By Anthony Gorin of Beauty in Normalcy
My name is Anthony Gorin, I’m an amateur photographer, videographer and poet living in Brighton. I started out using creativity as a form of expression and therapeutic release for my own mental health. I do hope to make some money on the side from my creative works but I create for my own health and continued well-being. I came to Brighton for my university studies back in 2014 and absolutely fell in love with the city and everything about it. Hell, I know it isn’t perfect, but in so many ways it’s a breath of fresh air. No wonder most people who visit Brighton and especially students who study here never want to leave. Much like in my case.
I have for so very long wanted my own creative work shared by @VisitBrighton on Instagram or other social media; to show my love for the city, promote my own creative work and social media, and perhaps somewhere down the line get some freelance or odd commissions with VisitBrighton or others. When I saw them comment on one of my photos I was ecstatic, happy, relieved and recognised, but I knew in my excitement I had to check to make sure it wasn’t a fake account (I had only seen the words ‘VisitBrighton’ we would like to share your work or along those lines in my notifications.) When I read the comment and read further into their terms and conditions I was absolutely horrified and outraged by the unethical practice. I shall use quotes copied from their “Photo Terms & Conditions” and quote when possible and will be attaching images of the site pages in question at the end (in case they change it) and links to those webpages also. I would briefly like to state I’m no legal expert by far, I learnt what little I could so I knew about licensing for photography exclusive rights, ownership, perpetual or temporary use for licensing agreements etc.
I shall in this blogpost point out the unethical aspects of VisitBrighton’s photo/video terms and conditions, what it means for any non-artists who may not be aware of the jargon, what it means for creative artists and the industry as a whole that VisitBrighton claims to value, yet not enough to actually pay creatives for extensive use of their work (might I add, have bills to pay, need to eat, costs of creating etc.) and not merely a repost on social media. I shall also propose an alternative Ts&Cs that is fair for artists, allows VisitBrighton to make use of and share artists' work and provide a platform for negotiation and collaboration between those at VisitBrighton and those artists who they supposedly cherish for making Brighton what it is in addition to explaining why these amendments are positive changes for all involved on a mutual and cooperative basis.
“The purpose of this request is to use photograph(s) and/or video(s) to promote visitation to Brighton & Hove and Sussex. By accepting these terms and conditions, you are hereby affirming that you are the copyright holder of the photograph(s) and that your release of the photograph(s) is voluntary, and that you acknowledge you will receive no financial compensation from VisitBrighton, its contractors or its employees for use of the photograph(s) to promote Brighton and its attractions.”
I have entirely no problem at all with this section, I produced a photo, took time, effort, skills, and paid for equipment, experiences and a whole lot more to create and if they want to share it via social media (while crediting me) with no payment towards me, I have no problem with that. Instagram has a ‘collaborator’ feature which I love so I’d preferred if they tagged me as a collaborator when they share my photo but any linked credit with my social media handle is all good for me. I’d volunteer for this freely and happily forgo financial compensation as I guess they can’t pay for every single re-share plus they are crediting the photographer (again I wish they’d use the collaborator feature, but I’m splitting hairs). There is a whole lot worse which is why I’m writing this today.
This would interest some photographers/videographers/other creatives (subsequently I’ll use photographers as I primarily see myself as such but when talking of photographers I refer to all creatives who VisitBrighton may wish to use their work creative art form aside.
“You further agree that inclusion of your photograph(s) or video(s) in any, but not limited to, publications, websites, videos, advertisements, or social media produced by VisitBrighton and its partners confers upon you no rights of ownership whatsoever. You release VisitBrighton, its contractors and its employees from liability for any claims by you or any third party in connection with your participation. VisitBrighton will not sell released photos to third parties.”
My own translation:
You agree your photograph(s) or video(s) may be used in any of; but not limited to; publications, websites, videos, advertisements, or social media produced by VisitBrighton and its partners and you own no rights to these produced works of VisitBrighton or its partners.
“By accepting these terms and conditions, you are assigning VisitBrighton the right to royalty-free, non-exclusive, perpetual use of photos in any future, including but not limited to, publication, advertisement or promotion, whether in print, video, or digital format as VisitBrighton sees fit. VisitBrighton request a high-resolution, or original, version of the requested photograph. In providing the photograph(s), you agree to these same terms and conditions.”
My own translation:
By accepting these terms and conditions you are giving VisitBrighton the right to make use of (without any compensation), rights to use it but without exclusivity to VisitBrighton* and unending use without expiration of photos in any future publication, advertisement or promotion, whether in print, video, or digital format and any other form as VisitBrighton sees fit.
*(so VisitBrighton could use the work, the artist could but if a client of the artist’s wanted it exclusively it’s void as the artist has someone else [VisitBrighton] using it non-exclusively. Though it doesn’t stop the artist from giving others non-exclusive rights or using it elsewhere non-exclusively themselves, VisitBrighton may still profit from it, and the artist may also, but they lack control over all the aspects of it.)
So by VisitBrighton making use of, let’s say, my photo, they can use it in any media format VisitBrighton or their partners see fit. I shall never see any compensation (please note how artist acknowledgement is also missing here. They seem to credit via their Instagram posts, but do/would they for their publications or let’s say (in the very unlikely scenario) if they used my photo in a billboard, banner, flyer, poster or even tv commercial or book of Brighton— It’s not mentioned so they don’t ‘have’ to.
I would like to add. I do not expect financial compensation for a share or repost on social media. I most certainly would not mind payment but I can understand they may not have the funds to pay for every photo they repost and after all, they do give credit. What I do think is very unethical is the fact they claim rights to use the artists’ work in all different formats of work; social media is one thing, but leaflets, booklets, posters, tv commercials, books, videos, what about a banner on the front page of their website? Should all this be treated the same as a repost for a photo with credit? I think not. Some financial compensation should be negotiated, reasoned for, if an artist thinks the price is too low, then the right for use in those use-cases should be revoked (though not for the one-time post on social media). If they use my photo in a booklet they distribute around all of Brighton of course I don’t hold right over the booklet, but surely my contribution is mine without further negotiation after allowing a repost before they can make use of it. These terms and conditions are giving VisitBrighton the right to collect and make use of all of these artists’ creative work in perpetuity without any necessary recognition or compensation no matter the scope from which their work is used or profited from.
As VisitBrighton acknowledges on their very front page:
“An inclusive, free-thinking city in the heart of Sussex. With a blend of modern culture and exotic architecture, sea and countryside, make Brighton your base and discover new places and experiences both inside the city and out.”… “With art, live music and entertainment on tap, plus an ever-growing abundance of independent shops, boutique hotels and award-winning restaurants, what more could a city have to offer? Quite a lot, it turns out! Apart from having eight miles of beach on its doorstep and being bang in the middle of a UNESCO World Biosphere Region, it also borders the magnificent South Downs National Park, which is itself an International Dark Sky Reserve. And given that it’s a one-hour train journey from London and a half-hour train journey from London Gatwick Airport, it couldn’t be easier to get here.”
VisitBrighton talks of the amazing work, events and culture added to Brighton from its host of creatives of all shapes, sizes, colours, creeds, religions and experiences, yet it's not willing to pay for the work of creatives in promoting the city? The very ones who create the “art, live music and entertainment on tap, plus an ever-growing abundance of independent shops, boutique hotels and award-winning restaurants”.
What more could a city offer? Perhaps a decent living for the artists’ work that is being used in a way that promotes and benefits the city as a whole. In addition to VisitBrighton itself.
Imagine a friend using a song you’ve made in a video of theirs, yet forever being able to then use it in tv shows, movies, from indie movies to blockbuster movies, what about using it as a backing track for exhibitions you put on, or having it (somehow) play whenever someone opens a book or pamphlet. Is this in any way reasonable because they had asked to use your music in a vlog video as a random home project?
Imagine making a sculpture and being asked to use it for an evening or even a week to admire it, but they then posted about it, wrote books about it, made films about it and claimed all of the money before returning it yet giving nothing to the artist who said they could use it for that day or week and profiting massively from it.
This is far from the only example of ‘photo/video’ farms, competition with eerily similar Ts&Cs as VisitBrighton, asking for permission and then claiming the ability to use for an unlimited number of uses, to profit off of artists with no compensation to those whose art they’ve quite frankly stolen under the guise of ‘giving credit’. I cannot walk into a grocery store and walk out by giving a good word to my friends about the retail chain, nor my local pub, nor a theatre or museum. Why is it this is what is expected of artists?
Artists contribute so much to the British economy by providing a peak of 1,051,000 (Q4 of 2019 - pre pandemic) for more recent figures then providing 1,017,000 jobs in Q3 of 2022 (ONS 17 January 2023 - UK Workforce Jobs SA : R Arts, entertainment & recreation [thousands]). This itself is likely an underestimate due to the methodology used as it probably doesn’t account for my creative practice and of smaller, part-time or freelance creatives.
Self-employment rate among the creative sector is 32% compared with the national 16% in the rest of the economy, self-employment much like me working a full-time job and doing this on the side. Over 1 in 8 businesses back in 2019 were part of the creative industries (Policy and Evidence Centre 28 June 2022 - National Statistics on the Creative Industry)
Employment figures not good enough? Contribution of the arts and entertainment industry £111 billion to the UK economy in 2018, which amounts to £306 million per day (gov.uk 6 February 2020 - UK’s Creative Industries contributes almost £13 million to the UK economy every hour) or in 2019 the creative industries contributed £115.9 billion to the UK economy (Prospects April 2022 - Overview of the UK’s creative arts sector). VisitBrighton has been a significant force for improving tourism in Brighton and Hove as admitted by the Brighton and Hove City Council calling “The Tourism Recovery and VisitBrighton report shows that although the sector was hit hard by the Covid pandemic, VisitBrighton has been working hard to speed the city’s recovery.” (brightonandhovegov.uk 3 October 2022 - VisitBrighton plays key role in recovery of tourism and wider economy)After the pandemic the city visitor numbers are down 27%, the local economic benefit from tourism is 61%, VisitBrighton may be having a significant impact improving the situation but artists are in great difficulty by these situations also (brightonandhovegov.uk 3 October 2022 - VisitBrighton plays key role in recovery of tourism and wider economy). Having their work stolen isn’t good enough.
So. VisitBrighton. Not that I am a legal expert or even a novice, I would put across my own opinion saying that, your Ts&Cs could be made more artist-friendly, fairer, and less unethical while also not burdening yourselves with paying for simply reposting Instagram photos of budding photographers by having it read something like this.
The purpose of this request is to use photograph(s) and/or video(s) to promote visitation to Brighton & Hove and Sussex. By accepting these terms and conditions, you are hereby affirming that you are the copyright holder of the photograph(s) and that your release of the photograph(s) is voluntary, and that you acknowledge you will receive no financial compensation from VisitBrighton, its contractors or its employees for use of the photograph(s) to promote Brighton and its attractions in this permitted use case [insert use case here i.e. use of photo/video to be reposted on VisitBrighton’s social media accounts including Instagram & Facebook with credit as recognition for the copyright holder’s creative work.
You and VisitBrighton further agree that inclusion of your photograph(s) or video(s) will be limited to, a singular post and accompanying ‘story’ within [insert timeframe I.e. within the month of April 2022] on different social media websites including Facebook, Instagram and LinkedIn. You release VisitBrighton, its contractors and its employees from liability for any claims by you or any third party in connection with your participation in the terms agreed here. VisitBrighton will not sell released photos to third parties. Nor use it for anything not explicitly mentioned in these terms and conditions without first getting written and fully-informed permission from the copyright holder, including but not limited to use in other publications digital or otherwise or further use in the same way as agreed here after the previously agreed use-case as set out here.
By accepting these terms and conditions, you are assigning VisitBrighton the right to royalty-free, non-exclusive, temporary, one-time use of photo(s) or video(s) in a post and ‘story’ via the aforementioned social media channels as VisitBrighton sees fit only within the confines of these terms and conditions explicitly stated. VisitBrighton request a high-resolution, or original, version of the requested photograph. In providing the photograph(s), you agree to these same terms and conditions.
Lastly, I shall explain why I have proposed the changes I have. VisitBrighton can and should be able to use and repost artists' work, with permission granted but limited in scope for example to reposting on social media (I’ve also included a story). I’ve limited use of the media so an artist keeps control of their artwork, is aware of when it is being used and where it cannot be and has control of their work unless explicitly giving permission for other use-cases. If VisitBrighton does want to make use of the work in a publication then a further request can be made to the artist, perhaps it’ll be granted on a voluntary royalty-free basis (amazing for VisitBrighton), perhaps not (a right the copyright holder and artist/creator whose work it is, surely is held by themselves). This opens avenues for work; both paid and unpaid, further collaboration, working together on commissions, creating artist bios, creating exclusively VisitBrighton-owned creative works made in collaboration with a local artist, opens avenues for artists and Brighton stakeholders working together collaboratively, on a voluntary basis, paid or merely covering material costs basis while also each party keeping hold of their own contribution if negotiations don’t pan out. There is always another artist. The question is if an artist’s work is so good that VisitBrighton really wants it, then surely you have to organise negotiations and agree for its use and not merely steal it. It’s predatory.
Image taken 10:40pm 19/1/23 of the VisitBrighton Photo Terms and Conditions
Image taken 10:40pm 19/1/23 of the VisitBrighton frontpage
Image taken 10:00pm 19/1/23 of the First comment I received 18/1/23 - no idea why dated to 1st January. Perhaps my phone reminded me on the 18th and sent me a notification.
Image taken 10:00pm 19/1/23 of the message I received 19/1/23 - showing them ask me for the use of my photo for 'marketing efforts'.