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March 09, 2011  | by: Kerri O'Malley

A Gorgeous Gaga Concert Photo Taken by Abbey Braden

Lady Gaga’s hitting headlines again with a new controversy that pits the celebrity against important purveyors of her success: concert photographers.  It seems that as the singer makes her way around the country on her latest tour, she’s imposed unusually strict rules for photographers documenting her performances, including claiming copyrights to all the images taken during her shows.

Gaga in Concert

Last Thursday, the Washington D.C.-based website TBD uploaded a copy of Gaga’s photo release form, which specifically states: “Photographer hereby acknowledges and agrees that all right, title and interest (including copyright) in and to the Photograph(s) shall be owned by Lady Gaga and Photographer hereby transfers and assigns any such rights to Lady Gaga.”

This stipulation not only kept TBD’s photographer from shooting the event, it also caused a ricochet of anger amongst ill-paid concert photographers.  Without copyrights, the photographers can only gain their one-time fee (estimated at under $200) for attending and photographing the concerts, losing any money that would come from selling the image to be published in additional websites or print publications.

So it’s kind of a jerk move on Gaga’s part.  But beyond that, it may also overstep the bounds of the law. According to copyright law, copyright “exists from the moment the work is created.”  In this case, the work is the photo, which means it exists from the moment the photographer snaps a shot.  Or does it?

Gaga Live, Photo by Andy Sheppard/Getty Images

As an artist who constantly runs into copyright issues, it pains me to hear that more annoying rules are being put into place to prevent the re-interpretation and sharing of pop culture images.  Come on guys, can’t we all just be friends?  Yet, on the other hand, Gaga has said before that she considers every moment of her life to be a piece of art.  More than any other pop star, Gaga’s concerts are clearly performance art.  Made to be watched, captured, and shared, I’m sure Gaga thinks about how photos from the shows will look and plans accordingly.  So does she have the right to own them?

“Just because she does the show doesn’t mean that she has the talent or ability to capture the image,” BestMusicLive editor Erik Thureson argues on the Music Photographers Facebook page. “That would be like the venue saying they own the rights to that show’s music because it is played in their house.”

“It’s utterly disrespectful of the time, the effort and the creativity of the photographer,” concert photographer and intellectual property lawyer David Atlas tells Rolling Stone. “I think it’s some misguided need to control the images that are out there, but she has so little control over those images.”

Gaga in Concert

Gaga isn’t the first musician to put their foot down when it comes to concert image copyright.  Oddly, the Foo Fighters and the Beastie Boys have similar photo release forms.  (Madonna, Gaga’s grandma, doesn’t.)  Still, Atlas notes that such strict guidelines aren’t in place for award show pictures or paparazzi shots.  Why single out concert photographers?

In Gaga’s case, the argument that concerts are the most direct by-product of a band (award shows and paparazzi shots, not so much) falls a little short.  Since the megastar does art direct every minute of her life, all of her appearances, from shows to the streets, reek of performance.  On top of that, Rolling Stone reports that there are currently TWO different versions of Gaga’s photo release form, one with the copyright claim and one without.  Who gets to keep the copyright?  The big players: major newspapers, magazines, and photo conglomerates.  Who loses out?  The little guys, mostly websites and blogs.

“Typically the person who has the least leverage gets the worst release,” Atlas told Rolling Stone. “Maybe there’s a photographer that she likes who won’t have to sign the release form, but the people who get paid $125 to hang out for four hours at a concert have to sign this release. So on top of getting paid very little, they have no ongoing revenue stream from these photos whatsoever.”

TBD argues that Gaga has consistently favored print publications over websites at her concerts, pointing out that, especially for a singer who owes much of her success to the Internet, this treatment is utterly unfair.  And I totally agree.  Maybe if the release form wasn’t such a see-saw issue with a thousand exceptions, it would be more of a clear-cut attempt on Gaga’s part to retain the rights to her art.  As it stands now, it just seems shady.

Gaga Live, Photo Credit: Bauer Griffin

With all of these factors against her, what possible motivation does Gaga have to pursue copyright? Steve Martin (not that one), who owns the publicity company Nasty Little Man and whose clients include the aforementioned Foo Fighter and Beastie Boys, offers an explanation to TBD: “[I]n my experience it often comes from artists who’ve been stuck having to pay a ton for a shot they want for a box set, merch, etc. [H]aving the parameters set for such transactions in a legal document can keep that from happening in the future.”

For Gaga, owning as many rights to her image as she possibly can is doubtlessly important.  More of a visual sensation than a music sensation, Gaga is defined by her outfits, her performances, and her photographs.  But even in an age ruled by Gaga’s eccentricities, there’s room for more than one artist here.  The photographers deserve recognition, and they deserve their copyright.  Yeah, maybe Lady Gaga will have to pay a lot of money to put her own picture on a lunchbox in a few decades.  But with the kind of dough that monster is raking in now, I think she can afford to support a few more starving artists just trying to get by like she once was.  Give it up, Gaga!

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