Source: mystock.photos

Earlier this year, Guns N’ Roses singer Axl Rose issued a DMCA takedown notice over the notorious “Fat Axl” image, an unfortunate photo of the singer at a 2010 concert in Winnipeg, Canada that’s since been meme-ified. Rose claims the photographer in question had no permission to publish the copyrighted image because he signed a contract barring such publication. And this summer, Apple was granted a patent for technology that can prohibit your iPhone from taking pictures or video at, among other places, a concert.

These high profile stories shed light on some of the rights at play when you attend a concert. Would you or I be barred from posting a picture of Axl Rose assuming we didn’t sign a contract? Do we have rights to take pictures and video that Apple is taking a proverbial bite out of? The purpose of this article is to highlight a few legal implications facing the average concertgoer when he or she snaps a pic or vid.

Copyright
 If you take a selfie, you have a copyright in that picture, and that copyright exists as soon as the picture is taken (Note: Registering a copyright gives you certain other rights, but does not establish copyright). There are certain added artistic elements of a photograph, such as the lighting, placement of the subjects and angle that gets protected. So while you can snap a picture of Beyonce and you own a copyright in that photo, using someone else’s identical photo of Beyonce infringes the author’s copyright.

Contracts: The Photographer and The Ticket
If the photog signed a contract barring him from publishing photos of an artist, such as Axl Rose, the photog is bound by that prohibition. Generally, the liberties and protections of copyright law can be superseded by the language of a contract.

In addition, when you purchase the ticket, you are bound by the fine print just like you would a signed contract. Often, tickets prohibit ticket holders from taking and publishing (i.e. posting) pictures of the venue, the bands, etc. The fact that you don’t get a cease-and-desist letter every time you post a concert photo of Drake on Instagram or a video on Snapchat doesn’t make it legal; it just means that venues don’t have the resources to send letters, don’t want to develop a negative reputation for strong policing or some other reason. It gets trickier once the publishing is for commercial gain…

Right of Publicity: Commercial Use
A major sword for celebrities to use against photographers is the right of publicity. This protects the unauthorized use of someone’s name, image or likeness (some states stretch to voice, signature and other identifiers) for the purpose of commercial gain. So while you can post a picture you took of Kanye West to your personal Facebook page with the caption “Kanye loves me”, you cannot use the photo in an ad for your business with the caption “Kanye loves us”. Whether there is actual commercial gain is an issue up for interpretation.

Right of Privacy: Public or Private Place?
When someone snaps a picture of you, they may or may not have freedom to publish that photo. Whether or not individual protections kick in depends on where you are when the photo is snapped.

If your image is shot in a public place, like a city street, generally you have no right to privacy, as you chose to put yourself in that public place. Concert venues are by definition private establishments because anyone can’t just walk, i.e. you need a ticket for entry. Thus, if a photo is taken of you at a concert, you have greater protections than you do walking a public city sidewalk.

But note that the ticket fine print again plays a role here. Many vendors include a provision in the fine print allowing the venue and/or affiliated third parties to use your image if a photo is snapped at the show.

In sum, the moment you walk into a concert hall, the law giveth and the law taketh away certain rights. Of those rights giveth, some are superseded by contract, whether you’re a professional, contracted photographer, or a ticketed-concertgoer catching 30 seconds of video on your iPhone. Just because a venue or musician doesn’t take action does not mean what you did was legal; it often comes down to feasibility and/or public relations. So go ahead and post that picture you snapped of Kanye at the Form, just be careful if you’re in any way generating money from your use of Ye’s image. And do it soon, before Apple cuts you off.

If you have questions about a concert experience, use of your image, or you are a musician concerned about your performance rights, please reach out to altView Law Group, LLP for a free consultation at (424) 272-6319 or max@altviewlawgroup.com.