We’ve all been to or heard of a concert where posters are up, telling people not to take photos of the performance. At times, photography can make an artist angry enough to stop the concert until people put their phones away. It’s not nice, but we never think there could be legal consequences, right?
Is it illegal to sell concert photos? Yes and no. Photographers can legally photograph anything they want and sell it. However, things get tricky when issues such as the ones below are involved:
- Assumption of public place
- Work-for-hire contracts
- No photography waivers
- Commercial use
If you are hoping to sell some concert photos the next time that you want to hit up a venue, make a point of knowing your rights— and the rights of others around you. This guide will teach you how to make the most of it.
More on the Legality of Selling Concert Photos
For the most part, it is not illegal to take concert photos. Selling the photos, however, becomes unlawful if you’re selling them for commercial use and do not have the permission of the band or venue owner.
There is a slight bit of leeway for people who are selling shots for art’s sake. If you’re using the photos as part of a work of art, you might have more leniency, but there’s still no guarantee that you’ll be able to get away scot-free.
What’s the Worst that Can Happen if I Sell Concert Photos Illegally?
Though selling concert photos without permission from the band is illegal, it’s not a matter that’s enforced by the police in most situations. Rather, it’s grounds for a lawsuit on base of copyright and privacy infringement.
The penalties for illegal concert photo sales vary from state to state, but typically include:
- Cease and Desist Letters. In most cases, you’ll get a Cease and Desist letter from a lawyer prior to any legal issues.
- Lawsuits. Lawsuits are the most common legal action a person can take.
- Ceasing Business Functions. Many lawyers also go after businesses that sell photos on sites like eBay.
How Likely is it That Lawyers Will Pursue Penalties For Illegal Photo Taking?
It depends on the band in question, and how litigious their legal team is. Generally speaking, the more popular the artist, the more aggressively lawyers will pursue action against photographers who sell their imagery.
For some legal groups, this is a personal matter. There are many legal teams who will pursue action against photographers to make a point or to set an example.
Understanding Your Legal Rights and Limits
A large part of avoiding serious penalties over concert photos is knowing what your rights are and what your limitations are as a photographer. See below for some of the more commonly-misunderstood issues concert photographers have to deal with.
Can You Sell a Photo that You Took While Working for Another Company?
This depends on the wording on the contract you have. The best way to find out is to take a look at your contract. These terms can help you understand what you’re working with:
- If you work for hire, chances are that the contract you signs has a specific clause that disallows you from selling the photos you take.
- If the contract says that the client retains all rights to the photos, this means you cannot use or sell any of your shots from that night without their written consent.
- If the contract states that they are going to retain credit for shots taken, you can’t even publicly claim that you took those photos.
What Is Considered to Be Commercial Use?
Commercial use is generally considered to mean that you’re profiting from them, or that they could be used for advertisement. Unless you are shooting the photos for news-related work or for artwork that will later be modified, you are probably doing something illegal.
Selling Photos for Non-Commercial Use
Technically, if you are using your concert photos for a news piece, you’re selling them. Freedom of the press is a First Amendment right that courts rarely ever debate. So, if you’re working on a news article featuring the event, you’re probably in the clear.
Taking Photos that Could Be Deemed Endorsement
Sometimes, just taking a photo while the band is holding a can of soda or standing next to someone is enough to cross a line. If the shot could be deemed an endorsement of a brand, you should not take the photo.
There are several reasons why endorsement-like pictures are so poorly received:
- Bands should be paid for any endorsements they make. Let’s say they’re actually big fans of a product you photographed them with. That’s great, but if they’re giving free press to a brand, why would the brand pay them?
- Faux endorsement shots could also harm any current endorsement contracts they have. Imagine getting an image of a rock star drinking a Pepsi, only to find out they had a contract with Coca-Cola. Their contracted endorsement would likely sue them, and that lawsuit would partially be your fault.
- It can mess with their brand. Bands that are notoriously against capitalism would be fuming if they found shots of them “advertising” things.
- It’s generally not fair to them. If someone was making money off your shots without your knowledge, wouldn’t you be a bit upset? The brand or person they appear to be endorsing might benefit from the shot. You might benefit from it, too. The only one not benefiting from it is probably the band you photographed!
Understanding Assumption of Public Place
When people take concert photos and sell them. The law allows people to take photos of others in public spaces since there’s no assumption of privacy. Concert venues might say they’re open to the public, but that doesn’t make them public spaces.
What if We Were Invited to the Show?
Invitations themselves might seem like a promise to be lenient to photographers, but it’s best not to assume anything. Before you try to sell any photos, prints, or items involving photos, it’s best to double-check with the organizers of the event.
Some managers invite photographers to the show in hopes of getting good social media photos, or in hopes of getting press images in return. Asking managers what they’re expecting from you is the best way to clear up misunderstandings.
Is There Any Way to Legally Sell Concert Photos?
The only way to legally sell the concert photos you took for commercial gain is to get the express written approval of the people who are in the photo. In most cases, this means reaching out to the band themselves.
If you’re being hired to take the band’s photos, then you have a couple of options. Before you start shooting, you can ask the band (or their legal team) for a clause that lets you sell copies of the images for commercial or artistic use.
The Overall Verdict
Though it seems like a victimless crime, the truth is that selling photos taken during concerts is illegal. It takes away money that should be going to the band, and it causes them to earn less than they should. Depending on the band, this could make or break their ability to make ends meet.
The best way to ensure that you don’t get sued or hit with nasty letters is to get expressed, written permission from the bands and the management before you make a shoot happen. Otherwise, you run the risk of getting into some seriously nasty legal problems.
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