For Lady Gaga, Copyright Not About Music, But Her Image
from the it's-about-image-control,-not-business-model-control dept
A series of recent stories about Lady Gaga show an interesting view of copyright law from team Gaga. It quickly becomes clear that, contrary to the stated purpose of copyright law, Gaga doesn't view copyright as a way to incentivize her music creation or even to protect her music. Instead, it's all about protecting her image. A year ago, we noted that Gaga and her label made sure that her music was widely available for free (legally) to increase exposure, knowing that she would make money elsewhere (notably, Lady Gaga is signed to a 360 deal which gives her label a cut of touring, sponsorship and merch sales. That "job" she has as "creative director" at Polaroid? Yeah, Interscope/Universal gets a cut of that as well.) Lady Gaga, herself, has said that she doesn't care about piracy, saying that she knows that as more people download her music, she'll make it up on tour, saying "it's just the way it is today."Okay, so she's good with free music and making money elsewhere. But she's still turning up as a copyright bully in certain cases. We just covered her silly complaint (not specified, but probably a publicity rights or trademark) against the makers of Baby Gaga ice cream, but in the comments to that article, it was pointed out that Gaga recently demanded that photographers at her concerts hand over the copyright to all the images they take. It also included strict limitations, saying that the photographer and his or her publication could only use the image for 4 months before having to take it down. The article notes that a few other bands -- the Beastie Boys among them -- have similar clauses in their photo release forms.
This clause has apparently gotten many photographers pretty upset, especially concerning some comments from someone who worked with Gaga who "questioned why photographers automatically own copyright on their work, since it's the artist who does the show."
While I won't step in between the photographers and the supporters of the musicians, what really strikes me about this is just how twisted copyright has become these days for folks like Lady Gaga. Reading through these stories, it's clear that she's not using copyright as an incentive to create music at all. Instead, it appears its sole purpose for her is to act as a tool for control over the use of her image. Perhaps that's fine, but that's certainly not the official reasons for copyright, and in an age when we hear about how important copyright is to artists, it seems worth noting just how much it's been twisted for totally unintended purposes here.
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Filed Under: copyright, culture, image, incentive, lady gaga
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Gaga isn't a musician, she is a brand. A name, an image, a tightly managed promotional machine. The music is mindless (and a complete ripoff of Madonna, which she appears to be trying to follow). She is grooming herself for a career not as a musician or a performer, but as the character of "lady gaga".
The photography deal is interesting, until you look at the basis. It isn't "free press", rather it is a question of work for hire. You take pictures (which we grant you limited time use for) in return for access to the event to take them. The photographers are more than free to not accept the work for hire offer, and can choose not to take pictures at her events. These are not public events, they are closed private "pay to enter" concerts, and yes, her people can impose almost anything provided it isn't specifically against the law. It is up to the photographers to agree or disagree.
They aren't twisting copyright. They are taking control of every part of the "brand image" process, working hard to make sure that the Lady Gaga brand is polished and presented in the best way possible, in a control manner.
She doesn't control images taken in public places, nor can she seek to do so.
Understanding what they are doing, and understanding how they are using the copyright and contract laws very carefully to achieve their goals is key. No twisting, just hard work.
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Given that, it makes sense she is concerned about copyrighting all dimensions of her performance art (at least this dimensions that are captured on a permanent medium.)
Her issue with photographers seems to be a contract or licensing issue. She is talking about photographers who are provided privileged access at her shows, I imagine. I can see how she might try to leverage copyright in exchange for that privileged access. I don't know if what happens if she asserts photo copyright as part of the standard admission ticket license.
Gaga is not alone as a musician cum performance artist. Clearly OK Go fits within this realm, as did David Byrne and David Bowie a generation ago.
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Given that, it makes sense she is concerned about copyrighting all dimensions of her performance art (at least this dimensions that are captured on a permanent medium.)
Her issue with photographers seems to be a contract or licensing issue. She is talking about photographers who are provided privileged access at her shows, I imagine. I can see how she might try to leverage copyright in exchange for that privileged access. I don't know if what happens if she asserts photo copyright as part of the standard admission ticket license.
Gaga is not alone as a musician cum performance artist. Clearly OK Go fits within this realm, as did David Byrne and David Bowie a generation ago.
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Copyright doesn't exist to protect "brands"; trademark does. Using copyright as a legal bludgeon against people in order to control your "image" is a horrendous abuse of the system.
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You'll note that I never said differently. There are all kinds of legal actions a person might take that would still make them a shitty person.
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Anyway I totally agree that she is a brand, not a musician in the classical sense. She wants to keep that brand under control. They are probably using the only laws that are available to keep her image the way they want.
I can see the 4 month clause on photographs because one of the things on her brand is her ever changing style, so she wants to make sure that "old" styles are gone. As you've pretty much suggested, she's using her music to sell her brand. And they are doing all they can to make sure that brand is shown in the way they want it shown. Time will tell if it's the best idea for her.
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All the imagery (and as one person called it, performance art) is to overcome the shallow nature of her music, and to instead sell "Gaga inc." to the world. She isn't abusing copyright at all, just putting very strict limits on what is out there, because the image does have to stay current and ever moving to be interesting.
The story has little to do with copyright,and much more to do with intelligent, well planned out marketing, the type of "connecting with fans" that Mike can only dream of.
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I'm doomed to address this every time Lady Gaga is mentioned. (Thank you copy/paste).
While I'm not a great fan of her style of music, to claim that she has no talent is funny. She started playing piano at four and was performing at open mike nights at fourteen. 'Oh, well that doesn't mean she was any good' I imagine you will say, but then she was admitted to the Tisch School of the Arts when she was seventeen. If you're still not convinced then here's an early clip, which I like a lot more than her famous stuff.
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She's both, actually, but I'm not sure what that has to do with anything.
The photography deal is interesting, until you look at the basis. It isn't "free press", rather it is a question of work for hire. You take pictures (which we grant you limited time use for) in return for access to the event to take them. The photographers are more than free to not accept the work for hire offer, and can choose not to take pictures at her events.
That's not even close to what work for hire means. Work for hire means you're a full time employee and creating works for the company. Did you get confused here?
And yes, obviously Gaga is free to put whatever conditions she wants on access. No one said otherwise. We're just noting how she seems to be using copyright in this manner, while not caring about it on the music. That was the point, as stated clearly. You now seem to be restating my point -- with factually inaccurate statements -- and trying to suggest I've said something wrong. Odd.
They aren't twisting copyright. They are taking control of every part of the "brand image" process, working hard to make sure that the Lady Gaga brand is polished and presented in the best way possible, in a control manner
Except... no. Brand image is protected by trademark, not copyright. And asking the press to hand over their copyrights is generally considered a no-no.
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Certainly many aspects of "branding" are controlled by trademark. But that is not to the exclusion of copyright on visual works. If she wants to have copyright control over her visual works (or those created "for hire" for her), then how is that contrary to copyright principles? It's just a choice to use copyright on some works and not others (and that assumes she has exclusive copyright ownership of the compositions and sound recordings, which she might not).
Also, who cares what "is generally considered a no-no?"
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In this case if the photographers have gotten some form of reward (money or other goods/services in exchange) and the photographs are part of the offer than yes Gaga Inc. could have a case of ownership.
If as is the real case here, the photographers are not in any way shape or form given an exchange for service, and purchasing a ticket to see a concert/show/etc in no way creates a work for hire contract, in fact it could be unconscionable behaviour to place them on the ticket in first place.
Therefore the photographers own the copyright in their creative works (ie: the photographs) no matter what conflation Gaga Inc. try to state.
And this isn't just Gaga Inc. doing this, a lot of Bands are trying to forbid photographers from both professional and amateurs, whom are called FANS, from taking pictures because they claim erroneously that they OWN the copyright on all images of their visage, production, act, etc etc yada yada.
It would be very Interesting for any person whom gets sent a Copyright Infringement notice under this methodology to then state "fine, I will Cease and Desist and pay you a stipend of the profits, if any, but first.. you owe me xxx$'s for my time and labour".. oops!
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That is simply not true under U.S. copyright law.
A word made for hire is defined as a work that (a) is created by an employee in the scope of their employment, or (b) a work that is created by an independent contractor subject to a written work made for hire agreement AND fits into at least 1 of 9 statutorily prescribed categories.
In this case, the works are probably not "works made for hire."
However, Gaga's consent for her name/likeness to be used in the photo is conditioned on an assignment of copyright. So, either the photogs assign their copyright ownership to Gaga, or they can't use the photos without a substantial risk of violating Gaga's publicity/personality rights.
Additionally, Gaga may have a legitimate argument to be a joint owner of the photo copyright in the first place because she (as contributor of the designs, visual elements in the photo) may be considered a joint author. That's a little bit dicier proposition.
As for your "you owe me for time and labor" bit, that's ridiculous. I can't force you to pay me for something you never asked me to do or agreed to pay me for.
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If they don't want to hand over their copyrights, they can take their pictures from in the crowd like everyone else. I think that's fair.
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That's not even close to what work for hire means. Work for hire means you're a full time employee and creating works for the company. Did you get confused here?
Work for hire isn't limited to employees. Work for hire can be done at any level, including contractual. As an example, a photograher could be hired to shoot a wedding, on a contract flat fee, and as part of the contract assign the rights to the images to the bride and groom. He is working for hire, and once paid, has no rights over the resulting product.
Contract work can be work for hire. It is basic contact law when you think about it, you do X for valuable consideration, with the following restrictions. That can make it a work for hire situation.
You may think it is a "free press" situation, but her contract and terms change that completely. If they choose not to accept the work for hire contract, they do not receive the valuable consideration (access to the event) as end up with no photos.
Work for hire can be an employee, but it can also be a contracted employee. The way things are going these days, almost everyone works on contract, short and long term.
Anything else you would like to punt this week? It's only Wednesday.
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You say this with such confidence. It amuses me because you don't know what you're talking about.
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Work for hire.
Next.
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Which one applies here?
Please be specific in your apology for getting it wrong and then still insisting that you were right.
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"a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work"
If Lady Gaga turns the photography agreement into a "paid to take pictures" where she gives a valuable consideration (concert access) in return for "a work prepared by an employee within the scope of his or her employment". Valuable consideration is payment of employment.
One could also argue that her entire life is an ongoing audiovisual work, and any images taken which become part of it (that she pays for with valuable considerations) would be work for hire (as part of that audiovisual work).
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C'mon, dude.
If you're going to be like that about it, you really ought to apologize for your mistaken assertion that wmfh only applies to employees (and continued failure to address that mistake).
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Just to be clear here, the reason why this has *absolutely nothing* to do with the work-for-hire doctrine, which it appears you are wholly ignorant of -- is because Gaga has not hired these photographers. At all. There is no work for hire question. She has not hired them to photograph her. They are press. They work for different news organizations and are seeking access to photograph her for news purposes.
Work for hire has *absolutely* nothing to do with this. You were wrong, and I gave you an easy out for you to admit that you got confused.
Instead, you doubled down.
Incredible.
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As long as we're picking nits, and assignment is not a work-made-for-hire either. They are two different things, with some different legal consequences.
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There are plenty of contracts out there that *say* a work is a work made for hire, when it is actually not a work made for hire because it doesn't fit into 1 of 9 statutorily listed categories.
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Except when adults assign their copyrights for the right to have exclusive access to her events.
We're just noting how she seems to be using copyright in this manner, while not caring about it on the music.
She doesn't own the copyrights in her music so how would she enforce them?
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This is not "adults." This is the press. (ha ha) I'm sorry if you don't understand this, but most in the press find such requests highly objectionable. Hence the story.
But, really, that isn't the point. The point is to highlight her different views on copyright depending on the situation, and how her use of copyright here has nothing to do with her music. I found that interesting.
You don't. Your loss.
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Now, I don't know if that's true. She may have some joint ownership of the composition copyrights (as opposed to the sound recording copyrights). But it is relevant to your point of her treating different works differently.
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Whether or not you like her music, she is a musician.
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She even writes other artist's songs.
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You Said It
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Yes, she appears to enforce copyright more strictly w/r/t visual works than musical works. Why is that not in keeping with traditional copyright purposes?
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In fact if some wannabee came along and copied her costume and sung her songs then she would have an absolute case of Copyright Infringement.
Here though there is no Infringement because it is an absolute transformation of that visage to an absolutely separate and distinct medium. PHOTOS!
It is the same as if I went to one of her concerts, and then went home and copied down onto canvas with my crayons what I saw there and then sold it. It is a transformative process, though with me probably a crappy process cause I cant draw for shit ;)
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That's just not the way the law works.
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without it being a specific performance its not subject to copyright.
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Have you ever seen a Lady Gaga show? It's definitely a visual performance.
How is showing up to the Grammy's to be born from an egg not a performance?
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RE: Know this one?
Fan: Who's there?
Artist: Control freak.
Artist: Now you're supposed to ask, "control freak who?"!!!
Fan: Geeeeze...
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She also said this: "I don't believe in how the music industry is today. I believe in how it was in 1982."
Mike Masnick seems to be obsessed with music piracy and doing anything possible to protect it. He also consistently tries to paint it as something good, which it isn't.
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Given how everyone ripped her apart over the unsupported claims in the breast milk ice cream thing, had it occurred to anyone to actually ask her?
She is media savvy, she controls her image, but she also understands the business more than people seem to think.
It is far to easy to say this was HER doing, but given the number of label people around and the left hand not knowing what the right hand is doing, before we burn her at the stake, can we at least ask her if she is a witch first?
She might not even have been that aware of the incident or the fallout, and if you bring it to her attention you might find out she is annoyed that this was done in her name and has banned that label lackey from working on her tours.
She is very aware she needs media attention, and it is doubtful she would knowingly bite the hand that feeds her in such a stupid way. Now a label exec, I can see them making this kind of stupid error in a heartbeat.
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Incentivizing creativity and "Lady Gaga"
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Thank Goodness its a Trademark: USE BY DATE JULY 2011
Not that I've even listened to her music, but at least she clearly understands the Dynamic of the Current "Download Culture." The 360 deal will become a means for them to justify the likes of Gaga as a Trademark more and more. Whether you view it an abuse or not.
@-Post [2]Anonymous Coward, Mar 9th, 2011 @ 10:52am
I agree with this in part. However, I dislike what this is doing for the industry. The redefining of what in this case is a musician as a brand. But this technological revolution that your fueling with debate on copyrights will create more Gaga's and artists that define themselves as products therefore protected by some form of Copyright & in other areas TRADEMARKS.
I think Gaga's mental space is Fashion / Performance driven.
She see's her Character "GAGA" as some fashion label come performance show. Not unlike the catwalk. Therefore she feels justified in placing a 4 Month limit on an image as a designer would for a season, whether fall, spring or summer.
In fact, its not uncommon for products to be pulled from shelves after this time has elapsed. Some even reserve the right to destroy it too. Of course the sellers are compensated.
What do they do in Theater Shows?
How about Art Installations?
Can a product have a shelf life?
In the case of Gaga's meat coat I reckon the Health Authorities might be in agreement.
I'm no legal expert, but a work for hire is a contractual instrument of LAW between two consenting parties, whether money is exchanged or not. The length of the employment is irrelevant. If they agree to 4 months shelf life on photos, then thats their problem. If they didn't profit from it, you can bet they wouldn't bother.
The Free Press don't need to be in a PERFORMANCE to give her any press. If they capture any part of a PERFORMANCE, she may reserve rights or set conditions in exchange for exclusive access. You don't have to like it, you reserve the right to say NO.
Anyhow, since when is press ever free?
By virtue of the word free, you know there is always some cost or sacrifice. Maybe some believe they're free to do what ever they like?
If Miss Lady Gaga [ royalty ?] wishes to be a damn product, she should go and register herself as a Trademark. Then have the LOGO tattooed on her forehead so we all know. Whilst your at it, don't forget the expiry date!
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