Music: Photography’s Double Standard

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Earlier this week, PDN ran a story about a wedding photographer who found himself on the receiving end of a lawsuit for using Coldplay’s “Fix You” in a wedding video that went viral on YouTube. The photographer settled for an undisclosed amount, but the bigger picture is what a widespread problem the issue of music copyright has become. We’ve been talking about this for years. There’s definitely a double standard that exists in photography, particularly wedding photography, where photographers are quick to claim copyright on their images, but have no compunction whatsoever about using copyright protected music to accompany their photos, whether in a slideshow, or, God forbid, the homepage of their website. We’ve seen a number of sites, from relative unknowns, to several of the “rock star photographers” use music to help sell their services. For some, it may be ignorance or a misunderstanding of the law, while, for others, it’s simply blatant disregard, a roll of the dice, hoping that they won’t get caught.

One of the issues in the article was that clients want the music that was played at their wedding or the song that they fell in love to. From the PDN article: “Photographers are using main stream music more and more and it’s a pretty polarizing conversation,” says wedding photographer David Jay. “Some photographers really feel passionately about it and think of it as ‘stealing’ while some artists want to pay but can’t and others see it as one artist helping another artist promote what they do.” I guess I can sort of understand the promotional aspect, if it were a local band or on a grassroots level, but Switchfoot or, as in the PDN article, Coldplay, probably doesn’t need the help of a wedding photographer to get the word out on their music. If photographers really want to take the “one artist helping another” stance, then they should look at podsafe music, which is exactly what we did for our early photo walk videos. Or, take a look at services like Triple Scoop Music or Smart Sound, companies that have catalogs of thousands of royalty free tracks available for a modest fee. Jay goes so far as to say, “I personally don’t think it’s illegal to use the music and until a judge or jury makes a ruling that it is in this specific type of case I’ll probably continue to be OK with photographers doing it.” I don’t agree. I think it’s become the photographer’s job to know the law, with regard to what they can and can’t use, and educate their clients accordingly. Jay’s positionĀ is not only a fairly “head in the sand” way to look at the issue, but also a potentially costly one to photographers who actually follow his lead. Here’s another way to look at it. Let’s say Lady Gaga decides to use one of your photographs for her tour poster and in the slide show during the concert. Since she isn’t selling the poster, just using it to drive people to purchase a ticket, a t-shirt, or a CD, you’d have no problem with it, right? Fat chance.

Ā Just because you own the CD or downloaded the music from iTunes doesn’t mean you can use that music in a professional capacity, for example, to market yourself or your services. Before the internet, photographers handed out VHS tapes or DVDs to the client, but with the rise of social networking sites like YouTube, Facebook and even services like Twitter, the personal use argument really doesn’t hold up. A million views of that slide show on YouTube also means a million listens of the song behind it; a million listens that the artist sees nothing for. So, if you are a professional photographer, using copyright protected music in one of your “promotional” slideshows, whether you charge for it or not, may once have been a gray area, but is now becoming more and more of a target for litigation. Without obtaining a license to use it, you’re taking a huge chance, especially with the war on IP and copyright getting so much national attention.