On a monthly basis, Taylor Swift has done things in the trademark and copyright worlds that have the mainstream and entertainment media talking about IP.
A lawsuit defending a favorite trademark Lucky 13? Routine. Filing a slew of trademark applications to protect possibly valuable names? Happens every day. Getting Apple to back down on royalty payments with the mere stroke of a pen? Rockstar. Use of her photographs from concerts and other appearances? A tough approval.
Much was written about her success in getting Apple to abandon its 90-day trial period. That was really more about policy than intellectual property rights.
As to photographers? What Swift is doing is not forcing photographers to relinquish their copyrights.
Celebrities have rights to control use of their images for profit. So if a photographer takes a picture of a celebrity in public, the photographer can own the copyright, and is free to sell the picture to someone for a profit.
If the photographer owns the copyright, but does not have the right to sell the image, ownership of the copyright is effectively worthless.
In Taylor Swift’s concert photo policy, what you see is a clear power play. If you want to photograph our concert, then you are given credentials, provided you agree to the terms. The issue is not so much whether it is lawful. The only question is whether this is “fair?”
Regulating use of photos is hardly new. Demonstrations of the Wright Brothers’ first flights either excluded photographers or admitted photographers only under strict control. According to David McCullough, historian and biographer, Wilbur Wright once marched into the stands to demand face to face to a photographer who brought his photo apparatus in 1908 into a flying exhibition that cameras were strictly prohibited. The photographer gave up his photographic plates to Mr. Wright.
The Taylor Swift defenders, sound bites sound like they were written by lawyers, and we all know how that goes. In claiming that they do not deprive photographers of the opportunity to resell images, they disregard that the photographers’ “right” to resell must have her approval.
Where the photographer cannot reproduce the image without authorization, then the legal right to make and sell copies or reproduce the image – fundamental rights of copyright ownership – become meaningless. Any picture a photographer takes at a concert can be used forever and for any purpose by Taylor Swift, with no compensation to the photographers.
The Apple success was a coup for her and may benefit parties with far less bargaining power. The photographers’ rights issue benefits the photographers because it lets them cover a concert as news. Apart from that privilege – which clearly benefits the publication and the artist both shifts the traditional benefits of copyright so far away from the copyright owner that Taylor Swift and company should not be surprised by the reaction to the photography policy.
Jess M. Collen
Collen IP Partner
Jess Collen’s expertise in the field of trademark law has long been recognized. He has been active in IP practice for over 30 years and highly involved in the profession, having acted in many capacities, including as a member of the Executive Committee and Board of Directors of the International Trademark Association. He is also a featured Forbes.com contributor, What’s Your Trademark?, which focuses on all aspects of intellectual property. Mr. Collen has represented clients in U.S. District Courts and federal Courts of Appeal across the United States in industries as diverse as watchmaking, consumer electronics, high fashion, fashion eyewear, food, entertainment, software, and other industrial and consumer fields. He was counsel in a copyright infringement case argued before the Supreme Court of the United States.