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.
Cheers man, all good.
Totally unfortunate and maybe not untrue. But TBH, if there is multiple photographers, a class action lawsuit should be gathered. The animator was lazy and paid no regard to requiring permission for the use the images. It's a pretty black and white situation. Music videos by such large bands gain tons money in ad revenue via YouTube, and given that the video is made up of proprietary art not solely created by the animator is theft, that actually has monetary backend tied to it. Including a potential contract offered to make original art per the production company. It's no different than a sync license for using a bands music for your slideshow, video or whatever you want to use for wedding etc. They require purchased rights agreements for music, there's no reason the road doesn't travel the opposite direction. Both the animator and Metallica (Business) is responsible. Beyond the simples desire of recognition, the photographer(s) should be compensated damages, because its attached to revenue gained via ads on YouTube and the price of production cost for the video. To roll over on this issue is lazy and hut the photo industry. Metallica has been a whining band entity for over two decades now. No reason they shouldn't be made aware of their hypocrisy and mal practice. This is shenanigans and shouldn't go unexcused.
I agree completely with everything you are saying, however if he does start demanding payment, I can assure you that his music photography career is over. It's a double edged sword for him and unfortunately he is a small photographer fighting against one of the most popular and wealthy metal bands in history. I was in in the industry and the hypocrisy that bands scream over downloaded music is killing their art while posting and printing other peoples work is too much to take at times. The harsh truth is that many musicians don't feel like a photograph is hard to do and not real "art", and that without them in the first place, you wouldn't be there creating anything. This sense of entitlement often belittles the art of concert photography and results in situations exactly like this. Before I get murdered by someone that owns a dusty guitar on here, not all bands are like this. I worked with a ton of great bands that had a ton of respect for what I did, after all, I'm helping them by spreading their image around and they are helping me have a career in something I love doing. But not all bands are like that.
I agree with your observation of the retaliation it would have on him. And I have friends shooting in the live band industry, and know well of the great relationships they have. I agree with you on the take musicians have on photographers as well, given many of the outrageous egos that exist out there. Sadly, if we learned anything from Some Kind of Monster, it's not like Metallica is this healthy, aware, band of dudes who are about the industries that support them, aside form their perpetual personal issues that make them "artists" and the unit Metallica. However, had not Metallica pushed the issues on Napster, we wouldn't have subscription models and a new fair industry on music distribution. I just don't think this can go on ignored. This isn't just one guy effected, but every photographer who's image was stolen to make this video. When you accumulate compensation fro getting the images, and licensing to use them, for each, plus the return the band has from it's distribution, and what they would pay to ensure a legit production of the video, they screwed a SHIT TON of hard working people on making this video. Thats the honest truth.
Actually I don't agree at all that if he demanded payment his career would be over. If Metallica's management doesn't know it was used without permission, don't you think they should be told?? Letting people walk on you is no way to gain respect in an industry you are trying to have a career in.
Ive been a music photographer for over 30 years doing mostly tour photography. Several times my images were used and I found out later. Back in the 80s/90s Atlantic records use to have a video division called A-Vision and they released pro shot live concert videos on VHS from their artists. They released a Live Concert VHS from the band Testament and the box cover had 5 of my images on the back. I didn't know till 2 months after it was released. I called A-Vision and told them that I expected to be paid. I sent them an invoice and I received payment within 2 weeks. Furthermore Atlantic hired me several more times after that for projects. Burrn magazine in Japan used 2 of my Metallica images and I was never contacted.. I called the editor in Japan and I had received payment within a month. I think sometimes when projects are being put together, the design people just assume the art they are using came from management and has been approved. Which was the case for me with A Vision. Sometimes It happens. I'm sure if hes 100% sure its his image, he can call Q-Prime Inc in New York and they will look into it. I'm also sure if there is any kind of payment due, they will make good on it..
instagram - https://www.instagram.com/carliniphoto_music/
Three Words - Red Jumpsuit Apparatus
Oh yea! Man those guys are douche bags! Didn't they ban the photographer from any of their shows for life? Oh boo hoo he can't see a mediocre band that sounds like every other band on their genre, lol. Glad you made me remember that!
Here is the full story on Red Jumpsuit Aparass-holes
http://www.rohanandersonphotography.com/red-jumpsuit-apparatus-copyright...
It's been said several times that the band clearly had no idea where the image came from or how it was acquired. They're a corporation at this point. They're busy making, playing, and promoting their music.
And to all the people who are calling them hypocrites, back before everyone and their brother had a video recording device in their pocket, Metallica would have a dedicated area at their shows for both audio and video bootlegging. They encouraged people to share their music. Their fight with Napster wasn't about them not getting paid. It was about them having control over how their art is shared and distributed. Pretty much every major recording artist supported them, but only Dr. Dre had the balls to stand by their side.
Didn't Richard Prince teach us that, even if they did use this guy's photo, what they did here is perfectly legal?
Ive been a published music photographer for the past 30 years . A few times throughout my career Ive done work with Metallica's management Q Prime inc. They use to manage Tesla in the 80s/early 90s and I was their tour photographer. Ive also photographed Metallica many times. My advice to Henri would be to call Q Prime inc ( they are located in New York City) and I'm sure they will look into it. He will wait forever for an email reply. Maybe if Henri watermarked his work, he wouldn't have to worry about it being used without his permission...
instagram - https://www.instagram.com/carliniphoto_music/
If the animator was intentionally trying to hide it's similarity though, that's negligent and admission to theft. Given the speed and motion of circumstance, the angle of guitar and lighting, this image is identical in all of the technical ways you'd observe it. Playing on stages like this for years, that moment on stage is rarely duplicated. Similar, but not THIS similar.
To start with it doesn't even look like he's playing the same chord with his left hand in the photo which is clearly an A chord. In the graphic he's up on the 3rd fret. Also look at his knee position.
Basically it's another shot of James Hetfield which could have been taken a million times by anyone. There's nothing great about this photo.
I'd say if you take a picture of a person it is their right to do whatever they want with the photo. Get over it.
(UPDATE) I stand corrected. It's the same image.
Actually, it looks like the exact same fingering, and most likely a single note he's playing and his hand is in that position, just on a different fret. Going from a guitar player, that observation is so irrelevant it's dismissible. The animator added frets as way to hid its similarity. It's the same Image original. Now, consider tuning head positions, dynamic stage lighting, and guitar angle. Circumstantially, there is NO WAY you could duplicate this photo. Guitar techs restring every single show. EVERY show! So the tuning heads would be in a different position. That's WAY more important than observing the fingering, which is identical anyway. You can easily modify body, contrast etc, but overlook the details you would only know if you've been a player on a stage, and his mistake was not changing those attributes to hid his work. If he was smart, he would have changed the tuning head positions and created a different light source. And I should add, camera lens, distance and lens distortion, and the amount of constant movement from an artist literally makes every single shot from a band photographer unique. Experiencing both work, the playing and the shooting, theres no way you could argue this is not a stolen image, and modified by the animator.
I'm rolling my eyes here.
In my earlier comments I noticed that Hetfield's left hand wasn't on the same place on the neck. In the photo he is clearly playing an A chord and the graphic seems to have his hand closer to a simple G chord using just the 6th and 5th string exposing the first and second fret which is not visible in the photo. Also his knee and arm position is in a different place which led me to believe it was just a coincidence with same stage lighting and camera pit angle. Since many things are played exactly the same way I could see where everything would look identical many times during a show or shows. It's repetition. But..... those tuning pegs. This bothered me. It's not likely for a guitar to be tuned and have the tuners lined up exactly the same way. So, without much effort I looked into other graphics in the video.
The headstock on Lemmy's Rickenbacker bass is weird. It was either broken, altered or slightly customized for him. Also in this frame of Lemmy he has flipped it horizontally yet left Lemmy's facial cyst on his left cheek. There is a lot of manipulation but the original image was taken by Neil Lupin from a show at the Hammersmith Apollo in 2008.
You can't make this stuff up. Robert Valley (animator) simply uses images and alters them.
You have to look at the video - who ever pulled the still from the video pulled it a few frames early. Someone took the original and animated the still. You will see that it does line up. But again - the photographers will lose because the bands will say they did not give the photographer permission to take & use their photos. It sucks but that is the way it is.
I just ranted on your previous post regarding tuning pegs. Thank you for noticing it here. Like I mentioned, stage techs change strings almost every show. Theres NO WAY the tuning pegs would be in the same position unless it's taken from the original image. Bar none. You don't end up in the same position when you change strings.
Exactly. I'm finding more images that appear to simply be lifted from the internet. This isn't just 1 photographer.
Photographers who take concert photos are walking a tightrope. Did Henri Kack get a release from Metallica?
The bands can say they did not give permission to take photos or use photos of them without permission.
Somewhere in the concert venue a small notice was probably posted that any photos taken are property of the bands. I have seen this. Bands are usually part of large corporations who have teams of lawyers.
You can gripe all day about not getting credit - blah, blah, blah.....So quit taking concert photos. Unless you are getting paid to take photographs then you will always be odd man out in these situations. The bands know this and yes they are taking advantage of you. If you keep pushing it don't be shocked if you get counter sued for publishing photos without the bands permission. I learned this early in my photo career. Just because you took a photo does not mean you have the right to sell the likeness of the person, place or thing in the photo without a proper release.
I've always thought that photos of a person in public is theirs to keep if they want it.
Same with artwork. If you take a pic of a statue or painting it really belongs to the creator.
That is true. You cannot go to a museum and take photos of artwork and then sell the photos. Same goes with people and buildings. You have to have releases in order to sell the photos. If not then you are taking photos for yourself to admire. So to the Metallica video - the band knows they did not sign a release for the use of their likeness - they did ripoff the photos but the photographer has no recourse. He can whine and moan or say hey cool Metallica used my photo in a music video. If he does not like it - then quit posting your photos on-line or put a huge watermark over it.
Weird that in Metallica version Hetfields hand is on the third fret while in original version his hand placement is on the first fret... Maybe just a different image from same sequence?
I'm with you but closer inspection reveals that many of the images are photos that have been manipulated for the video including a photo of Lemmy taken at Hammersmith. See pic above.
Animator Robert Valley knows exactly what he's doing right down to the ESP inlays on the neck!
To me this is the greater offense. An animator knowingly using photographers images with modification for his personal gain and style without permission is SOOOO shady. God knows how much he made on this video. But, you know what they say. The best art is stolen. Ugh. Sucks.
I want to know what the contract was he signed when he got his pit pass. He prob didn't read it. I'm sure it has something about the band or the venue using his image or image likeness.
The same photo is also used in this Heart video.
WOW! This is nuts, makes you wonder how many of all of our images and being used this way.
Hire a lawyer and sue -- the dicks that are Metallica deserve it.
Not to rub salt into the wound, although this ethos ("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.") is a major contributor to the problem.
These wealthy enterprises are keenly aware of the attitude that many photographers are so enamored of seeing their images published that they are eager to give them away or sell them for peanuts and an attaboy, girl, whatever.
This won't change until the industry demonstrates a much higher level of business savvy and self-respect.