What Makes an Effective Photography Contract Template

“Photographers” by Mark Fischer from Flickr (Creative Commons License)

One of the most common questions I get from photographers is, “Where can I get a good (free) contract template online?” I’m sorry to say that I have yet to come across such a resource that I’d feel comfortable recommending to anyone, but I can tell you what I look for when I review these documents.

Contract = Relationship Management Document

The best way I can define a contract is it’s a relationship management document. Its purpose is to put everyone involved on the same page about their responsibilities and how you will address certain problems if they occur. Contracts manage expectations and allow you to hold each other accountable to the promises you made.

When I write a contract for a client, I try to walk through the interaction between the people involved during the relationship created by the contract and consider potential problems that might occur.  

Here’s something to note about contracts: Whichever side writes the contract, does so based on their best interests. The drafter is looking out for their interests, not yours. I write the same type of contract quite differently depending on which side is my client.

Photography Contract Review

When a client asks me to review a photography contract template, these are some of the provisions I expect to see in a quality contract:

Parties and Scope: A contract should be clear about the who, what, where, and when between the parties. A third party should be able to read the contract and understand who is party to the contract and what their responsibilities are.  

Consideration: “Consideration” is legal term meaning an exchange between the parties – what is each side giving and getting. In photography contracts, it’s usually trade for photos (TFP) or payment for images.

Deliverables: I would expect a photography contract to clearly state what the model/client is getting from the photographer as well as any limits on what the model/client can do with the images.

Copyright Notice: The contract should state who will own the copyright in the images – the photographer or the model/client. If the model/client is getting the copyright, I’d expect them to have to pay more than if they were just getting the images and a license to use them in certain ways.

Model Release: If you want to use the images for marketing purposes or to make money off the images in other ways, you will probably need a model release.

Problems and Worst-Case Scenarios: How are you going to deal with common issues like cancellations, no-shows, refund requests, and late payments? Those all should be addressed in your contract. What about rare but bad problems, like the files from the shoot are stolen, corrupted, or otherwise destroyed before you can make a back-up copy? You may want to address the worst-case scenarios in your contract too – usually in the “force majeure” section.

Dispute Resolution: If there is a problem between the parties, how will you resolve it – mediation? Arbitration? Litigation? Some other way? In what county and state will this occur? Which state law applies? In some states, you must specify that the non-prevailing party has to pay for the prevailing party’s attorney’s fees, otherwise the court won’t likely require this.

Boilerplate Terms:  There are some provisions that I include in nearly every contract I write, like waiver, severability, modification, and entire agreement. These are the provisions that can have a substantial impact on your relationship with the other party but are often left out when a lay person tries to write their own contract.

No One Size Fits All

A contract template is a starting point for a contract with a model/client. There may be times when you need to revise it to fit the needs of a project. Additionally, you will likely need different templates for portrait work and event photography because the issues the contract needs to address are different.

There’s nothing wrong with using a contract from the internet as a place to get ideas for contract terms and how to phrase provisions, but I’ve never seen a contract template that someone got for free online that I would approve as written.

I’m Working on a New Project, New Company

I created a new company (separate from my law practice) so I can offer online courses. My first one will be “Lights, Camera, Lawsuit: The Legal Side of Professional Photography.” If you want to stay in the loop about the course, discounts, and get weekly tips on how to be a more effective professional, please add yourself to this exclusive list. (This is completely separate from the CLF newsletter list.)

If You’re Going to Represent Yourself

https://www.flickr.com/photos/indyblue/262966370

“David and Goliath !” by Indyblue from Flickr (Creative Commons License)

I’ve received a number of questions from people who want tips about representing themselves in a lawsuit. I’ve also had the experience of being in a lawsuit where the opposing side opted not to have counsel. These are my recommendations if you’re considering appearing in a lawsuit in propria persona (“pro per”).  

Don’t.

The saying is true: The lawyer who represents themselves has a fool for a client. This is doubly, or triply, true for a non-lawyer who represents themselves, especially if the other side has counsel.

You will be at a considerable disadvantage from the start because you likely don’t know the processes involved in litigation or the civil rules of procedure that apply in that court. (Law students take at least one semester of civil procedure.) If you self-represent, you may often feel like you’re flailing while trying to understand the basics of being in litigation.

Your opposing counsel may have years or decades of experience, and will use it to their strategic advantage on behalf of their client. The court will be somewhat understanding of your disadvantage, but “I didn’t know” is never a valid excuse for any mistakes you make. You will be held to the same standards as represented litigants and lawyers

Check the Court’s Self-Help Website

Many court websites have a self-help section for people who are representing themselves. This webpage may have forms and guide about the process to assist you.

If you have a law library, use it! This may be part of the court or a law school. Make an appointment with the law librarian. They are there to help you, and I’m sure you won’t be the first pro per litigant to ask them for help.

Invest some time to learn about the claims in your case. Learn the elements of each one, what is the burden of proof and who has it (including when it may shift from one side to the other). Matching elements of the claim to evidence and supporting it with statues and/or case law is a large part of litigation.

Don’t Ignore Documents and Filings

Do not ignore any documents that are served on you via email or regular mail. Saying “I never received it” won’t save you if the other side followed the court’s procedure for service. These may be things like interrogatories, requests for admissions, and other types of discovery. Not responding to these may be detrimental to your case.

Additionally, there are limited times in which you can send such documents to the opposition, and if you don’t send these to the other side, you may lose precious opportunities to acquire information for your case.

Consult a Lawyer

Some people represent themselves because they can’t afford to hire a lawyer. I get that. The legal system is biased towards people who can afford counsel. The saying “You can get as much justice as you can afford” has a lot of merit.

Even if you can’t afford to be represented by counsel, you can still hire a lawyer that you periodically consult to help you create a strategy, craft your arguments, and prepare your filings.

If you’ve been served with a lawsuit, consult a lawyer immediately! The deadline to respond comes up fast, and if you don’t respond, you could lose by default. If you want to sue somebody, even if you want to represent yourself, you should still consult a lawyer to prepare an effective complaint.

Thanks for reading this post. If you liked this post and want to know more about my work, please subscribe to the Carter Law Firm newsletter where I share behind-the-scenes information and readers get exclusive access to me.

Let’s Talk About Trademarks

https://www.flickr.com/photos/trippinlarry/5987691227
“Lemonade, anyone?” by trippinlarry from Flickr (Creative Commons License)

I’m going to say “no” a lot today. I’ve seen many trademark questions lately, many of which make me cringe.

Here’s what you need to know about trademarks. They are synonymous with branding. Your trademarks are the names, logos, slogans, etc. that you put on your products or services that differentiate you from the competition. They inform consumers about the origin and quality of the product or service.

When you apply to register a trademark, you have to tell the U.S. Patent and Trademark Office (USPTO) what you’re claiming as a trademark and on what products or services you’re using it. The USPTO won’t register your trademark if it’s too similar to a previously registered trademark. If they have a problem with your application, they’ll send you an Office Action with an explanation of the problem, and they give you 6 months to submit a response.

This is also why it’s possible for two companies to use the same trademark when they’re products and services are so different that no one would think they came from the same company, like Delta Airlines, Delta Faucet, and Delta Dental.

Onto the questions . . .

How would an Unregistered Trademark be Better for “Brand Image” than a Registered Trademark?

 A trademark is a trademark regardless of whether you register it or not. What changes is the rights you get with your brand when it’s a registered trademark. Having a registered trademark gives you the ability to stop competitors from entering the marketplace in the U.S. while using a trademark that is confusingly similar to yours. (Trademark rights are limited by country. If you have a registered trademark in the U.S., that doesn’t mean someone couldn’t register the same trademark for the same goods somewhere else.)

When you don’t register your trademark, you only can get common law trademark rights based on the geographic area where you are using the mark in commerce. You won’t have the ability to stop a competitor from using the same or a confusingly similar trademark in another geographic area in the U.S. like you’d be able to do if you had a registered trademark.

Additionally, if you don’t register your mark, there’s a risk that your competitor will, which will limit your ability to use your trademark to the area established by your common law rights when the other mark was registered. This happened to the first Burger King restaurant. The first Burger King was “frozen” in its established area when the franchise registered the trademark. If the first Burger King company wanted to expand beyond that area, it must do so with a different trademark than “Burger King.”

If your company is going to license its trademark to others, having a registered trademark is more valuable that an unregistered trademark. For many companies, their most important asset is their intellectual property.

If I Want to Apply to Register a Trademark and There’s a Competitor That’s Already Registered a Similar Name, Will I have a Better Chance with the USPTO if I Apply to Register my Logo that Contains the Company Name?

Why do you want to a brand that’s similar to your competition? It baffles me when companies knowingly pick a name that’s like one that’s already in use. It makes wonder if the owners are trying to ride a competitors’ coattails (which is illegal) or if they don’t understand how branding works.

The purpose of having a trademark is to prevent consumer confusion. The USPTO does not want to grant companies the similar trademarks if they’re selling similar products or services.

For a lot of companies, I recommend filing the word mark for just their name (assuming it’s trademarkable) as well as the logo, because logos often change over time. The name of the product or company usually doesn’t.

The USPTO requires separate applications for the logo and the word mark if you want both as registered trademarks. When a logo contains words, those often are given more weight than the rest of the logo in terms of whether there’s confusion because that’s often the most prominent part of the logo. The logo components may help differentiate your trademark from the competition, but it may not be enough. You can always apply and see what happens.

Can I use a Cancelled Trademark if the Owner is still Manufacturing the Product?

When you do a search on the USPTO trademark database, it will show the trademarks that are “live” and “dead.” A dead trademark may be “abandoned” or “cancelled.” An abandoned trademark was one that was applied-for but never registered. A cancelled trademark was registered at one time but not anymore.

When a company has a cancelled trademark but is still using it, it likely means that they registered the trademark and did not file the renewal when it was due. The company still has common law trademark rights based on its geographic market.

It may be possible to use a cancelled mark that’s still in use as long as you’re not in the competitor’s established geographic market, but I usually don’t recommend it. It sounds like a situation where you’d be setting yourself up to get a cease and desist letter and/or sued for common law trademark infringement and unfair competition.

On the flip side, I have seen companies use trademarks that have been cancelled and the previous owner has long since stopped using the trademark or the previous owner went out of business. A few years ago, I saw popsicle companies doing this – claiming abandoned trademarks and bringing the product back to market.

Is it OK if my Trademark is Barely Different than Someone Else’s – Like Adding or Removing a Space or Adding a Word?

The key to whether your trademark is different enough is based on whether consumers will be confused. As such, the USPTO treats trademarks that look and sound the same as being the same. You can’t take a registered mark and change the spelling slightly and have a valid trademark for the same product or service.

When you take someone’s trademark and add a word to it, the USPTO will consider how similar the marks are. If the main part of the mark matches an existing registered mark for the same type of product or service, it’s less likely that the USPTO will register your trademark as well.

There is no equation or formula you can use to guarantee that your trademark application will be approved by the USPTO.

Can I File my Own Trademark Application?

Yes. You don’t have to be a lawyer to submit a trademark application to the USPTO, though I recommend using one. At the very least, it’s best to have a lawyer review the application before you submit it. I’ve run into too many people who submitted a trademark application by themselves for trademarks that aren’t registerable. They could have saved themselves time and money by consulting a lawyer.

Thanks for reading this post. If you liked this post and want to know more about my work, please subscribe to the Carter Law Firm newsletter where I share behind-the-scenes information and readers get exclusive access to me.

Why Contracts Have So Many Definitions

https://www.flickr.com/photos/eleaf/2561831883

Iron Horse Bicycle Race Durango Women 10″ by Eleaf from Flickr (Creative Commons License)

This week, I had a chat with someone who was concerned about the media release provision in a contract to be in a cycling race. It said by signing up for the race, you give the organizers permission to use any video or images of you, your likeness, you name, and your biographic information for any purpose without need any additional information from you. He was worried that the race organizers could sell his life story without his permission.

I’ve seen this provision on every race contract I’ve signed – and it wasn’t one of the ones I altered. This type of provision is on lots of contracts, event tickets, even on A-frame signs around the state fair. Organizers want to use the photos from their event to promote the organization and its activities. They want to be able to make you their poster child if they snap an amazing photo of you. They want to be able to caption a race photo with “Chris Jones, 37, of Truth or Consequences, New Mexico . . .”

These organizers don’t want to sell your story to make the next Lifetime Movie. I know this because (1) they don’t know your life story and (2) they’re not in the business of sell stories for the next movie of the week.

This conversation reminded me of why contracts have so many definitions. Sometimes they start with pages of definitions. They help eliminate confusion and avoid disputes when questions arise down the line.

If there is a dispute about the meaning of a word in a contract, and both sides have a reasonable interpretation of it, the court will side with the person who didn’t draft the contract, unless the contract states otherwise. (Check your jurisdiction’s rules to see if the same rule exists where you live.)

Going back to the would-be racer, I told them if they had concerns about what a term in the agreement meant, they should email the organizers for clarification. (Never be afraid to ask questions about a contract before signing it.) If there’s a dispute later surrounding the meaning of the provision, they would be able to use the email response as the basis for their reasonable belief as to what it meant and to counter any contradictory statement by the other side.

If you’re in a situation where you need to create, draft, or negotiate a contract, please call a contract lawyer for help. (This week, my editor sent me an FYI email about a company in Columbia that is selling a “Pack Of Professionally Drafted Legal Contracts” for $24. I responded with “Let me know how that $24 contract holds up when challenged in court.”)

Thanks for reading this post. If you liked this post and want to know more about my work, please subscribe to the Carter Law Firm newsletter where I share behind-the-scenes information and readers get exclusive access to me.

I Can’t Pre-Guarantee Your Case

https://www.flickr.com/photos/157270154@N05/38470202756/
Photo by CreditDebitPro

I regularly receive emails from prospective clients who explain the gist of the situation they’re in followed by, “Do I have a case?” A variation of this email is the prospective client who sends me a small section of a contract they signed and a short summary of the situation they’re in and then they ask if I can help them obtain a specific outcome. Some prospects specifically say that they don’t want to hire me, not even for a consult, unless I say they have a case.

Here’s the Deal

I can’t give anyone a guarantee about the outcome of a legal matter based on an email. If the law were that easy, we wouldn’t need lawyers.

In any situation, I have to examine:

  • The parties involved,
  • Which law applies – statues and case law, and
  • What actually happened

before I can say whether you have a case.

I can’t give effective legal advice without all the pertinent information. I can’t evaluate a contract based on a single provision. I have to read the whole thing. To not do so would likely be unethical and potentially worthless to you.   

There is one caveat to this. If I’m talking with a person who wants my help, but it sounds like they need someone other than a lawyer, I’ll tell them that. Whenever I deal with someone who’s experiencing online harassment, I tell them that they may have a situation that should be handled by law enforcement. If they still want to meet with me, I warn them that this may still be my recommendation at the end of the hour.

I Don’t Want to Pay to be Told I Don’t Have a Case

I get that people don’t want to take the time or spend the money to meet with a lawyer to be told they don’t have a case. But if you want a lawyer to analyze your situation, part of what we do for a living is that analysis.

Maybe it would make sense to look at this situation using a medical doctor instead of a lawyer. I’ve never heard of anyone going to the doctor with the sniffles and saying they didn’t want an appointment unless the doctor said they could make the person better. That’s ridiculous.  Some illnesses don’t get better, and some are things like the cold virus that just has to run its course.

I don’t like telling my clients that they don’t have a case anymore than they don’t want to hear it, but sometimes that’s the case. The fact that you’re upset does not mean that you have been legally harmed. Until I actually look into the person’s matter, there’s nothing I can tell a prospective client except “Would you like to schedule a consultation?” or something to that effect.

Yes, I Charge People to Talk to Me

If you’ve ever called my office phone, you know my outgoing message says don’t leave me a voicemail, send me an email. I do this for a few reasons:

  1. Unless it’s an expected call, I rarely answer my phone. When I’m working on a client’s matter, I don’t want to be distracted or interrupted. I’ve also turned off the ringer on my office phone. I won’t notice the call coming in unless I happen to be looking at the screen and see it change to the incoming caller’s number.
  2. When you leave a voicemail on my phone, a little red flashy-flashy light goes off until I deal with the message. It annoys the crap out of me. (Pro tip: Don’t annoy your lawyer.) It forces me to divert my attention away from focusing on my client, deal with the message, and then take extra time to pick up where I left off on my client’s matter.
  3. If the call is from a prospective client, they usually want to tell me their whole story before asking for help. This is what the consultation is for, and no, I don’t do free consults.

Sometimes all a person needs is a consultation. I’m happy tell people how they can help themselves in a situation, and I have no problem providing recommendations that are mindful of the person’s budget.

A few years ago, someone called me and they were incredulous when I said that they had to pay to talk to me. Listening to, analyzing, and providing information and advice on a legal situation is what I went to law school to do. This is my profession. If you want to hear my perspective on your legal situation, you have to pay for that privilege. (There are lawyers who do give free consults. I am not one of them.)

 I wish there were more guarantees in the legal profession. Just this week, I reminded a colleague that our job is to present the best case for our client and advocate on their behalf, but the ultimate decision in the matter is left to another authority.

Thanks for reading this post. If you liked this post and want to know more about my work, please subscribe to the Carter Law Firm newsletter where I share behind-the-scenes information and readers get exclusive access to me.

Keep Your Clothes On, Kids!

https://www.flickr.com/photos/120920526@N08/16053219327/
Dark Selfie by www.sebastian.rieger.photos from Flickr (Creative Commons License

I regularly get messages from teens or their parents that say the kid was chatting online with someone they don’t know in real life. The person convinces the child to show their genitals or masturbate for them using their web cam. The person then says that they captured the video and threaten to post it online or send it to the kid’s friends, family, and/or school. Sometimes the person demands money in exchange for not sharing the video with others.

The variation of this situation I regularly hear about is from teens who send nudes or partial nudes to someone online, and then the person threatens to post them online. In one email, the teen said the person threatened to post the images if the teen refused to continue sending nude images of herself.

Ugh!! What is wrong with these people who are preying on kids like this? Don’t coerce children into creating and sending child porn.

These situations usually involve 14, 15, and 16 year-old kids – of all genders. When they reach out to me, they are petrified. They’re afraid they’re going to be humiliated. They’re afraid they can’t ask for help from an adult in their life. They’re afraid of what they’re parents are going to say if they find out. They’re afraid they’re going to get into trouble.

I wanted to share a few thoughts so hopefully other teens don’t have to go through this situation.

You’re Not a Bad Person, Kid.

If you’re a kid in this situation, you’re not a bad person. You made a mistake, hopefully one you won’t have to repeat again.

Whenever you send a nude image of yourself, regardless of whether you’re sending it to a stranger on the internet or texting your romantic partner, there’s always a risk that the images could fall into the wrong hands. For the rest of your life, whenever you choose to send nude images of yourself, assume they’re going to be seen by your family and friends and/or end up online.

Ask for Help

No one should have to deal with this type of situation by themselves, especially a kid. Reach out to a trusted adult in your life – a parent, a friend’s parent, a teacher, a coach, even the police. You can always call the non-emergency number for your local police department to discuss your options, or ask a friend to do it for you.

It may be hard to know what the right thing to do is in your situation. You always have the option to wait and see if the person follows through on any threats they’ve made. If you tell them to leave you alone and they comply, that might be the end of it (though they now have nude images and/or video of you).

You also have the right to report the incident to law enforcement, request a restraining order from the court, or file a civil lawsuit depending on your circumstances.

Legal Implications – For Both Sides

Given that these are situations that may involve the creation and sending of child pornography, there are many potential legal implications, including some for you.

Depending on the rules of your state, by taking nude pictures of yourself or performing live on camera, you may have participated in the creation of child porn. The same law would apply to someone who voluntarily sends a nude image of themselves to their significant other. Some states have lower crimes for dealing with the situation where the person in the photo is also the creator.

The perpetrator, the bad actor, could be facing many of legal accusations:

  • Requesting nude images or performance by video: Solicitation
  • If two or more people are in cahoots to get nude images from kids: Conspiracy
  • Creating screenshots or captures from your performance: Creation of Child Pornography
  • Keeping the photos and video you provided: Possession of Child Pornography
  • Threatening to share the images with others: Revenge Porn
  • Demanding money to keep the person from sending the images with others: Blackmail/Extortion
  • Sending the photos and video to others or posting them online: Distribution of Child Pornography

There could be other legal implications in addition to these. As always, check your local laws for information pertinent to your specific situation.

Perpetrators Deserve to be Punished

People who prey on children like this deserve to face the consequences of their actions. If the person is outside the U.S. or if they created a fake account, it may be difficult to pursue the person. You always have to contact the police to file a report. Even if they can’t catch the perpetrator based on your case, the person may do it again to someone else, and the information you provide could help.

I regularly talk with kids who say they don’t want to report the situation to the police; they just want the person to stop. One way these perpetrators try to avoid punishment is by relying on the victim to be too afraid or ashamed to report them. Whether you report this person or not is your decision.

I was pleased recently when I saw that YouTuber Austin Jones pleaded guilty to child porn after he allegedly solicited explicit videos from 14 and 15 year-old girls using Facebook Messenger and Apple’s iMessage services.  He even alleged told them to send these videos to prove that they were his fans.

Eww! Eww eww eww! People like this are disgusting!

He’s scheduled to be sentenced this May and could face at least five years in prison.

Thanks for reading this post. If you liked this post and want to know more about my work, please subscribe to the Carter Law Firm newsletter where I share behind-the-scenes information and readers get exclusive access to me.

How to Write a Decent Trademark Cease and Desist Letter

https://www.flickr.com/photos/tangi_bertin/541603067/
Stop by tangi_bertin from Flickr (Creative Commons License)

A friend recently forwarded me a trademark cease and desist letter he received and asked if it was anything they needed to worry about. Now, I always tell my clients to take such letters seriously, and give them their due consideration, but then I read this particular letter. It was possibly the worst cease and desist letter I’ve ever read. It was written by an entrepreneur, not a lawyer, so I automatically mentally cut the sender some slack, but still, it was bad.

If you’re in a situation where you suspected a competitor is violating your trademark rights, please get your lawyer involved. And if you’re going to write your own cease and desist letter, make it a decent one.

Make Sure Your Trademark has Likely been Infringed

A trademark has two components. It’s the name, logo, slogan, etc. that you’re claiming as a trademark plus the product or service on which you’re using it. (It’s possible for two completely different companies to have the same trademark, like Delta Dental and Delta Airlines.) For many companies, the first trademark they register is just the word or phrase that is the name of your company or product/service. This is called a “word mark.” It’s just words, no images, graphics, or sounds.

When you have a registered word mark and someone uses the same word or phrase, it’s not automatically a violation of your trademark rights. For example, Paris Hilton has registered trademarks for “That’s Hot” for “multimedia entertainment services” and apparel. These trademarks do not give her the ability to stop everyone from ever using the phrase “that’s hot,” as a descriptor. If a person is not using the word or phrase you registered as a trademark for their business, it’s likely not trademark infringement.

What to include in a Cease and Desist Letter

While I don’t endorse the idea of business owners writing their own cease and desist letters, it happens. If you’re going to write your own, these are some of the things I’d tell my client to include in their letter if they insisted on doing it themselves:

  • Provide the legal name of the person or company that owns the trademark,
  • Identify your trademark including the registration number and a screenshot of the trademark listing from the USPTO database,
  • Identify the alleged infringing activity, preferably with a URL and/or screenshot if it’s online or photographs if it is not, and
  • Clearly state what you want the recipient to do in response to your letter with a due date for compliance.

When to get the Lawyers Involved

If you encounter suspected trademark infringement, call your lawyer. Even if you want to send a cease and desist letter yourself, call your lawyer first. They can help you make sure there’s a real trademark issue that requires your attention and help you craft the cease and desist letter.

Many of my clients want to reach out to the alleged infringer to speak business owner to business owner, first. They want to send friendly but clear cease and desist letter, and give the other side a chance to resolve the matter “without having to get the lawyers involved.” I have helped write many a letter that included that phrase. The other side doesn’t need to know that I’m already involved.

If they don’t respond favorably to my client’s friendly letter, then I will follow it up with a strongly worded nastygram that demands that they cease all uses of my client’s intellectual property and failure to do so will result in litigation (or whatever consequences my client has selected).

My recommendation for clients is to refrain from making threats in cease and desist letters unless they’re willing to follow through with it. Otherwise, if the other side calls your bluff and you don’t follow through, you will lose all credibility and any further demand letters will likely be ignored.

If you threaten litigation in your cease and desist letter, be ready to pull the trigger if the suspected infringer doesn’t comply with your demands. Some people won’t take you seriously until a lawsuit has been filed. A lawsuit will force them to deal with the situation because of the court-imposed due dates or risk the effects of a default judgment if they ignore it.

Thanks for reading this post. If you liked this post and want to know more about my work, please subscribe to the Carter Law Firm newsletter where I share behind-the-scenes information and readers get exclusive access to me.

How to Legally Use User-Generated Content

https://www.flickr.com/photos/zoidberg72/16243539933
Selfie by dr_zoidberg from Flickr (Creative Commons License)

Here’s a question I get from companies and their marketers: What are the legal dos and don’ts for using user-generated content? These are situations where a company wants to use a photo, video, or text created by one of their fans, usually from a site like Instagram, Facebook, or Trip Advisor. Many companies merely want to approach the person through the platform where they found the content they want to use and ask for permission to use it. While this strategy is convenient, it may not be in the company’s best interest.

Using Content Within a Platform

It’s easiest when a company wants to share someone’s post within the social media platform – e.g., sharing someone’s Instagram photo on the company’s Instagram. Many social media sites build this option into the platform where you don’t even have to ask for permission to share someone’s post on another’s account.  

Of course, I’m a risk-adverse lawyer so I tell my clients to review the terms of service first to see what happens just in case it turns out the person who created the post you shared didn’t have the right to do so and now you have to deal with the fallout. Depending on the circumstances, I might contact the person to ask the person if they took the photo (which would indicate if they’re likely the copyright holder), try to verify that the original poster is complying with the platform’s rules

Using Content Across Different Platforms

Here’s where it gets a little more complicated. These are the situations where you want to take content from someone’s post on one platform and share it on a different social media site, your website, or another third-party platform. For this situation, I recommend you have a contract drafted by a lawyer. You could have them create a template for you if curating user-generated content is part of your marketing plan.

If I were creating a contract template for obtaining permission to use content created by a user or fan, I’d likely include terms such as:

  • The user owns the IP in the content: either they created it or they have permission to use it
  • The user has authority to grant the company permission to use the content
  • The user grants the company a perpetual, irrevocable, worldwide, sublicensable, paid-in-full, royalty-free license to the company to use the content for any purpose without needing the person’s consent or credit, including the creation of derivative works (or in the alternative, that the user grants the company a copyright assignment)
  • The user will reimburse the company’s legal fees and damages if it is accused of wrongdoing because the company used the user’s content

Such a contract would also include boilerplate verbiage, like a dispute resolution provision that states how the company and user will resolve disputes if one occurs.

Always Apply Reality

In any potential legal situation, be sure to apply reality. If a company wants to use a photo with two people in it, whoever posted the image may not be able to speak on behalf of the other person in the photo, and you may need release from identifiable people to avoid being accused of violating their right of publicity.

Additionally, it will likely take longer to get permission if you want to use images and other content across platforms. Be sure to build that into your timeline if your marketing plan involves using user-generated content.

There are also those who may question whether it’s worthwhile to have a lawyer create a contract for these circumstances. When there are no issues, a contract may seem superfluous; however, contracts are imperative in situations where there is a dispute and/or the parties forget the terms of their agreement. When you work with your lawyer to create you contract, make sure it has provisions that will apply to situations that are likely to occur as well as the worst-case scenarios.

If you liked this post and want to know more about my work, please subscribe to the Carter Law Firm newsletter where I share behind-the-scenes information and readers get exclusive access to me.

Side Hustle Contracts

https://www.flickr.com/photos/joybot/6701744493
Do the Hustle! by Joybot from Flickr (Creative Commons License)

Note: The links for Chris Guillebeau’s books are affiliate links.

I admire people like Chris Guillebeau who run with ideas and make stuff happen. He’s written a number of books, including The $100 Startup: Reinvent the Way You Make a Living, Do What You Love, and Create a New Future. The most recent book of his that I wrote was Side Hustle: From Idea to Income in 27 Days where he walks you through, day-by-day what you should do to launch a side hustle business. It’s a good book, but Chris and I disagree about how to approach contracts.

Day 14: Contract

Chris calls Day 14 “Set Up a Way to Get Paid.” This chapter covers selecting a payment system, creating invoices, and using simple contracts. For your contract, he says you only need to specify what you’ll do, how much you’ll get paid, when you’ll get paid, and “any protections you require.” Chris also says that that you can communicate all of this via email without needing a separate agreement document.

<cringe><shudder>

While Chris is technically right, I would never advise a client to operate their business this way. This is the type of contract that works when nothing goes wrong; however, contracts exist to save you in two situations:

  1. When there’s confusion about the parties’ obligations, and
  2. When there’s a problem or dispute.

Always Have a Separate Written Contract

If there is situation where lawyers are needed to resolve a dispute, the first thing I ask my client is “Where’s your contract?” If it’s a series of emails, and perhaps some text messages, and phone calls or conversations you claim occurred, the first part of my job will be compiling the terms of the agreement.

When there’s a single agreement, all the terms are in one place. And when the contract requires that all changes must be in writing and signed by both parties, it minimizes the risk of confusion or a he-said-she-said situation.

When you don’t have the terms of the contract in a single document, it opens the door for complications in the future. In many cases, it’s more cost-effective to have a lawyer create a contract template for your side hustle than to have to hire one to piece together the terms from the parties’ communications and actions. 

Minimum Contract Terms

In general, I don’t advise people to write their own contracts (unless they have a law degree or sufficient contract experience), but here are the basic terms I’d expect to find a side hustle contract:

  • Parties to the contract
  • Purpose of the contract
  • Payment terms, including what happens if the customer doesn’t pay (e.g. entrepreneurs who require ½ the fee up front and ½ upon completion)
  • Intellectual property terms – related to creation, assignment, and/or license
  • Where and how problems will be resolved, including the venue, jurisdiction, and which state law will govern
  • If/how the parties can make changes to the contract
  • “Entire agreement” – all the terms in the contract are in the agreement
  • “Severability” – if the contract has any invalid terms then the parties will throw those out and the rest of the contract will remain
  • A provision that states if a party chooses not to use a right granted by the contract, they don’t waive their right to use it in the future

When I approach a new contract for a client, I try to mentally walk through the customer’s journey and address the problems that the client is trying to avoid and pre-plan how you want to deal with problems when they occur.

Using a Lawyer for your Side Hustle

If you’re going to have a side hustle, I recommend you sit down with a lawyer for an hour. Tell them your goals and your budget. An understanding lawyer will tell you about the legal issues you need to be aware of, can do a quick trademark search to see if the name(s) you want to use are already registered, and they can tell you want you can do yourself and what tasks you should hire a lawyer to do for you.

A Few Final Thoughts

Thinking about what missteps I’ve seen companies inadvertently commit, here are a few extra tidbits of information:

  • The terms of service for a website, online course, or mobile app are contracts. Write them or have them created with care.
  • Please don’t rip of another company’s terms of service and just change out the company and product names. That’s a recipe for trouble. You don’t want to represent that you do things that you don’t. I’ve also seen situations where the company’s terms of service says that it’s governed by New Jersey law and the company has no connection to that state. (The company they stole the terms from was in New Jersey.)

If you liked this post and want to know more about my work, please subscribe to the Carter Law Firm newsletter where I share behind-the-scenes information and readers get exclusive access to me.

Legal Checklist to Protect Online Entrepreneurs

Labib Ittihadul from Flickr (Public Domain)

I was recently asked to create a list of what legal steps an entrepreneur should take if they operate solely online to protect their business. The person who asked appears to be primarily a YouTuber. Here’s the list I created for him: 

1. Consider having Two LLCs. One is a holding company for the intellectual property and licenses the IP to the other LLC to use it. This way if the holding company is sued for infringement, there are no assets to be collected if the holding company loses the lawsuit. We recommend this tactic for many businesses, not just online entrepreneurs.

2. Create an Operating Agreement if the LLC has more than One Owner.  Yes, this includes if you go into business with relatives, best friend, or romantic partner. This is a master document that lays out how the company will operate, each person’s obligations and responsibilities, and how the owners will address problems when they occur.

3. Move your Website to a Server Outside the U.S. The reason for doing is if there is ever a court order against the website, it will be more difficult to enforce if the website is house by a company outside the U.S. and not bound by U.S. law.

4. Register your Trademarks with the USPTO. So many legal issues could be minimized or avoided if every company properly registered their trademarks. This could include company names, product names, event names, logos, and slogans. When you have a registered trademark, you can stop a competitor from entering the marketplace while using a trademark that is confusingly similar to yours. If you have a strong international presence, it may be wise to register your trademarks in multiple countries.

5. Create a Copyright Strategy. Many professional content creators do guest posts for and collaborations with others and allow guest posts on their sites. It’s best to have contract templates for these situations that include clarification about who owns the copyright, what the other person gets, any limitations regarding the content, and an indemnification clause if appropriate.

Additionally, your copyright strategy should address when and how you can use others’ materials. You should have an understanding about fair use and where to look for materials that come with a license to modify the original as well as a license to use it for commercial purposes.

6. Consider Registering your Copyrights. You do not have to register your copyright to get your copyright rights, and you do not have to register everything you create; however, it’s beneficial to have the discussion about what you might want to register. You are required to register your copyright if you want to sue for infringement. Additionally, I frequently recommend registration to people who want to license or sell their copyrights.

7. Create an Action Plan for Addressing Suspected IP Infringement. Decide how you want to respond to suspected infringement before it occurs, so that you or your lawyer can be prepared to respond based on your desired outcome when it happens. Depending on how you want to respond, there may be things you need to do before the infringement occurs to best protect your rights.

8. Have a Contributor Contract Template. This is the contract you will use with people who contribute content to you, your site, your channel, or a social media account. It will state what rights each party has to use the content – most likely that they own it, and they grant you a license to use for certain purposes. It should also have an indemnification clause to protect you in the event you’re accused of violating another person’s IP rights or other legal wrong by using what the contributor provided to you.

9. Have an Influencer Contract Template. This is the contract to use when brands hire you so that the expectations on both sides are clear, and you state that you comply with FTC regulations. (You should probably have internal documents about FTC compliance as well.) Companies that hire influencers may have their own contracts that they want to use, but having your own template will help you analyze their contract to see how well it addresses your needs and concerns.

10. Create Website Terms and a Privacy Policy. These documents may need to comply with U.S. privacy laws, the Canadian Anti-Spam Legislation (CASL), and the General Data Protection Regulation (GDPR), and manage the expectations of visitors to your website. Many of the new privacy laws interfere with how many companies collect and use others’ personal information. These issues are complicated. Many people copy another content creator’s terms and privacy policy, but that could be a recipe for disaster if what you use is insufficient for your needs.

This may not be a complete or comprehensive list of legal steps to take to protect your business. It’s always best to consult a lawyer who understands the legal implications related to your business, preferably someone to specializes in business, intellectual property, and internet law. Hopefully this list gives you a place to start to evaluate your legal needs as a professional content creator or online entrepreneur.

If you liked this post and want to know more about my work, please subscribe to the Carter Law Firm newsletter where I share behind-the-scenes information and readers get exclusive access to me.