Back in June I covered Fortarock, a fantastic metal festival in Nijmegen, the Netherlands. I had the opportunity to shoot bands like Dragonforce, Watain, Týr, Alestorm and Arch Enemy, all of whom are not only really fun to photograph, but also extremely talented musicians.
This being the Netherlands, shooting the festival also meant dealing with quite a bit of rain, particularly during the first day. Arch Enemy were particularly unlucky in this regard, since their set coincided with a massive downpour. This meant that I had to juggle my equipment while hiding under a poncho, trying to make sure it didn’t get too wet to function.
Still, the effort was worth it, and the result of that first day was an image of Alissa White-Gluz, the singer of Arch Enemy, that, as soon as I published it on my Instagram, was very well-received by everyone, even by Alissa herself, who re-posted it on her account.
Just as I saw that fans were re-posting the photo (something that I tend to turn a blind-eye to, as long as they don’t edit the images), I noticed that a company named Thunderball Clothing had posted it to promote their products.
Since the post had been made on the account of the company, it was obvious that its purpose was to advertise. It was placed on an Instagram page that had a link to their online store, and my image was used to show the products that they had created for Alissa. In other words, this wasn’t merely a fan using the photo because they liked Arch Enemy (which I would normally tolerate), but instead a business, profiting from my work without even asking for my permission.
Since I had tried to contact this company via Instagram messages, but was ignored, I sent their owner an e-mail, explaining the situation:
My name is J. Salmeron, I’m a photographer and [an] attorney based in the Netherlands.
I’m contacting you because yesterday you posted my photo Alissa White-Gluz, taken at Fortarock, and used it on your site to promote your products (the photo is uploaded here: [the link is now broken]). So far the photo has gathered more than 200 likes, and has been viewed, of course, not only by your over 10 thousand followers, but also by anybody looking for tags related to Alissa White-Gluz.
Your use of my photo is unauthorized and, as I’m sure you are aware, represents a clear and blatant breach of my copyright. This infringement is, of course, made more serious when we take into consideration that your use of my photo is in connection with your business, which you are trying to promote with this post.
In general, I charge a fee of at least €500 (five hundred Euro) to businesses that have posted my work in an unauthorized manner. In this case, however, I would be willing to forget about this problem and let you keep up the above post in exchange for a donation of €100 (one hundred Euro) to the Dutch Cancer Foundation. This is an organization that seeks to benefit cancer research as well as improve the quality of life of cancer patients. I can send you a link for the donation (which would be direct to the foundation, not through me) if you accept this method of payment.
I am looking forward to hearing from you.
I send take-down notices like these all the time, since this is hardly a rare occurrence on Instagram, and this one seemed to me like a no-brainer. I even thought that they’d be happy with it, since I would even allow them to continue using the image in exchange for a small donation to a cancer charity. This is a method that I’ve even used with clients, benefitting organizations like the ACLU, so I sincerely thought that that things would go smoothly.
The Shit Hits the Fan
Unbeknownst to me, instead of getting in touch directly with me, M. Gabriel, the designer behind Thunderball Clothing, got in touch with Arch Enemy and accused me of sending her a “threatening” letter “demanding €500”. While this was completely false, that’s precisely the information that Arch Enemy‘s management decided to use to send me a series of messages (which, at first, I thought were still coming from Marta):
I would like to ask why you are sending discontent emails to people sharing the photo of Alissa? Alissa’s sponsors and fan clubs are authorized to share photos of her. Thunderball Clothing is a sponsor of Alissa and Arch Enemy.
Arch Enemy loves to have a nice cooperation between photographers, fans and festivals, and sharing moments from the concert is a way to stay connected. Generally speaking, photographers appreciate having their work shown as much as possible and we are thankful for the great photos concert photographers provide.
Please let me know if there is really a problem here or merely a misunderstanding.
The message was putting forward the idea (a common one among some people) that because members of the band were in my photos, it meant that the band (and their sponsors) were authorized to use it however they wanted. This made no sense since, although there are some restrictions (for example, I can’t use a photo of Alissa to promote a product, unless she expressly authorizes me to do so) I am the only one who gets to decide how and where my work is used. To put it in legal terms: I own the copyright over my photos.
The message also sought to perpetuate the ridiculous system that some bands expect to have with photographers: They let them come into the pit, expect to have the absolute and perpetual right to use the photos in whatever way they want, and pay photographers in “exposure,” by using their work before a massive audience. In the past, artists like Taylor Swift, Lady Gaga, and even The Foo Fighters, have gone beyond merely assuming that they have this right, choosing instead to force concert photographers to sign contracts where they have to, quite literally, surrender all of their rights over the photos. Aware of the fact that most photographers are not exactly versed on legal terminology, that photo pits aren’t great places to read contracts, and that many photographers simply can’t afford not to shoot a big band, artists have been able to profit from the many photographers that, for whatever reason, end up signing their rights away.
Still, trying to give them the benefit of the doubt (as I still thought that I was dealing with Thunderball Clothing and not with Arch Enemy directly), I sent a reply where I again explained my position:
Thank you very much for your message.
I believe that there is a fairly significant misunderstanding regarding how copyright works, and which leads to your confusion on this matter. I am happy to explain the current state of the law here, so as to highlight the strength of our position.
It is not correct, as you assert, that “Alissa’s sponsors and fan clubs are authorized to share photos of her.” This is not at all a legal argument, as the only person who can authorize the use of a photo is the copyright holder. In this case, as you certainly know, I am the copyright holder of the photo, and therefore the only party who is able to authorize its use.
While, in general, I might allow fans or even the musicians [themselves] to use my work, this does not change the fact that I hold the right to authorize or deny the use. Additionally, here the images are used for promoting a business. In this case, as you undoubtedly understand, the images are used to increase the visibility of your products and drive up sales, allowing you to profit from my work without any revenue being reported on my end.
In regards to your assertion that many photographers are happy to see their work exploited for free for “exposure”, I can only say that other photographers are free to deal with their work in whatever manner they please. Their right to oppose such a use, however, remains the same.
It is in light of the above that I would like to give you the opportunity to remedy the infringing use of the photo by donating to a cancer charity (the Dutch cancer [society]) in lieu of a direct payment of a license.
As soon as I sent the e-mail I realized that, in reality, I had been contacted by Arch Enemy‘s management, and not by M. Gabriel. To avoid any confusions, I immediately sent a follow-up:
I just realized that the message was not sent by Marta, but by Arch Enemy directly. Could you tell me who I’m speaking with here?
As for Arch Enemy, I did not object to Alissa‘s use of my photo (I even spoke about the use with her after she posted it) although, of course, this would be my right. The problem is that now my work is being used to promote a product.
I hope the above clarifies the situation.
Although this wasn’t the first time a company used my work illegally, it was definitely the first time a band came out to defend the infringer. Most people realize that they screwed up and simply apologize. This is especially true when you’re dealing with artists, who obviously are much more sensitive to the problem of not being compensated for their work. It was because of this that it felt so humiliating to have to explain to another artist why my art, and my work deserved the same level of protection and respect as their art.
Having sent what I was sure was a clear explanation, I assumed I’d get cookie-cutter apology arguing that there had been a “misunderstanding” about the rights over the photo. By then I knew that the cancer charity wouldn’t get anything but, at least, I thought someone would acknowledge that they screwed up. What I absolutely did not expect was that I would be contacted by Angela Gossow, Arch Enemy‘s manager and former singer, who’d send me what basically amounted to a “Fuck you and your photos”, fabricating facts, and copying other people in the music industry in the hopes of affecting my future as a photographer:
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 below was not from Marta, but from Alissa 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.
Although I was bothered (and slightly starstruck by the fact that a singer I liked in my childhood not only knew my name, but also thought I was an asshole), I tried to keep my cool. So, copying the same industry insiders that Angela had gone out of her way to include in the correspondence, I sent a short reply:
Thank you very much for your message.
As I explained directly to Alissa on Instagram, she was free to use my photo on her Instagram, and welcomed her to do as much. I routinely allow fans of the band to use the photos I take of her, and even [others] musicians [that I have photographed]. As an artist yourself, however, I’m sure you believe that you should be compensated for your work when it is being used to promote products.
I think it’s regrettable to see that your reaction to an artist reasonably requesting compensation for the use of the work is so dismissive and disrespectful. I fail to understand the rationale behind it, since I have maintained a respectful tone throughout my communications with you.
As for the price tag, I routinely work for much higher amounts. In this case, however, I requested a donation of €100 to the Dutch cancer foundation by the company that was exploiting my work. I would receive absolutely no part of this money.
I sincerely regret the reaction of banning me from the band’s performances as a photographer, but that’s certainly your prerogative.
Have a fantastic day.
For reasons I absolutely failed to understand, I had been accused of “threatening” someone for merely explaining that licenses need to be paid, mocked for the value of my work, and had my words and actions blatantly misrepresented. To make matters worse, Angela Gossow was very openly stating that she expected all photographers that cover Arch Enemy‘s shows to do so for free, to the benefit of the band. After all, as she herself had said, “no band wants to have photographers on site who later send such threatening correspondence to monetise on their images.” Considering that, in her view, “threatening” meant asking for payment, it was obvious that she expected most photographers to work “for the love of the art”.
Just to get them out of the way, I think it’s worth clarifying some of the points raised by Angela, so as to avoid confusions as to what I did or did not do:
- I have never tried to sell Alissa White-Gluz or Arch Enemy anything. In fact, I had briefly spoken with Alissa on Instagram telling her that I was happy she liked my work after she reposted it.
- The only party that I contacted about a licensing issue was Thunderball Clothing. I never contacted Arch Enemy or made any “demands” from the band or their label.
- I never sent any “threatening correspondence” (as the messages clearly show). It’s not only that asserting my rights as an artist is not a “threat,” but also that none of my messages had even included any mention of legal actions or repercussions.
- I never “demanded” a payment of €500. Instead, I explained that this was an amount that I could charge for the use of my material in a commercial setting, but that I was happy to let it go for €100 to be given directly to a charity benefiting cancer patients and cancer research, the KWF Kankerbestrijding. Some might argue that even bringing up the €500 is obscene, but try going to a store, walking out with something without paying, and see if you can haggle over the price after security stops you on your way out.
Later in the evening, considering that I had already been in touch with her directly, I reached out to Alissa in the hopes of clarifying what clearly seemed to be a misunderstanding. It didn’t go well. Sadly, Alissa was quick to portray me as some sort of bottom-feeding scum trying to score an easy buck. I was even accused of, potentially, being the kind of person who would “pursue” fans for sharing the image, even though right now there are dozens of fans that have exactly that same image on their fanpages, and against whom I have taken no action (other than occasionally asking them not to crop or edit them, and to make sure they tag me), despite being fully entitled to do so.
Dying of Exposure
Arch Enemy‘s stance in regards to photographers, as demonstrated by the band’s very aggressive approach against me for simply seeking some form of compensation from one of their sponsors, shows their absolute disregard for artists whose art isn’t their art. They (as they should) expect compensation for their work, but they don’t seem to think that others should be compensated as well. As a matter of fact, and as Angela Gossow‘s actions clearly show, they will try to stomp and trample on anyone who seeks such compensation. Nothing else can explain why she went out of her way to contact bookers and promoters, hoping to end my photographic career.
What I find most terrifying about Arch Enemy‘s behavior is that it creates a chilling effect among photographers, all of whom are now expected to simply shut up and take the abuse, unless they are willing to risk their artistic careers. While I have the good fortune of not depending on photography for my income, many other photographers aren’t so lucky, and so they cannot afford to run the risk of being blacklisted, knowing full well that it could, quite literally, make it impossible for them to make a living. As evidence of this, in the writing of this story I approached a number of high-profile music photographers who, once they realized the band that was involved, did not want to be anywhere near it. They agreed that the system was terrible, and that what Arch Enemy and their sponsor did was wrong, but they did not want to risk ending on the band’s bad-side.
Another problem with Arch Enemy‘s approach to copyright (in this case to protect one of their sponsors) is that they don’t use the same standards when it comes to their own content. After all, Alissa herself had told me that they regularly take down sites that illegally profit from their intellectual property, and Angela herself recently shared a link highlighting the problem with counterfeiting. Of course, it goes well beyond the mere selling of counterfeit material, as I discovered with a very simple experiment: I uploaded the full version of their song “The World is Yours” to Youtube, where it was immediately flagged as infringing on their copyright, and filled with ads that would go to benefit them instead of me (don’t worry Angela, I deleted the video already). Incredibly enough, Arch Enemy are not satisfied with the exposure that this video would give them.
It is certainly ironic to see that this situation was created by a band of alleged anarchists that proudly parrot anarchist and far left slogans like “No Gods, No Masters” and “Under Black Flags we March,” while exhibiting the same kind of bully behavior that you’d expect from their corporate nemeses. They exhibit a worrying willingness to perpetuate the power structures that trample over the weak to benefit the powerful. Maybe now that they have attained the fame and money that they so strongly criticized in others, they fear that there isn’t enough to go around.