Ariana Grande’s “Sweetener” World Tour is not so sweet for the press photographers tasked with capturing her star power on stage. Major media outlets including The New York Times, Associated Press, and the Los Angeles Times have joined forces with the National Press Photographers Association to protest the pop star’s markedly restrictive photo policies. According to the contract Grande currently has professional photographers sign, “all rights (including all copyrights) in and to the photographers shall be owned by [Grande’s touring company] as a ‘work made for hire.’”
What does this mean, and how does it disrupt the typical rights of photographers? Under U.S. copyright law, a photographer automatically owns the copyright to their image at the moment of the image’s creation. The exception to this rule is when an employment contract includes an explicit “work for hire” clause, which specifies that the photographer’s work has been commissioned exclusively for the employer’s use (such as a staff photographer working for a news publication). Media outlets argue that by forcing press photographers to deem their images as “works made for hire,” Grande’s team has essentially transformed them into unpaid employees. Grande can use their images for marketing, advertising, and social media purposes, without the photographers ever seeing a dime. And to make matters worse, the photographers can’t even showcase their work without written consent from Grande.
Though media outlets argue that Grande’s photo policies are extreme, they are not without precedent. Taylor Swift received similar criticism during her 1989 tour. Though she did not explicitly claim the photographers’ image copyrights, she took away any power the copyright holder may have held, requiring photographers to abide by strict usage rules and to let her use their work for any purpose in perpetuity. Some photographers have pointed out Swift’s hypocrisy in standing up for musician’s rights on Spotify, yet denying photographers the same opportunity to get paid for their work. Swift has since relaxed some of her strictest policies, such as one that authorized the destruction of images–and even equipment–of photographers who violated the terms of her contract.
However, even if photographers are not forced to sign a “work made for hire” contract, their image rights may not be so black and white. A photographer may own the copyright to a photograph, but they do not own the rights to use a subject’s likeness for commercial use. This means that a freelance photographer, unburdened by a contract, can snap a photo of a singer and license that image for editorial purposes (by asserting that the image is “newsworthy” and thus shielded by the First Amendment), but they cannot use the image to promote a product, service, or idea.
Despite these restrictions, the rise of social media made it increasingly difficult for celebrities like Grande to control the use of their likeness and personal brand online–hence such reactive image policies. While Ariana Grande claims to be responding to “greedy” photographers who sell her images for use on unauthorized merchandise, artists like Beyoncé fear being “quickly memed” from photos they deem unflattering.
Though the digital age has certainly increased such problems for celebrities, it has also placed unfortunate pressures on professional photographers. As photography becomes more accessible through mobile phones, free online galleries, and affordable equipment, “super fan” photographers are on the rise–and they’re willing to give away their images for free, leaving professional photographers with very little leverage over exploitative image policies from celebrities like Grande.
Matt Shields and Susannah Benjamin are Entertainment Highlight Contributors for the Harvard Journal of Sports and Entertainment Law and current first year students at Harvard Law School (Class of 2021).
Image: Berisik Radio.com, Ariana Grande – The Honeymoon Tour Live Jakarta (5), CC0 1.0