FEATURE: Terms and Conditions Apply: Is Consent and Copyright Laws Holding Back Creativity?



Terms and Conditions Apply


 ALL PHOTOS (unless credited otherwise): Unsplash

Is Consent and Copyright Laws Holding Back Creativity?


HOW many of us sign up to a website…


or register with a company and blithely skip past the terms and conditions?! There is that box we need to tick to say we have read them: few of us open up a page and read everything that we are agreeing to. Most of it is harmless, boilerplate stuff - we are not agreeing to give away our lives and consent to inhuman experimentation. It is a perfect opportunity to exploit someone but I guess most of us are too busy and unconcerned by what is written in the contract. As I say; a lot of the websites have the same terms and most of it revolves around minor things that are not going to harm anyone. I wonder whether, among the codification and numeration are pillars, posts and points that are, in a subtle way, stripping liberties and revoking any degrees of privacy. How much of the information we share online is being used by companies (we sign up with) and are we exposing ourselves to a lot of hassle down the line? Unless we read every page of every site; we are never truly aware of the small print. One of the most challenging and irritating parts of being a music journalist is how often you have to carefully select information and photos you can use – through fear of copyright infringement and intellectual theft.


A piece I wrote last week – looking at the best music photos of all time – has to be scrapped and deleted because I got a fair few of the photos from a music website. I credited the photographer of each but, in one of their sub-menus was a terms and conditions option that prohibited the unauthorised sharing of their material. That was fair enough but I felt that link should have been visible and listed with the photos. I did not know to go check and assumed that, if I credit those whose work I am using, there would be no issue. Maybe that was naivety on my part but it seems like there are needless restrictions imparted. If you are using someone’s photos/information to make a valid point or do good then what is the use in imposing these limitations? Anyone could copy a photo and use it where they want – the downfall in my plan (was that) I tagged the website in questions when I shared the feature online. If I did not then they would not have known where to check; they would have been blind to the (unintentional) use. All I wanted to do was celebrate someone’s good work and was not misrepresenting the information and using it to voice controversial opinions and perpetrate libel. I can understand the need to protect privacy and restrict use: some journalists may use information/photos to help voice racist views or vile onions. In those cases; you do not want that person to have free license regarding your work. In this occasion, I did ask the website if I could use the photos but they declined – no real rationale or explanation.


If you are going to be urge people to ask for written permission before using images, and refuse them without explanation, then is anyone ever going to do that?! I have to read everyone website to make sure they are not going to sue me and force me to remove their work. A lot of the websites have privacy/copyright-related pages but it is not always clear whether you can use their data without permission or their words apply to bigger publications/sources. Sometimes; there is a blurred line between intellectual theft and appropriate representation. I would rather than a risk and use information/photos without consent – so long as I have read their conditions and feel I have committed no wrong – than have to email/write to everyone and wait to get permission. That might seem like an unwise move but, so long as one makes checks and makes an ‘honest mistake’ then you cannot fault that. I will come to look at the creative ramifications but there are similar obstacles when musicians want to use other people’s songs/sounds to sample. An artist can easily cover a musician’s song – they do not need to get permission but it is polite to ask – so can, in theory, mimic every note and vocal and use that version in a song. That would be a sound-alike sample but is not the original – it is all legal; albeit a time-consuming solution. What is the difference between a cover version where you can replicate a song note-for-note and getting the original? Artists are protective of their work and do not want to secede rights to have their material disseminated and used any way another artist sees fit.


PHOTO CREDIT: Getty Images

Rigidity and litigious barriers mean there are far fewer sample-laden albums like we saw in the 1980s – the likes of Paul’s Boutique and 3 Feet High and Rising (De La Soul). Those artists had a hard time putting the records together but I know it would be THAT much harder getting permission today – musicians are concerned about piracy, legalities and financial reward. If an artist used a song and that album garnered big cash for the musician – how much money is going to the artist who granted access?! Some argue these measures protect musicians and means songs do not lose their ethics and independence. I feel there are better ways to go about things. If an artist agreed to a percentage cut – granting a set amount of profit to the permission-giver – then what is the harm granting permission? That would solve issues around remuneration and, so long as they fully informed the musician how they were using their song(s); they would rest safe knowing it was not going to be mangled and mutated. Things are not that simple and it is a problem that feeds into journalism. I was annoyed to lose a piece that looked great on the page but it was not a fantastic loss. I could have survived a refusal if they explained their decision and felt I was going to misuse their photos. That is not the case (on either point) so that makes me feel everyone is going to provide short-shrift.


As I said before…there is ambiguity on a lot of sites so is the workaround making sure you phone/email everyone? The problem with that approach is waiting however long to get an answer. If they say ‘no’ then you have wasted your time: how long will it take to get an answer and any sort of legitimate reaction? Even if they do grant permission; how can you tell, from a causal observation viewpoint, whether that has happened? Are you going to put the email (with permission) on the page? The original source knows you have asked but nobody else does. A lot of great journalism stems from instant reaction and efficiency. If there is a hot issue that needs dissecting then you will want to get something online quickly. That might involve, as I do, research and cross-referencing other sources. I never replicate and rip-off an article or amend any journalist’s words. I always keep it faithful and contextualise my usage. It is never inappropriate and always used (the material) in a positive and substantive way. I can understand the need to preserve sensitive information of personal photographs. Ensuring they are not put into the ether is fine but most journalists are not looking to defraud and play games. I would be completely happy for someone to use my words and do not have any limitations on my website. That might leave me open to exploitation and legal issues but others can quote my reviews and features.


Artists ask if they can quote some of my reviews (about them) for promotional reasons. It is not a demand from me: they do it as a courtesy. I do not put anything official down and know anyone who comes my way is going to purely and faithfully use my words. I look at the tabloid world and see photos of celebrities plastered over their front pages. I am sure the featured figure did not give their consent to be pictured and have no say how their image is used – they do not get a say regarding the story attached to it, either. They are immune from privacy rights and are open to scandal, harassment and gaudy revelations. I know the music press is more respectable and noble but why does one side of the press get to break rules and violate confidentiality when another, much nicer and educated, have to struggle to acquire the same level of access?! In my case, I am never using too much of anyone else’s information. I would be honoured if I saw my words quoted (in the right context) by someone else. Obviously; you cannot monitor everything and know what happens with your work – some of my stuff might be out there in another place! – but I  am not one for squashing creative freedom and promoting debate. If every magazine and website made writers ask for permission and risk facing rejection every time they ask – how will journalism ever grow and evolve if we are too stringent and strict?!


I am happy enough to send an instant message/email to every site with my website and say why I want to use their words/images. Because I am a minnow; there is the endless reality they will refuse me because I am so small. The logic is, from my viewpoint, I am not likely to create duplicity and abuse their trust. I am a humble journalist who wants to aid my work and create some interesting pieces. It is music journalism so there is not really anything deeply personal and explicit I am using. Most of the words are opinions and quotes; studies and interviews – something anyone can read and use on social media. People can legally share that information on social media (if they know how) so why stop journalists from using the information in a factual and informative way? The issue is complex but I can see no real reason why sites are so protective and legal-minded. I have seen other websites use photos – that they do not have expressed permission to use – but do not report them. That would breach their own rights and is not my place. Getting permission seems like (that site) have access to monitor and control what I do. You can say the blind taking of information/photos means the author/creator has no control and is open to a world of problems.


If you want to ask every person to get permission for every bit of information you use; I feel there is a quicker way of doing things. Click on a photo/article and give them an option to put your website in a form; their name and email address. That will go to a moderator who will instantly review the request and give s response. It covers the bases and means journalists get a quick reply – and can engage in conversation if the website is reluctant. The way things are now mean many are fearful of rejection – meaning their creativity is limited and they are unable to progress music journalism. Debate, engagement and discussion is crucial in the modern age and part of that is sourcing other portals of information and sampling other people’s work. There is a bias and sense of subjectivity if I only use my own words: bringing in another side/journalist means I can back up my argument or bring in a counter-balance. I know the rules around intellectual theft are defined when it comes to music-sharing and sampling. There have been high-profile court cases regarding plagiarism (Led Zeppelin one of the more recent examples) and that was a costly and truncated court case. That example might have been an opportunistic lawsuit or mistaken assumption – does a journalist have to suffer the same fate if they use someone else’s material. There are definitional differences and practical exceptions but, when it comes to it, there are hoops journalists need to go through in order to use other people’s information/photos.


I understand the desire to protect your work and not have it misused but it should be a lot easier for journalists to get permission – and have a fair shake and not be instantly rejected. There are so many issues and subjects that are ripe for investigation and challenge. The music industry is facing change, accusations and struggles in various quarters. Documenting these (sides) and exploring avenues is a vital way of provoking conversation and, ultimately, change. I see so many websites produce pithy and vague articles because they have no competing arguments and sources they can quote from. There is this culture of over-protectiveness that is stifling examining, debate and quality journalism. With no sense of morals and legality in the tabloids and other parts of the industry: why should music journalists have to face challenge and boundaries? It is an argument where I can understand the other point but I am frustrated it is so difficult when it comes to quoting from others – and the amount of time one waits to get rejected for asking nicely! Next year will see music take on a bigger role and shifts occur; issues around sexism come to the fore and the desire for reasoned and productive debate. Journalists are charged with leading the movement and talking about things important and meaningful. I wonder if we can do that if there is compartmentalisation and endless terms and conditions imposed. Making allowances will not only lead to better journalism and a more open industry; easier channels of dialogue and permission-giving means more aspiring journalists will be bold and brave with their work. Music journalism is never going to advance and grow if there are needless restrictions. In the interest of parity and transparency…


YOU can quote me on that!