Funny but Binding Contract Terms for Late Payments

Pizza” by stu_spivack (Creative Commons License)

One of the biggest challenges facing small businesses seems to be getting clients to pay their bills. Dealing with non-paying clients or delinquent clients is one the most common complaints I hear about from other entrepreneurs. Your first line of defense against these people is in your contract.

Create an Upside When Clients Don’t Pay – in Your Contract

You can put anything you want in a contract, as long as it’s legal. (This is why you can’t have a legally binding contract to buy/sell heroin or a human kidney.) Most contracts include a provision about a late fee, so if your client is late in paying you, you can make them pay more, up to the maximum interest rate allowed by law.

If you are a professional creative, such as a website developer, graphic designer, or photographer, you can put in your contract that you won’t give the client the final deliverables until they’ve paid the balance on their account. This is an effective way to hold your clients’ financial feet to the fire.  

Don’t Publicly Shame Your Clients

No matter what you put in your contracts, don’t shame your clients for being late in paying their bill. Don’t put in a provision that says if they’re late, you can put up a sign or billboard, or hire a skywriter to tell the world that the client didn’t pay their bill. That doesn’t help anything. That could easily backfire because it makes you look like a jerk.

I had some ideas that aren’t publicly shaming, but still could make you look worse than your non-paying client if it became public information, like including a provision that says, if you’re more than 90 days late, every time we send you a reminder, the subject line will be, “Hey Asshole! Pay your bill!” As validating as that might be in the moment, it probably wouldn’t be an effective strategy for getting referrals, or even getting them to pay.

Free Ideas for Revising Your Contracts

Recently, I wondered what else a company could put in their contract that would encourage clients to pay their bill and have an upside for the company. For the purpose of these suggestions, “you” and “your” refer to the client and “we,” “us,” and “our” refer to the company.

  • If you’re more than 30 days late paying your invoice, you agree that you will pay for an office pizza party for us every Friday, and we will add the amount to your unpaid invoice as well as send you a photo of us eating pizza.
  • If you’re more than 6 months late paying your bill, we will send a hug-a-gram to your office reminding you to pay us. (It’s like a singing telegram, but instead of singing, they hug you.) We will add the amount of their fee to your unpaid invoice along with a substantial tip.
  • For a web designer: If you are 30 days late paying your final invoice, not only will we not launch your new website, you consent that we can commandeer your current site to promote the charity of our choice.

Final Thoughts

Having non-traditional contract terms is not a new idea. Lots of people have had seemingly crazy provisions in their contracts. I want to do more blog posts this year with sample verbiage for contracts that I would love to write, that would be legally binding, and not your traditional legalese.  

I want to humanize contracts. I love writing contracts in everyday language. Your contract should be written in a way that you and your clients can easily understand it. If you want to hear more about what I’m doing in my business and practical legal tips to run yours more effective, please add yourself newsletter.

It’s the Law: Put Down Your Phone and Drive

“Hang Up and Drive” by ToastyKen (Creative Commons License)

Starting January 1, 2021, you can be ticketed in Arizona if you talk or text on a cell phone while driving unless the device is in a hands-free mode. The same law also applies to tablets as well as music and gaming devices It’s the 48th state to ban texting while driving. (Missouri and Montana are the only states left that don’t have laws that restrict texting while driving.)

This law actually passed in April 2019, but drivers didn’t start getting tickets until the beginning of 2021. In the meantime, law enforcement gave over 15,000 warnings to people who were caught on their phones while driving.

What Does This Law Actually Require?

Essentially, you can’t touch your cell phone or other stand-alone electronic device while you’re driving. It has to be in hands-free mode. It can’t be in your hand, cradled between your ear and your shoulder, or supported by any other part of your body.

This means you can’t write or read texts, scroll through social media, watch or record videos, or do anything else with your device that causes a distraction and requires the use of your body.

So, I Can’t Touch My Device At All?

There are a few exceptions. You’re allowed to touch your device to:

  • Start or end a call,
  • Use a device, like on your GPS, to navigate the vehicle, and
  • Respond to an emergency situation, like calling 911.

It’s ok to talk on your phone while wearing an earpiece or headphones or communicate through a smart watch.

What If I’m at a Stoplight?

I called the Phoenix Police Department and the officer said you’re allowed to touch your phone while you’re sitting at a red light. If you’re that person who isn’t paying attention and doesn’t go when the light turns green, you can be ticketed for impeding traffic.

What About a Stop Sign?

According to the police officer, you’re not allowed to pick up your phone while at a stop sign. Their exact words were, “We don’t want you marinating at a stop sign.”

Can I Shoot Video While Driving If I Hit “Record” Before I Start Driving?

Technically, yes, but if you’re shooting a vlog while behind the wheel, I suspect you’re not paying as much attention to the road as you should be. You can still be ticketed for operating your car unsafely.

How Can a Cop Prove I was on my Phone?

It might be their word against yours.  Under this law, a police officer cannot confiscate or inspect your device.

How Bad is the Fine If I Get Caught?

For your first violation, it’s a $75 – $149 fine. If you get caught using your device while driving again, it’s a  $150 – $250 fine.

Is It Really That Dangerous to Text and Drive?

According to a study from the National Highway Transportation Safety Administration, texting and driving is six times more dangerous than driving while intoxicated.

It’s scary to be driving and see other drivers talking on their phones, or worse, looking down at their lap where they’re texting with both hands. One time I was in the passenger seat of my friend’s car and while they were talking on their phone with one hand, they started writing on a notepad with the other! I told him he wasn’t allowed to do that while I was in his car. (If he needed something jotted down, I was happy to do it for him.)

If you want more information about this new law, visit the Arizona Department of Public Safety, and please put down your phone and keep your hands on the wheel and your eyes on the road.  

What Zach Kornfeld is Doing Right with his New Business

“Thumbs Up!” by Kevin Gale from Flickr (Creative Commons License)

This week, Zach Kornfeld of The Try Guys announced that he is starting a new tea company in two months or less, without leaving his apartment, and spending less than $500. The goal is to create and sell two original blends: “one for energy and one for chillin’ out.”

Constraints are Good for Creativity

It’s intriguing to watch someone create a new company is real time, particularly in this situation where Zach has a limited budget and is sheltering in place. These limitations are not necessarily bad things. On the contrary, entrepreneur and keynote speaker Jay Acunzo regularly talks about how “Constraints are a strength.” They increase the need for thoughtfulness and creativity. Also, check out his fantastic book Break the Wheel. It has an entire chapter dedicated to constraints and decision-making.  

Zach started by consulting Jason D’Mello at the Fred Kiesner Center for Entrepreneurship for business advice, who advised him to create a DBA (doing business as) as the start of his company. (I recommend that every entrepreneur create a separate business entity – LLC or corporation – for their company, but in California, that comes with a hefty annual fee that would break Zach’s budget, so I get why he’s starting with a DBA.)

Before filing DBA, Zach needed a name for this new company. Zach’s first idea was to name his tea company Turtle Tea because it doesn’t matter how you start or how many times you fail. What matters is that you keep trying – slow and steady.

What Zach Did Right – Legally Speaking

Trademark laws apply to branding in the U.S. – company names, product names, logos, slogans, etc. There are many legal issues that can crop up when selecting a brand. Before Zach ran with Turtle Tea as his brand, he did a lot of things right.

He Checked the USPTO Trademark Database

Zack used the Trademark Electronic Application System (TEAS) on the U.S. Patent and Trademark Office  (USPTO) website, to try to register Turtle Tea as a trademark. He didn’t just submit an application but checked the USPTO’s trademark database first to see if anyone else had already registered that name.

Unfortunately, someone else already owns a trademark for Turtle Herbal Tea. If he tried to register Turtle Tea with the USPTO, he would have been throwing money away. If Zach used Turtle Tea as a trademark anyway, he would have set himself up to get a cease and desist letter (or worse) from this trademark owner and would have had to rebrand his company.

He Checked Alternative Spellings for Potential DBAs

Now that Turtle Tea was off the table, Zach started running trademark searches for other potential names. One thing he did was check alternative spellings. A primary rule in trademark is you’re not allowed to have a trademark that is confusing similar to someone else’s such that consumers will be confused about whose product they’re buying. You can’t register a trademark if it sounds confusingly similar to someone else’s – different spelling but sounds the same.

When Zach looked up “Zach,” he also had to check “Zack.” Likewise, when he looked up “Zach’s” he had to look up “Zax.” When I research my client’s trademarks, I try to look up alternative spellings to make sure a sound-alike trademark hasn’t already been registered.

He Checked Related Products for Similar Trademarks

When someone has a registered trademark, they have the right to use their name on their goods/services as well as on the ones they would logically expand into. For example, if someone sold milk, a product they’d like expand into is cheese or ice cream.

Likewise, Zach needed to consider not just tea companies that had registered similar marks to what he wanted, but also other beverages. One of the names he was considering had to be rejected because it was already registered by a coffee brand.

By the end of this video, Zach didn’t have a name for his company despite his many searches. This frequently happens. (Zach’s fans are suggesting names for his company via social media. The best one I’ve seen so far is Korndidtea – a take on his Twitter handle, @korndiddy.) Many clients send me dozens of trademarks to search against the USPTO database for them before deciding on a name. You don’t want to waste time and energy on a brand that have already been claimed as a trademark by someone else.

I love that Zach’s experience shows that Joe Average people can use the USPTO trademark database to do their own preliminary searches when considering a name for company or product. I don’t recommend filing a trademark without consulting a lawyer, but you can definitely your basic research yourself.  

Six Ways to Work on Your Photography Business While in Quarantine

“Lens Cleaning” by The Preiser Project from Flickr (Creative Commons License)

I cringe every time I see a post about photographers and models teaming up to shoot during the COVID-19 pandemic when they should be social distancing and staying home. The only photographers who should be out shooting these days are the ones who are documenting the pandemic.

My business mentor taught me that when you’re not working in your business, you should be working on your business. Here are 6 ways you can work on your business while sheltering in place.

Edit Your Images From TFP Shoots

Models frequently complain that they rarely get images from open TFP shoots. They held up their end of the bargain. Now it’s time for you to do yours.

Brainstorm and Research Future Projects and Collaborations

Now is a good time to reach out to models you want to work with and research ideas for shoots you want to do when the Shelter In Place orders are lifted. There are lots of online groups where you can network with other photogs and models.

Create Your LLC

Are you still a sole proprietor? <shiver> Please fix that. No entrepreneur should be without a business entity for their company.

In most states, you can create a business entity online. Look up your state’s Secretary of State Office or Corporation Commission.

Review or Create Your Legal Documents

Do you have templates for your client contracts, model releases, and copyright license? If not, now you have the time to create them. If you have them, can you remember the last time your reviewed them? If not, now would be a good time to do that. A lot of people are double checking that they have an effective force majeure provision in their agreements.

If you want to respond to suspected copyright infringement by sending a cease and desist letter, now is the time to create an epic C&D template so you’re ready to lay the smack down on anyone who violates your rights.

Update Your Website

I bet it’s been a while since you did that. Make sure it accurately reflects your style and strengths. Even I’ve spent time while sheltering in place, updating this site.

Clean Your Gear

Now you have the time to clean your gear, including cleaning out gear you no longer use. Get your gear serviced if your camera shop is still open. Don’t forget to go through your memory cards and get rid of images you’ll never do anything with.

If you can’t resist the urge to pick up a camera, please limit yourself to shooting still life, self-portraits, and/or shooting at home with members of your household. You can also work on your craft by re-editing older photos and taking online trainings on various techniques and skills.

Lights Camera LawsuitTM

There’s always a need for quality legal information for photographers. That’s why I created an online course called Lights Camera Lawsuit: The Legal Side of Professional Photography to address photographers’ most important questions. It’s 23 lessons, nearly 6 hours of legal information, with tons of information about contracts and copyright. I want you to feel secure in your business, confident in the way you operate day-to-day, knowing that you’ve set yourself up to get paid what your worth without incident.

The course is $497, but until June 1, 2020, you can get it for 20% off with promo code thrive20.

Share, Don’t Steal Content in Response to COVID-19

Don’t Steal by Marguerite Elias from Flickr (Creative Commons License)

During this pandemic, many companies are reaching out to their audience with message of reassurance, information about changes in their services, and ways their audience can help during this challenging time.

My friend, Jessica Bay, walks dogs professionally as well as educates would-be professional dog walkers. She created a helpful graphic for her audience:

A short while later, she noticed this in her social media feed:

And later this one:

She asked me if these were instances of copyright infringement. If someone is copying word-for-word or close to it, that raises the red flag for copyright infringement. There are definite similarities. I wouldn’t be surprised if one of these graphics were inspired by another’s post.

Let’s assume that one of these graphics is a rip-off of another. It doesn’t make sense to me that someone would do that. In a niche market like dog walking and pet sitting, there’s no downside to sharing another’s graphic since the provider has to be in the physical vicinity of their clients. And for companies that educate would-be dog walkers, you should be confident enough in your work that your clients aren’t going to jump ship because of a graphic on social media.

Conversely, there are only so many ways to convey the same information, and independent creation is a defense against copyright infringement. It’s possible that each of these three companies independently came up with the idea of creating a graphic about how their audience could support the dog walking/pet care industry while under quarantine or practicing social distancing.  

My Two Cents

Speaking as a lawyer and as an entrepreneur, if you see a graphic that would be helpful to your audience, share it. The best way you can add to the conversation would be to create your own content that builds on the original message, not just repeats it. (If you’re going to create content that repeats another’s message or general information, at least find an original way to do it.) If someone wanted to build on this, they could have created a graphic about the importance of maintaining normalcy in your pet’s life, which includes their walking schedule.

If you get caught copying another’s content that’s so blatant that everyone will know that one is a rip-off of the other, it’s going to have an adverse impact. Instead of coming across has helpful, you risk being seen as lacking integrity and creativity.

If You Get Caught Stealing Content

If someone calls you out for potentially stealing content, and that’s what you did, just delete what you created, and don’t do it again. Saying it’s a “good message to spread” is not a valid excuse for copyright infringement.

Ripping off a company’s graphic is on the same level as claiming another person’s poem as your own because you thought it was pretty. I think some people have a mental disconnect where they don’t think copying commercial speech is as bad as other infringing behavior. (Creating a graphic with your business logo on it, even though it is not a sales pitch, is commercial speech.)

If someone has a good message to share, and their original content is shareable, then share it. That’s the best way to share the valuable message with your audience.

Sharing Done Right

I have seen this graphic all over social media over the last few days:

Hat tip to The Counseling Teacher for creating such a helpful graphic. This graphic has the right message at the right time. Additionally, I haven’t seen any instances where sharing this graphic had a negative impact on anyone’s business.

Force Majeure is a Contract Must-Have

“Disaster” by jiwasz from Flickr (Creative Commons License)

Recently, a member of one of the mastermind groups I’m in asked if he should modify the force majeure provision of this contract template in case he encountered a situation where he was unable to perform as promised due to restrictions related to COVID-19. 

Force Majeure = Worst-Case Scenario Clause

Force majeure comes from Latin meaning “superior force” and applies to unforeseeable circumstances that prevent someone from fulfilling a contract. A force majeure provision will state that One or both sides of a contract are not liable if they’re unable to perform their obligations due to circumstances that are outside of their control.

A force majeure clause might say something like:

Consultant shall not be liable for failure or delay in performance of Services if such failure or delay is a result of causes and/or circumstances beyond the Consultant’s reasonable control and without its fault or negligence.

Including, But Not Limited To . . .

Many times, this provision includes a list of things that qualify as force majeure situations. This list may include, but is not limited to:

  • Accident
  • Illness
  • Riot
  • Strike
  • Natural disasters
  • Terrorist attacks
  • Failure in transportation
  • Acts by deities (I prefer this over “Acts of God” because it’s more inclusive)
  • Fire
  • Flood
  • War
  • Zombie apocalypse

Remember: You can put in anything you want in a contract as long as it’s legal.

It’s important to include the phrase like, “Including, but not limited to,” so you don’t inadvertently limit want counts as a situation when the force majeure clause would apply.

Written Broadly on Purpose

This provision is purposely written broadly to cover any situation outside the person’s control that would impact their ability to perform their obligations under the contract. Going back to the question from my mastermind group, he’s a professional speaker and his provision had the “including, but not limited to” list that included “illness” and he asked the group if he should also include “public health emergencies.”

The word “illness” is broad. It could apply to situations where:

  • You get sick.
  • A family member gets sick.
  • There’s an epidemic in the country where you’re supposed to be going, and officials have closed the border.
  • There’s an epidemic and even though you can get to the location, if you do, you’ll be forced into a quarantine for 14 days afterwards, which will force you to miss your next speaking engagement or otherwise take care of your family.

Mitigate Damage

When a person is required to rely on the force majeure provision of their contract because they were unable to deliver as promised, both sides are required to mitigate their damages. For example, a photographer might have to cancel an outdoor photo shoot due to rain. The way to mitigate that damage is to reschedule for another day.

I’ve seen a professional speaker get into a situation where something interfered with his ability to travel to an event. The speaker and the event mitigated their problem by having him present remotely instead.

Always Have a Lawyer Create Your Contracts

Most, if not all, of the contract templates I create for people to use in their business includes a force majeure provision.

To date, I have never seen a contract template that was downloaded from the internet that was good to use as written. When it comes to the contract templates that impact your life and/or livelihood, it is worth the investment to hire a lawyer to draft or at least review the contract before you use it with a client. You don’t want to find out the hard way that there are gaps in its terms.

Lights Camera Lawsuit Pre-sale Starts Tomorrow!

“Fireworks” by Epic Fireworks from Flickr (Creative Commons License)

I’m nearly pee-my-pants excited because the pre-sale for my first online course, Lights Camera Lawsuit: The Legal Side of Professional Photography starts tomorrow! I’ve been working on this for well-over a year, and it’s so close to finally coming to market.

I’ve spent the last week promoting the bejezus out of this, and I’m so pleased that the response has been so positive:

Looks like a powerful product… I’m sure it will prove very popular!

Super good idea, and i love the curriculum.

Sound like a good (and much-needed) product.

Just forwarded it to every photographer I know

I will never stop being amazed at your entrepreneurial talents – what an amazing idea.  

On the eve of the pre-sale, I wanted to respond to some of the questions I’ve received about this course.

What inspired you to create this course?

I’ve worked as a lawyer for eight years and a model for five. Basically, I’ve worked on both sides of the camera without having to touch one. I’ve seen there is a great need for quality information about photography law, and, unfortunately, most photographers can’t afford to hire a lawyer to help with all their legal needs. I’ve seen too many photographers make costly mistakes that were completely avoidable, particularly related to their contracts and copyright. I created this course to save other photographers from making the same mistakes.

Why did you create a course instead of another type of product or event?

There are three reasons. First, by creating a course, I can maximize the number of people I can help while keeping the price down.

Second, the material in the course is evergreen (at least until the law changes), so I want it to be available when people are ready for it and looking for a reliable resource about photography law.

Third, people who buy the course will be able to access it again and again, versus a live event which is a one-and-done deal. If there are changes to the law, I can update the lesson in question or add an additional lesson to the course, and everyone who had purchased it to date will get it at no additional cost.

Does the course include contract templates?

No, and here’s why – I’m not allowed to under the rules of my law license. However, the course includes the list of provisions I include in my contracts and lots of sample verbiage from real documents I’ve created for photographer clients.

Where did the name Scarlet Maven come from?

Scarlet Maven is the name of my superhero alter ego.

Why did you have to create a separate business entity? What type did you create?

I created a separate entity, Scarlet Maven, LLC, to make it clear that there will not be an attorney-client relationship with people who buy the course.

On the advice of my accountant, I created an LLC for this business. LLCs are a great choice In Arizona, because they are basically set-it-and-forget-it entities. The state doesn’t require an annual report or fee. I don’t have to file anything with the state unless the company moves or dissolves.

What aspects of the course did you outsource?

Each lesson is going to be a screencast with a voiceover recording. I hired Elizabeth Fullerton at Boldfaced Design to create the templates for the PowerPoint slides.

Additionally, because I have no artistic talent and only had a feeling about what I wanted my logo to look like, I hired Dina Miller at Square Peg Creative to create the logos for Scarlet Maven and Lights Camera Lawsuit.

Both were money well spent. These ladies did a beautiful job.

How have you been promoting the course?

In addition to promoting the course through Scarlet Maven’s email list, I sent well over 500 individual emails to photographers, lawyers, and other professional creatives who might be interested in the course or who might know people who would be interested in the course.

The promotion won’t end with the pre-sale. I expect Lights Camera Lawsuit will be a course I sell for years to come, so I’ll continue to look for opportunity to reach more people about it.

What parts of this process were fun?

Creating the outline for the course and each of the lessons was fun. So has been talking with photographers about their needs and what they hoped to get out of this.

What new skills did you have to learn?

This venture gave me the opportunity to learn some new skills. This was the first time I ever created a website with Squarespace. It’s quite different than working with WordPress, but not too hard once you learn the basics.

This is my first online course, and I’m using Teachery for it. I was so glad and relieved to learn that this platform is super easy to use. I’ve also taken a number of courses that platform, so I know how easy it is for users as well.

What challenges did you face?

Scarlet Maven is my side business, so one of the challenges I faced was making time to devote to the business, create the course, and promote it. I still have my full-time job being a lawyer, writer, and speaker where I don’t always control when I have deadlines or when work gets dropped in my lap.

The biggest challenge I faced, by far, with this venture has been managing my anxiety.

  • What if no one likes it?
  • What if no one buys it?
  • What if I screw up making it and it never gets to market?

These are the types of fears I wrestled with on a daily basis. Sometimes they caused me to procrastinate working on the course. The best way I knew to manage them was to focus on the next task in front of me instead of being consumed by the bigger fears related to the course’s overall success.

Lights Camera Lawsuit Pre-sale: February 14th-18th

The pre-sale for Lights Camera Lawsuit: The Legal Side of Professional Photography will last only five days!

Pre-sale Starts: Friday, February 14, 2020 at 8am AZ Time

Pre-sale Ends: Tuesday, February 18, 2020 at 6pm AZ Time

Pre-sale Price: $199 (60% discount)

Please subscribe to make sure you don’t miss out on this fantastic pre-sale price. I’ll never offer this course at this price again.

When the course goes live on March 16, 2020, the price will be $497. This is still a bargain for 10+ hours of legal information, but why pay more?

Having a Photography Business is Two Jobs in One

Ghost Dance by darkday from Flickr (Creative Commons License)

Being an entrepreneur is two full-time jobs in one: performing your craft and running a business.

So Many Hats, So Little Time

As a photographer, you have so much to do – photo shoots, edit images, maintain your web presence, promote your business, and garner new clients. Plus, you have to answer emails and phone calls, take care of your billing and accounting, buy office supplies, and take care of the things that normally come with a 9-to-5 job like saving for retirement, health insurance, saving for retirement, planning for time off . . .

Geez. Maybe it’s more like six jobs in one.  

Non-entrepreneurs don’t know how much work it is to keep all the cogs in the machine turning.

Best Advice I Received as an Entrepreneur

One of the best pieces of advice I heard when I was just starting out as an entrepreneur was:

When you’re not working in your business, you need to be working on your business.

When you don’t have client work to do, you need to be working on getting the next client in the door, and/or keeping up with the business side of your company.

How You Set Up Your Business Determines Its Success

How you set up your business, not just creating a business entity, will streamline future decisions. You want to know, and communicate, in advance:

  • Your policy regarding cancellations,
  • Pricing, including rush fees,
  • The turnaround time for deliverables, and
  • Your terms of licensing your work.

Remember – It’s your business. You make the rules.

You also want to make some in-house rules for yourself, like deciding how you to respond to suspected copyright infringement, how you’ll interact with your clients, and when to invest in more training or new equipment.

Having policies and systems in place will make you a more efficient and effective business owner, which will clear up time and energy to devote to your craft.

Work on the Business Every Week

Each week, you should set aside some time to work on your business. Treat your business like a client and put it on your calendar. I have a standing weekly meeting with myself where I put pen to paper to celebrate victories from the past week, examine what’s working and what’s not in the business, what to try next, and to consider upcoming opportunities. This is also the time I pay bills and reconcile bank statements. I run a profit-and-loss report every month to analyze how money is coming in and going out from the company.

Recently, I learned of a photographer who almost never scheduled shoots on Monday. Instead, they used that time to buy film, return calls, accounts receivable and payable, plan ahead, and send invoices. They give themselves an entire day to step back from the camera and Lightroom to take care of the needs of their business.

What about you? What do you do to take care of the business side of your photography company?

Lights Camera Lawsuit

There’s always a need for quality legal information for photographers. That’s why I created an online course called Lights Camera Lawsuit: The Legal Side of Professional Photography to address photographers’ most important questions. I want you to feel secure in your business, confident in the way you operate day-to-day, knowing that you’ve set yourself up to get paid what your worth without incident.

The course goes live on March 16, 2020 and is $497. That’s less than what I charge for two hours of work and you’ll be getting over ten hours of legal information.  

Please subscribe to make sure you don’t miss out on other fantastic offers and opportunities to interact with me.

How to Respond When a Client Violates Your Photography Contract

” Angry Face Krah” by bixentro from Flickr (Creative Commons License)

Even when you do everything right as a photographer – signed contract, quality work, deliver the final images on-time, etc., you’ll still have to deal with clients who don’t comply with the contract terms such as being late with payment or alter the images (e.g. cropping them or applying filters) before posting them online.

In these challenging situations, you have options.

What Does Your Contract Say?

The terms of your contract matter most when things go sideways. You want to make sure you have an air-tight contract that is clear about the client’s dos and don’ts, as well as how you’ll resolve disputes.

When I write a dispute resolution clause for my clients, I frequently write one like:

Parties will attempt to resolve the matter among themselves for 30 days. If the dispute is not resolved in that time, then all disputes will be resolved in a court located in [Your County, Your State]. The Parties consent to the personal and subject matter jurisdiction of this court. This Agreement is governed by [Your State] law. The Parties agree that the non-prevailing Party shall be responsible for the prevailing Party’s attorneys’ fees and costs.

Actually, many times, I recommend that my clients have their dispute resolution clause to be based on where I live and Arizona law, because in the event of a dispute, my client will have to pay me throughout the dispute and hope for reimbursement from the other side at the end. It’s cheaper to resolve the dispute on your lawyer’s turf than to have to cover their travel expenses.

Dial Direct

When a client comes to me because their client violated a contract, I often advise them that they should contact their client directly first. Many people feel attacked and go on the defensive when a letter from the lawyer arrives, and they’ll ask, “Why didn’t you just contact me directly?”

When you contact your client, be sure to give them an out, a way to save face, particularly if the client hired you for personal or family photos. They don’t likely understand things like copyright. It could be a casual message like:

“Hey there. I noticed you did XYZ. I’m glad you’re loving the photos so much. I think you may have forgotten that our contract says ABC. Please remove the images by Date.”

When you send the email, include a copy of the contract, possibly with the pertinent provision highlighted.

If that a doesn’t work, the next email should be more forceful. (This may also be your opening response, depending on the client.) You want to clearly state that the person is in violation of the contract, and they must remove images by a specific date. Many times, I recommend including the sentence, “I hope we can resolve this matter without having to resort to lawyers.”

If that doesn’t work, that’s when it’s time to have your lawyer to send a nastygram (cease and desist letter) on your behalf.

Truth be told, frequently I’m the one who writes these emails for my clients to send. This way, the emails are legally accurate, which makes it easier if I have to get involved.

Other Ways to Go After Illegal Image Use Online

If a client posted images online that they weren’t supposed to, and you’ve posted them online somewhere, you can bypass your client completely and send a DMCA Takedown Notice to the website where the images were posted. This tactic only works for U.S.-based companies and companies that comply with these notices, since the Digital Millennium Copyright Act (DMCA) is part of the U.S. Copyright Act.

To comply with the DMCA, the website has to remove access to the images. Note: It is easy for the client to send a DMCA Counter Takedown Notice to get the images restored. If you are concerned your client may do that, you may want to send them a note that doing so would constitute perjury.

Images that Should Have Been Licensed

Sometimes websites and/or paper publications ask the person in the image if they can use the photo without verifying who is the copyright owner. If this person is your client, they may be so flattered and excited by the offer, that they forget they don’t have authority to grant permission for the use.

If this happens, and your photo is used without your permission, particularly if it’s a situation where you would have charged a licensing fee, the proper response is to contact the publisher and inform them of their mistake. You can even send them a bill with a letter that essentially says, ““By using my photo, you’ve agreed to our licensing terms” and include a copy of your standard license.

“Beggar’s Sign” by Eli Christman from Flickr (Creative Commons License)

Non-Paying Clients

There are few things more frustrating for any entrepreneur than having to chase a client for payment. I’m a strong advocate that photographers should not provide proofs to a client until all outstanding balances have been paid.

Likewise, if the expectation is that the client must pay you before or at the time of the event or photog shoot, and they don’t pay, don’t be afraid to leave. Why do any work for them if they haven’t paid you to do so? If you choose to stay, I hope your contract includes a provision that lets you charge a hefty late fee.

No matter what or how you charge for your work, always send a reminder about when payments are due, including a notice about your penalties for late payment.

Contract are relationships management documents. They should address the interactions with your clients, including when things go sideways.

Lights Camera Lawsuit

There’s always a need for quality legal information for photographers. That’s why I created an online course called Lights Camera Lawsuit: The Legal Side of Professional Photography to address photographers’ most important questions. I want you to feel secure in your business, confident in the way you operate day-to-day, knowing that you’ve set yourself up to get paid what your worth without incident.

At $497, the course contains nearly six hours of legal information you can immediately apply to your business. That’s less than what I charge for two hours of legal work for clients!  

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