would be grateful should we come into this situation in hope that there is some sort of payback And Justice For All. OK enough now, that's all the puns I have, what do you expect from an uber Metallica fan?
Check Henri's work on Facebook, Instagram, and Deviant Art.
All images used with permission of Photographer Henri Kack.
Blame the media creators for that, not the band. I seriously doubt that Metallica were standing over the shoulder of the person who made the video making sure that everything was 100%.
I'm not a fan of them but I think it's wrong to put the blame at their feet for something that was most likely out of their hands.
Yet the original photographer deserve a response from them or from their management since they commissioned the work so they are responsible for it, even if not in a direct way.
100% He deserves acknowledgement!
I've worked with lots of corporations who commissioned work having no idea regarding the source of any content or even that it was something they should be aware of. When asked about it, they typically responded (and from a pragmatic standpoint, rightfully so) that it was the responsibility of the individuals doing the work. Of course they still have some legal responsibility but so does the guy who drives over the speed limit...it doesn't matter unless you get caught.
Personally, (and I'm sure I'll be voted down for this) I have no use for people who demand recognition.
Not even the same chord.
guitar is redrawn lightly but pegheads are in the same position, and everything else matches...
So they redrew his knee position too?
Why would they draw more frets? This just isn't the same photo at all.
I guess to make it different enough...
Both hands and fingers, guitar head, face is exactly the same.
I think it is mostly a drawing with major parts taken from the picture.
It's possible. After watching again I see lots of photos being used in the animation.
One thing I'm not finding is credits.
OK, I may be changing my mind. It seems Robert Valley simply lifts images then alters them slightly.
Yooooooo that's the wrong frame!
My point is that animator Robert Valley uses photos he finds and manipulates them for the video. This is just another example of where a photo was used. The photo above I believe was taken by Neil Lupin at the Hammersmith Apollo, London 22/11/08.
The band might not have created the video themselves but they have become the national spokeperson to equate NON-COMMERCIAL use of an artists work as criminal. Now Metallica has a video that has stolen an artist's original work for COMMERCIAL use. Even if they were initially unaware the video's creator did not seek to get releases or offer compensation from all of the photographers whose work they used, the moment the band or their management became aware of the controversey they had an obligation to make a formal public appology and offer some settlement to the artists whose work was stolen.
He should get a lawyer and seek damages then.
Metallica, give the photographer money and credit.
I'm afraid there are several photographers that should be listed throughout this video
You really think its "out of their hands" to see to it that their products are legal?
And as they early on in the game of copyrights took a stand against internet piracy, this does concern the band members just as much as the people making the video.
And ye, I lost my respect for Metallica back in the Napster era.
Kenny, I still am a fan but I'll be honest when I put them on I don't play anything newer than "And Justice For All" I'm sure they have some creative control and probably have no clue what is used, I'm sure things are presented to them and they make choices based off a style or look they were hoping for in the video.
They may own the brand but they definitely can't be checking every frame on a video for possible copyright infringements. That's why they hire people to do this. Sure, they are ultimately responsible and I agree that they should engage in some form of restitution to the photographer, but you can't say that they deliberately set out to infringe his rights until this is proven as their intent.
"I think most photographers would agree, Nothing Else Matters in the end, all we want is credit"
Seriously? When was the last time you paid your mortgage with photo creds?
As stated in the article, it's not about money, it's simply about acknowledgement. If you cant give it, don't use/steal the image.
If you came up with an idea you pitched to your boss that would save the company millions, and the very next week, he announced your idea to the company and got all the accolades, but never mentioned your name or that it was even your idea- how you'd feel is how the Redditor feels right now.
I bet that phrase was there just to make the pun :)
Dude it was a Pun. The Metallica song....."Nothing Else Matters"..... I strung them through the entire article. Sorry guessed you missed it or are not familiar with their music. Thanks for commenting!
I understand the pun. Why make the ridiculous statement just for the sake of using a pun if you do not agree with the statement you are making, dude? Is this theonoin.com for photography?
Well see in my writing I'm kind of always a smart ass....I really don't think anyone should take the sentence so seriously, but if you want to go that route knock yourself out ;)
Your definition of smart ass is much different than mine. You gave it a good shot though, so I'll give you that.
hahah well if I went full smart ass my articles would never get published. So eh.....thanks!
I enjoyed your puns, anyway. Some light-hearted fun!
thanks man!
The photographer should post a link on his website to the video and give himself credit.
Or he can file a copyright lawsuit and get a cease & desist order and then probably be blackballed by the music industry. Like sucks and then you die.
Love this idea!
They used a picture as a starting point, made a monochromatic, video content with it.
He can fuss all day long, but they will lawyer up and he won't get a thing. Not cool, but that's how visual copyright roll...
it sorta the risk we take as photographers putting our work out there....
Henri should be going for more than just recognition. These guys are making money off his work. Granted, it probably wasn't the band themselves responsible for this, but now that it's in an official video, he should be talking to lawyers. He's a probably a young guy who is a Metallica fan, but he needs to get over that.
I bet all those images were stolen, not just his.
I had that same thought. So not cool. However, I think there is much to be said about him really just wanting acknowledgment. I hope he gets more. Maybe they pull him on stage and let him rock out during a set! That would make a lasting impression!
I think a royalty check for every time this video get played would make a more lasting impression. ;-)
That said, there are enough variances in the composite to probably give them a legal escape route. The only real place that is the same is the lighting on the face.
Correct me if I'm wrong here but the slider images aren't even close to being the same image so I don't know what the fuss is about. The hand making the chord shape isn't in the same place on the fret board and the perspective of the overall image is different. What am I missing?
did you watch the video? They animate his hand to move back and forth. I couldn't get a better screenshot for the comparison. Just thought it was a helpful way for everyone to make their opinion.
It's probably a composite of various images. The lighting on the face however appears identical.
I doubt this is this photographer's image that they used in the video. I shoot concerts often, and with huge bands like Metallica, there are at least 15-20 photographers in the pit ( usually for only the first 2 or 3 songs, as is usual with media credentials.) I bet there ere at least 2 other photographers standing right next to Henri Kack when he got is image.
Copyright infringement occurs when your new work incorporates artistic expression from the original, even if it takes only a small part of the original work, and even if you add a lot of your own original expression. For example, if the second illustrator rendered the same figure in the same pose, removing the same hat, even if his illustration has a different background. There is a famous quote from Judge Learned Hand that goes “no plagiarist can excuse the wrong by showing how much of his work he did not pirate.”
If your logo includes pictorial elements, then these standards would apply. I don’t have the benefit of seeing the logos in question, but based on your statement “it is very easy for anyone who has seen the trademarked logo to recognize the source of my new logo,” your logo may be a copyright infringement.
This is a written down law no arguments here... Its stolen... If you want to see if its really stolen you would open up the actual RAW document and see the starting point of where the artist made their first move in the meta data. I would assume you would see this picture as a background image.
I hate to be this guy...but none of it really matters at this point. The video is over a month old, and giving him credit will do absolutely nothing for his photography career. There's not a single person that is going to see that portion of a video and be inspired to hire the guy behind the original image that inspired the black/blue graphic animation. I'm not on the bands side at all...I've just been in this photographers shoes a few times and nothing good ever comes of it.
I totally agree and unfortunately think you are 100% correct. Which is why I chose to write about him this week. Hopefully it makes him feel a little valued and we can all learn from the tips and info everyone is so graciously sharing here! Thank you for commenting Robert!
It does not matter how old a video is, something should be given to this photographer or an apology statement should be made by those creators who used the image illegally.
The problem with ignoring this type of stuff is basically the same as giving your rights away. Oh we dont care if the NSA is on our phones, i have nothing to be hiding... just keep letting those rights and rules slip away day by day.
I'm saying that none of it matters to his career. He can b**ch about it and get black listed from the music industry, or he can use it as a learning experience and try not to let it happen again. It is not at all like giving your rights away to the NSA...but by all means, let's go to extremes.
"Nothing really matters...." 😈
shoulda started with that lol
Take a chill pill dude, it's a play on your words https://youtu.be/Tj75Arhq5ho
You're totally right. That went way over my head haha.