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On on the Yahoo! MusicPhotography group, there has been a long running discussion for years about the legitimacy of photo pass agreements. Some argue they are unenforceable because contract law requires both sides have an opportunity to negotiate. A member of the Yahoo group, Bob Leafe, recently raised a good point about these photo pass agreements. These agreements have been in practice for over two decades. In a court of law, this length of time might make them "acceptable practice" whether or not we like them.
I'll add that my attorney Carolyn E. Wright has reviewed a number of these photo pass agreements for me personally. She thinks they would stick in court because you have the option of walking. If you sign, you agree. I see them like the terms and conditions on concert tickets. If you purchase the ticket, you abide by the terms or you don't go to the concert. There is no negotiation. One might argue that photo pass agreements are not a "contract" and therefore contract law does not apply. They could be viewed as simple terms and conditions like concert ticket or photo contest terms. Thus negotiation is not part of the process and has no legal merit.
As music photographers, walking away and leaving the artist without publication promotion is the only power we have that will force a change. If photographers continue to sign these agreements, and performers continue to get images published from their concerts, artist lawyers will continue to use the agreements. That they have worked for over two decades establishes the precedent of "acceptable practice". Talking about our objections to these agreements amongst ourselves without any real action on our part costs the artists and record labels absolutely nothing. We shoot ourselves in the foot because we now look at these agreements in terms of what is acceptable versus what is just egregious. They effectively have worn us down. The only way to impose a cost to the artists and record labels is to walk away and not cover the artists. No promotion in publications is the only form of power we have to effect change.
We need to tell labels why their artists will not be covered for a given tour. We need to work with labels to develop agreements that are fair. There should be no restriction on editorial use of images. If an image can be published once, there is no reason to restrict it being published again. It is out there. People have seen it. And on the web, they live forever.
You would think publications would be more supportive of the photographers, but they too are bowing to the record industry lawyers. And with everything moving to the internet, the publications care less and less. If they get permission to use the image on their web site, they are happy because that lasts forever unless the license agreement from the photographer limits the usage period. And they should! If you don't, you are leaving money on the table. Go read "Licensing Photography" by Richard Weisgrau and Victor Perlman.
I've thought about this considerably. It really does seem like the days of full-time concert photography as a profession are coming to an end. We can still practice the profession, but we won't be able to do it full time. And we will never effect change with the labels without action that has teeth and impacts the record labels monetarily. Imagine Kanye, Black Eyed Peas, Beyoncé or some other big artist suddenly not showing up in the press anymore because writers and photographers told the labels ahead of time they would not be covered unless they worked out an amicable agreement. Artists would fire their labels. Labels would lose money and control.
Free press still has power. We simply have to exercise it.