2017 In Review

Another year, another retrospective of my concert photography adventures.  I always look forward to writing these posts because it's often easy to forget about the shows I shot just a month or two ago, much less a year ago, and this little trip down memory lane is a great reminder of all the fun I've had in the last year.

As always, this is obviously not an exhaustive list of the shows I've shot, nor is it a collection of my favorite or best shots.  But each shot tells a piece of the story, and every show carries some special weight for me.  And truly there's been some amazing shows this year, so let's get into it.

First up, Fox Mulder!  Correction, that's David Duchovny, the X-Files actor who has created a second career for himself as a rock 'n roll artist.  When I heard that David would be playing at a smallish basement club in San Francisco, I knew I had to shoot it.  The X-Files were must-see TV for me back in college, and I'm pretty sure that was true for the entire audience at his show as well.  I was given the opportunity to shoot the entire set, and though the light was not ideal, I was pretty happy with the shots I was able to get.  You can find more of those photos on the blog post I wrote after the show.

David Duchovny

David Duchovny wasn't the only hero of mine I had the chance to photograph in a small club this year.  I was also grateful to catch Filthy Friends, a musical collaboration that features Sleater-Kinney frontwoman Corin Tucker and R.E.M.'s legendary guitarist Peter Buck.  

R.E.M. was one of those bands I didn't appreciate until I was in college, right around the time Monster and New Adventures in Hi-Fi were propelling the band to new heights.  But once I discovered that they had more songs than just "Shiny Happy People" and "Losing My Religion", I was hooked.  Peter and his distinct Rickenbacker guitar tones were a big part of why.

Peter is an interesting guy.  He helped define one of the most important and popular alternative rock bands of all time and is revered by some of the greatest musicians alive, but since R.E.M. broke up in 2011 he records and tours with his numerous side projects, slumming it in tiny clubs and just playing music for the fun of it.  The man cares nothing for the music industry, for the expectations put on musicians, for the fame.  He cares about making music, and that's it.  I expected him to be too important, too famous to dwell amongst the fans after the show was over, but there he was, signing autographs at the merch table like a hungry young musician might.  There's something deeply inspiring about that no matter what form of art you create.

Peter Buck of R.E.M., Filthy Friends, and a bunch of other bands you probably haven't heard of

Since we're on the theme of small clubs... one of the most fun shows I had the chance to cover this year was in a small club in New York City called Irving Plaza.  I found myself traveling to the Big Apple this spring for a conference related to my day job, and since I was traveling alone I knew I'd have some time to kill in the evenings.  Lo and behold, it turned out that The Band Perry, a now-massively famous country band that I once photographed performing outside the cafeteria at Yahoo HQ before they became famous, would be squeezing into Irving Plaza to play an intimate show for fans and industry folks, debuting a little of their new pop-oriented sound.  I worked a few connections and ended up getting to shoot the show for a NYC-based online magazine.

This wasn't your normal club show, however.  The Band Perry don't usually play clubs anymore, so this was billed as a "pop-up" tour.  Which in part meant they constructed an in-the-round stage in the center of the small room and brought in a higher production value than most bands who play such rooms.  The show was short (maybe an hour tops?) and there was no opening act, but it did not disappoint.  

The Band Perry at Irving Plaza, NYC

Moving from NYC to the Jersey shore now... I was fortunate to shoot one of my photographic muses, Jack Antonoff of Bleachers, once again at the Fox Theater in Oakland.  Jack puts 110% into his performances, every single time, so I almost can't fail to get an amazing shot of him.  He makes my job so easy!  I hope to never miss one of his performances when he comes through the Bay Area.

Jack Antonoff, looking all Springsteen-esque

Here's a show I actually didn't end up getting to shoot, but I have to mention anyway.  You may remember from last year's review that in 2016 I had the chance to finally shoot one of my all-time favorite bands, Mutemath, when they opened for Twenty One Pilots in Berkeley.  At the time I somewhat prophetically mused that "I'd narrowly missed shooting those guys a couple of times previously, and wondered if I'd ever get the chance."  Well, little did I know how close I came to missing that chance completely.  Only months after wrapping up the support slot on that tour, and shortly before the release of their incredible 5th LP Play Dead, the band announced that founding bassist Roy Mitchell-Cárdenas would no longer be touring with the band.  And then, just five months later, it was announced that legendary drummer/animal Darren King, the driving force of the rhythm section and creative yin to Paul Meany's yang, would be leaving the band completely for unspecified reasons.  (Darren's departure was announced on 808 Day, which I find depressingly coincidental.)  This just weeks before their fall tour was to begin and their new album released.  The news was devastating to fans, and felt like a death knell for a truly incredible band.  Having already replaced one original member a few years back, only one original member would now remain, at least when playing live.

But all was not lost.  Old friends of the band stepped into the vacant roles and rehearsed night and day, and the tour went on with convincing vigor.  And when they passed through San Francisco for a date at the Fillmore in October, it felt as though they never missed a beat.  Sure, it wasn't quite the same Mutemath I've enjoyed in the past.  But the new songs sounded amazing live, and the energy in the room was off the charts.  

And here's the most interesting part: new drummer David "Hutch" Hutchinson, who had been working as a an EMT for more than a decade before the life-changing call came to take Darren's seat at the drum kit, found himself called back into life-saving duty at The Fillmore.  Midway through the show a young fan at the front passed out, apparently exhausted and suffering from hypoglycemia.  The band stopped mid-song and Hutch jumped off the stage to administer first aid while Paul played a beautiful and calming rendition of "You Are Mine" solo.

Never seen anything like it before.

Mutemath at The Fillmore, SF

Mutemath wasn't the only fun show I went to in October.  October is often one of the busiest months of the year because it seems like all the big tours come through around the same time in mid-autumn.  I could find an amazing show to shoot every single day of the month if I was crazy enough.

But October turned out to be a month of surprises for me.  I started out the month with a bunch of great shows I expected to shoot, and ended up shooting none of them.  Some were cancelled, some didn't come through with approvals, and some I ended up having scheduling conflicts.  But the replacement shows ended up being even better.

First up, I had the chance to shoot at Levi's Stadium in Santa Clara, CA for the first time as Coldplay came back to town at the tail end of their US tour.  I hadn't seen Coldplay since 2002 when they played the Greek Theatre in Berkeley, and it's safe to say their live show has evolved a bit since those days.  It was pretty much a photographer's dream: pit access along the catwalk, confetti, pyrotechnics, and a very energetic Chris Martin making ample use of the catwalk, all in the first three songs.  Most bands won't give you all that right out of the gate, preferring to save some surprises for the end.  But Coldplay held nothing back, thankfully.  Those guys put on a heck of a show, and I'd highly recommend seeing them next time they tour.

Coldplay, descending to earth on a rainbow from a confetti cloud

And then, a couple of weeks later, I had the chance to shoot Arcade Fire for the first time when they headlined Oracle Arena in Oakland, CA.  This one wasn't a pit shoot; instead they positioned us back by the soundboard - but outside the crowd barrier.  Not sure why they didn't afford us the protection of being behind the barrier as is normally done; who wants to try and grapple with large amounts of expensive camera gear while people squeeze by in the dark with overflowing beer cups in both hands?!  But at least the show was in the round, which made the distance from the stage a bit less, and the show was pretty amazing, from what I saw of it before I was escorted out at the end of the third song.

I've always loved the ceiling of the Oracle, and I knew going in that I had to get a wide-angle shot that highlights the architecture of the place.  In some ways the ceiling reminds me a little bit of Madison Square Garden, but perhaps a bit less finished.  Being in the round and positioned off-center only makes for a stronger shot, I think!  I was thrilled with the results.

Arcade Fire, in the round

To finish the year off, I had the opportunity somewhat last-minute to photograph a rare performance by Thom Yorke of Radiohead at the Fox Theater.  Thom, along with longtime Radiohead producer Nigel Godrich and audiovisual artist Tarik Barri, only played two shows in California - one in LA and one here in Oakland - before heading off to headline the Day For Night festival in Houston, so I guess our show was a rehearsal of sorts.  I've yet to see Radiohead live but I've long admired their creative spirit, so it was a bit of a treat to catch their mad genius frontman in person like this.  Unfortunately Thom didn't want photographers getting too many good shots of him, apparently, because he had the photographers (all 8-10 of us by my estimate) shooting from the balcony aisles, and in near darkness for most of the time we were given.  Oh well, it was worth it, if only because it gave me an excuse to finally try out the Nikon 200-500 f/5.6 I've had my eye on for awhile!

Thom Yorke and Nigel Godrich

In conclusion, 2017 was another great year for me.  I shot some of my biggest shows to date, contributed to a few new publications, and continued to refine my approach to the craft.  I've been a little pickier about the shows I'll agree to shoot in an effort to maintain better balance with my day job, and I think it's been good for me.  I'm looking forward to a bunch of great shows I've already booked for 2018, and hopefully pushing myself to get a little better every day.

Lastly, I wouldn't be doing this if it weren't for the fans who continue to inspire, whether it's with kind words at a show, "likes" on an Instagram post, or just showing up to scream their heads off for their favorite bands.  Thank you, fans, for all of that.  A great fan base makes all the difference, not just for the bands on stage but also for people like me working unnoticed in the narrow gap between the stage and the audience, and I can't stress that enough.  Rock on.

See you in 2018.

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Want to see a few more photos? Check out the slideshow below!

Arcade Fire

Arcade Fire

Bishop Briggs

Bishop Briggs

Bleachers

Coldplay

Coldplay

Coldplay

Colony House

David Duchovny

Filthy Friends

Frank Turner and the Sleeping Souls

Jack Garratt

Julien Baker

LANY

Planetarium

The Band Perry

SWMRS

SWMRS

SWMRS

The Kills

Here's to the Roadies

Here's to the roadies, those nameless, black-clad wizards of musical tech lurking in the shadows who make all these shows happen night after night after night.  

I've come to realize over the years that I have a certain interest in taking photos of the stage before and sometimes after shows.  Inevitably, a roadie will make his or her way into one of my photos, and sometimes I think it makes the photo so much better.  

My goal for the coming year will be to intentionally capture more roadies at work in my photos.  They're the unsung heroes of the concert industry, putting incredible hours in every day for months and years on end to make their artists look and sound their absolute best.  We are deliberately not supposed to notice them (there's a reason they always wear black!) but without them everything would fall apart.  I'm going to try and draw more attention to them in my own little way, either here on this blog or on my other social media channels.

Here's to the roadies.

On the Legal Issues of Selling Concert Photography Prints

This isn't the blog post I was planning to publish next.

You see, a few weeks ago I was just about to publish a post announcing to the world that my fine art print store was online and ready to start taking orders.  I had a plan to raise money for charity by selling fine art prints, an effort meant to give greater meaning to the countless hours I'm spending at shows.  I had a few prints ready to sell from some of my favorite shows of the last year or two, including shots of Twenty One Pilots, The Kills, Counting Crows, Switchfoot and more.  I agonized over finding the right photo lab, the right color grading, the right paper.  I wrestled with how much to sell the prints for, knowing that I was going to donate all the profits to charity (and a great one too: Blood:Water Mission) but still wanting to keep the prints affordable for fans.  Finally I was ready; I was all set to press the button and finally launch my store.

And then, on my drive home from work that day I listened to an episode of the excellent Behind the Shot podcast by music photographer Steve Brazill, and suddenly I wasn't so sure about my plans.

This particular episode was an interview with attorney Ed Greenberg and commercial photographer Jack Reznicki, the guys behind a book and website called The Copyright Zone.  I won't bore you with details to convince you, but trust me when I say Ed and Jack have considerable experience litigating copyright issues related to photography with major, well-known clients, and they know their stuff.  They've also spent a lot of time sharing that wealth of knowledge with photographers in various forums over the years, such as Steve's podcast.  And after listening to their interview with Steve and subsequently buying their book, I quickly realized how little I actually knew about copyright, and more importantly, just how much bad information I was relying on from questionable sources on the web.

And so, this blog post.

Let me start by getting one thing clear: I'm not a lawyer.  I don't claim to be anything more than a regurgitator of legal advice given by real lawyers, and I highly recommend that if you want reliable advice, you seek out the counsel of a local, reputable litigator of intellectual property law.  (As Ed would say, local and litigator are the key words there.)  And of course, check out Ed and Jack's web site and book.  Use my feeble interpretations at your own risk - you're better off going straight to the source!  And of course, I live in the United States, so anything said here only applies to the U.S. copyright system.

Ok, now that we've got that out of the way, here's an overview of what I've gathered from Ed and Jack and how it pertains to my little print store, and what I think is important for concert photographers to understand before trying to sell prints online.

What Does Copyright Mean To Photographers?

Let's start with the basics.  If you're a freelance photographer and you take some photos, and you haven't signed anything that gives your copyright for the job to another party (such as with a Work For Hire agreement) and you're not employed by someone primarily to be a photographer, then you own your copyright.  It's yours, period.  And assuming you haven't signed anything that restricts your ability to exercise your copyright or assigns rights to other parties, then you alone control the image, you decide how it can be used and who can use it.  You alone can profit from it.  

So, let's say for the sake of a very simple example, you're a concert photographer and you've requested and been approved to shoot your favorite band's show as a freelancer.  You haven't signed any sort of agreements or releases with a publisher or the band.  You show up at the venue, you take photos for the first three songs, and you go home.  Pretty simple, right?  You own the copyright, the photos are yours, you can do whatever you want with them.  Right?

Ah, but not so fast.

Types of Use and Model Releases

So you've just taken the most amazing shots of your favorite band.  Your shots are the best you've ever taken, you know the band's fans will love them.  You have visions of licensing your images to Rolling Stone, or making t-shirts and prints out of them, and making bank.  Can you do it?  Yes and no.

The fact is, you own the copyright, but you've been taking pictures of people - that is, the band.  And when people are in your photo, things get a little more complicated.  (Same goes for some venues too, though we won't go into that.)  Chances are you haven't requested (and are unlikely to receive) a signed model release from the band members.  So right off the bat, you're limited in what you can do with your photos, because they include someone's likeness, and their right to profit from their own likeness is protected.  You can license your images for editorial use (e.g., publication in newspapers, magazines and other forms of media) because the images are newsworthy and protected by the First Amendment, but you won't be able to use them for commercial use like t-shirts, posters, mugs, etc.  Advertising is considered commercial use too, so you can't license your image to a guitar company who wants to run a magazine ad featuring your shot of the band's guitarist.  To use the shots for commercial use, you're going to have to get the subject of the photo to sign a model release.

Ok, fair enough, so you won't print up t-shirts and try selling them on eBay.  And it turns out nobody, much less Rolling Stone, has interest in your shots, so editorial licensing isn't happening.  You still want to make a few dollars off your shots, however, because you've just got to buy a fancy new Nikon D850 soon.  So what about selling prints directly to fans?

The Gray Area of Fine Art Prints

Here's where things get a little murky.  Most concert photographers understand that they can't print up t-shirts with their shots, but many believe it's perfectly fine to sell prints.  There's a prevailing sense that there's just something intrinsically different about prints, that printing a photo on paper is somehow more moral than printing the exact same image on a t-shirt.  I think it comes down to a feeling that while t-shirts are clearly a product, prints are a work of art.

But what makes a print "art"?  The internet is littered with armchair lawyers offering up advice on what you can and can't sell when it comes to prints, all driven by this question.  Some say there's no restrictions at all if you hold the copyright.  Others say you're fine as long as you produce "fine art", which to them means that you use high quality papers and archival quality pigment-based inks for giclée prints, or other high quality photographic processes.  Some say you have to sign and number your prints to qualify, while others say don't bother.  Most people confidently say you're in the clear only as long as you don't produce more than a magical number of 250 copies.  So what's the truth?

According to Ed and Jack in their book The Copyright Zone:

...the Copyright Law defines a "work of visual art" in part as: "A painting, drawing, print or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author..."

So there you go.  200 or less, signed and consecutively numbered, is what the law says qualifies for protection as "visual art", according to Ed and Jack.

So is that it?  As long as you produce less than 200 copies and you sign and number them consecutively, it's fine art and you're in the clear?  Not quite.

In The Copyright Zone, the authors use the example of Nussenzweig v. diCorcia to illustrate just how thorny "fine art" print sales can be.  In this case, photographer Philip-Lorca diCorcia captured images of random people on the streets of New York, and the images were displayed in a gallery and sold in limited quantities for upwards of $20,000 each.  One subject, Erno Nussenzweig, had not signed a model release and objected to the exhibition and profiting off of his image.  He sued, and lost.  Why?  According to the Ed and Jack, it's because the court ruled "the photograph of Rabbi Nussenzweig was considered a work of fine art by a recognized artist, printed in a very limited edition, and exhibited in a widely recognized art gallery." (Emphasis mine.)  In her decision that diCorcia's work should be treated as a work of art and not commerce, New York State Supreme Court Justice Judith J. Gische specifically wrote that "Defendant diCorcia has demonstrated his general reputation as a photographic artist in the international artistic community."

The words "recognized" and "reputation" are the key words here.  In a nutshell, who you are known to be matters as much as what you're selling.  diCorcia's work was rightfully considered art and therefore protected speech because of his reputation and the way his prints were exhibited and sold.  

Conversely, it would therefore seem that normal, average photographers can't sell prints of people who haven't signed a release, call it "fine art", and expect to be shielded by the law if the subject complains, at least in New York.  Fine art photography isn't just defined by the quality or quantity of the work you produce.  In a court of law, if you don't have a model release you may have to demonstrate your credentials as a fine art photographer in order to be protected.

This is a big point that I suspect most concert photographers would be surprised by.  If you are sued by a band that objects to you selling prints of them and you don't have a release, your credentials as a fine art photographer could be scrutinized.  You could easily lose your case if you can't convince the court that you deserve artistic protection by demonstrating that you've displayed your work regularly in art galleries, books, exhibitions, etc.  And losing your case could get mighty expensive.

For most concert photographers, I expect this is a pretty tough hurdle to get over, as most photogs in the pit are probably shooting part-time, aren't widely known in the art world, and aren't displaying their work in galleries on a regular basis if at all.  

For me, this point put my print store launch on hold while I considered my next move.

But Really, What Are The Chances You'll Be Sued?

Yeah, we don't know either...

This is a tough question to answer.  I'm not sure anyone can answer it, really.  Ed and Jack acknowledge that willful copyright infringement, including the use of images without model releases, happens all the time, by big corporations and small mom-and-pop businesses alike.  It's often seen as a calculated risk that infringers are willing to take, knowing that the probability of being sued is extremely small, and rarely do such cases go to trial.

So sure, you could go ahead and sell a ton of prints and never be sued by a band.  It's possible a band would even encourage your efforts if they notice you and really like the print - after all, most artists are pretty cool with photographers, from my experience.  But, there's always the chance you could find yourself crossing a particularly prickly artist and their representatives, who take the artist's "brand" very seriously, and you could end up the recipient of a not-so-nice letter from their lawyer.  And the value of that artist's likeness (and thus potential judgements against you) could be substantially more than you'd expect, especially if their career really takes off.

Ultimately it's a roll of the dice, and it comes down to knowing the artist you're shooting, I suppose.  And it's up to you if you're willing to take the chance of selling prints without a release.  To me, it's not worth blindly diving into.

So What Can You Do?

Quite simply, I think a good approach is to always ask permission.  If you want to cover yourself, simply reach out to the artist's representatives and ask nicely.  Explain who you are, show them the image, and tell them your intentions clearly.  Offer to send them a few prints.  You could ask for a signed model release (and probably be ignored), or at the very least seek assurance in writing that they're ok with you selling your prints.  You never know, you may find the artist wants to partner with you and license your image or sell your print through their own channels, which wouldn't be the worst thing in the world.

This is one of those cases where it's better to ask permission than forgiveness, I think, even though you may find yourself getting the cold shoulder quite often.  Still better to be safe than sorry.

In Conclusion

Selling prints can be a great way to create an additional revenue stream for concert photographers, but it comes with a pretty big caveat.  Decide for yourself what tolerance you have for the risks, but do your homework first.  Ignoring the risks can end very badly if you're not careful.

As for me, I'm not giving up on the idea of selling prints for charity, but I'm going to go about it much more carefully.  Stay tuned for more on this.

Oh, and lastly, did I mention that I'm not a lawyer?  Again, go check out The Copyright Zone web site and book, and decide for yourself.  Better yet, talk to a good, local copyright attorney who understands the unique laws in your jurisdiction.  What applies in one state like New York might not apply in another state like California, so if in doubt, talk to an attorney who is local to you.

Have you come to a different conclusion about all of this based on your experience?  Are you a practicing IP attorney with insights to share?  Share them in the comments below!