New Photographers: Signed Contracts Needed at the Start of Every Project

“He Walks Dogs” by Damian Gadal from Flickr (Creative Commons License)

I recently heard a question from a new photographer. They are new to the business and focused on building their brand and rapport with potential clients. Their question was, “Should I have a contract on hand at the beginning stages of my business?”

My response was an emphatic: “Yes!”

Photography Contracts: Every Job, Every Time

A contract is a relationship management document. It puts everyone on the same page about what each side is giving and getting and sets the expectations about how each side should behave.

I tell my photographer clients to never accept a job without a signed contract, this applies even to TFP shoots (trade for photos). Your contract should outline what the client is hiring you to do, how/when you’ll be compensated, how the client can use the images, and who owns the copyright. It should also have terms that address how problems will be resolved.

If the Prospect Balks at a Contract

If you have a prospective client who says they “don’t think a contract is necessary,” turn and run. This raises to red flags for me: either they don’t understand how the business works, or they have devious reasons for not wanting a contract that could bite you in the butt in the future.

One of the best pieces of advice I got early in my career was, “You never regret the client you didn’t take.” I have had no regrets about declining a representation when a client balks at how I do business. Every time I decline one of these clients, I feel like I’ve dodged a bullet.

Don’t Worry that Requiring a Contract will Push Clients Away

Don’t worry about being perceived as “pushy” my holding firm that a contract is required. You can be polite and respectful while say, “This is how I do business. If you don’t want to sign a contract, that’s fine, but you won’t be working with me.”

You set the rules for how you work with clients. If they balk at your contract (assuming it’s reasonable), they shouldn’t be your client. A reasonable client would expect you to require a contract. A person with any business acumen won’t want to work with you without one.

Let the prospects who don’t want contracts to self-select out. If you have problems with a client at the beginning of the relationship, it’s an indicator that they will be problematic throughout the project.

If the prospect asks for a referral to another photographer, I recommend saying, “All the reputable photographers I know won’t take on a client without a signed contract.”

It’s Cheaper and Easier to Prevent Legal Problems than to Fix Them

This has been proven time and time again in my legal career. When a client comes to me with a business dispute, one of my first questions is, “What does your contract say?” When my client doesn’t have a contract, I have to piece together the terms of their agreement from emails, text messages, and the parties’ actions. Often my client spends more just having me piece these things together than what it would have cost them to have a custom contract template made.

Additionally, in a dispute, it’s much easier to create a demand letter than references the terms the other side agreed to and back them into a corner where they have to try to defend the indefensible rather than assert what the terms of the agreement are from the assembly of bits and pieces of communications and actions that the other side can more easily debate.

Lights Camera LawsuitTM

If you need help with your photography contracts and managing client expectations, I hope you’ll check out my online course coming out later this year: “Lights, Camera, Lawsuit: The Legal Side of Professional Photography.” It will address the most common questions professional photographers face, including what terms to include in every contract template. Leading up to the release date, I’m sending weekly updates with tips about the legalities of photography. Please add yourself to this exclusive list to stay in the loop, and get first dibs on discounts!

Lawyer Responds to Photographers’ Problems

“Photo Shoot” by Cliff from Flickr (Creative Commons License)

Last week, I saw a thread in an online photography group that started with a simple question: “What problems do you face as a photographer?” After reading hundreds of the responses, I wanted to respond to some of their problems as both a lawyer and an entrepreneur:

Competition – Other Photographers Offering Half the Price

My first thought when I read this was, “There’s a good chance it’s also half the quality.” You never want to be in a race to the lowest price. Instead of worrying about price, focus on what makes you different from the competition.

If someone wants a cheap photographer to document their once in a lifetime event, like their wedding, that’s their choice. If I were facing a client who said, “I can get someone to photograph my wedding at half this price,” I hope my response would be something like, “This is your special day. You have to choose who you trust to capture these moments for you.”

Personally, I have no problem when a client self-selects out from working with me if they don’t want to pay my rate. It’s better that they decide that early and go with someone else.

This problem reminds me of a sign I saw in a tattoo parlor: “Good tattoos aren’t cheap. Cheap tattoos aren’t good.” The same is likely true for photographers.

Clients Don’t See What We’re Worth

Part of being an entrepreneur is educating prospective client about the value we bring. It’s not that skilled photographers cost so much, but they’re worth so much. Some of the ways you can do this is by having a high-quality portfolio and a stellar reputation.

Remember: You’re not just taking photos; you’re creating an experience – every interaction from the first “hello” to the final deliverable. Your ability to take and edit photos are important, but so are the way you carry yourself, how you communicate, and your creativity, work ethic, and confidence in your skills. All of those things add or detract from your value as an artist. You want to be in a position where people want to hire you, not just any photographer.

I had a similar situation when I hired the designer who created the logos for Scarlet MavenTM and Lights Camera LawsuitTM. I could have used a discount service like 99 Designs or Fiverr, but I didn’t want to entrust a stranger with this task. I wanted to work with Square Peg Creative and Dina Miller. I’d seen and loved the way she created. I was willing to pay extra for that experience, and the resulting logos that I love.

How to Tell People I’m a Proper Photographer

The best way to tell people that you’re a professional photographer is to act like one. Create a business entity, a website with a portfolio, and contract templates for your services. If you want people to take your seriously, you have to act like a professional.

Speaking of Contracts

Contracts are relationship management documents. Once a client signs the contract, they are bound by its terms. Whenever there’s a problem, you can refer back to the contract and the terms they already agreed to. This is where you can put information like,

  • The deposit is non-refundable.
  • The photographer chooses the best images to show client. The client will not get raw images.
  • There’s no guarantee you’ll capture every image the client was hoping for.
  • The client is not allowed to edit the final images. This includes adding filters or stickers or cropping the images.

There’s a video I recommend to almost every entrepreneur called F*ck You, Pay Me, that features a graphic designer and his lawyer talking about how they use contracts to make sure the client pays per the contract’s terms. The suggestions work for many types of professional creatives.

Clients with High Expectations and Low Budgets

While many people don’t like talking about money, it is a topic you want to discuss early in the vetting process by either giving the prospective client your price list or asking about their budget. Don’t be afraid to be frank with clients who have expectations that are way beyond what they can afford. Tell them what they can afford based on their budget, as well as what you could do if they are willing to pay more so they can make an educated decision about what they want.

Clients Who Try to Negotiate on Price

In the photographer-client relationship, they are hiring you. You get to decide what is and is not negotiable in your contract. If your rates are not negotiable, be clear about that the first time they ask.

In my practice, I hand pick who are my pro bono clients and who gets a discount. That’s my call, not the other way around.

Here’s a tip I saw from another photographer: Make your prices all-inclusive. Don’t list separate prices for shooting and editing, because it opens the door for clients to try to haggle on one or the other.

Companies that Want You to Work for Free or Magazines that Want to Use Images for Free

Oh, it’s so cute when people want you to work for “exposure.” You get to decide how you respond to those requests. Here are some of my favorites:

  • Exposure is not a currency that my landlord accepts.
  • I can’t pay my mortgage with exposure.
  • People die of exposure.

Chasing Payments

Ideally, you want to create a photographer-client relationship where it’s easier to comply with the terms of the contract and pay on time, than not. Many photographers charge a non-refundable deposit to book a shoot or event and require the balance to be paid in by the day of the shoot or event. At the latest, I don’t recommend a photographer provide proofs unless they’ve been paid for the shoot.

You also want to have terms in your contract about cancelled appointments, late payments, and non-payments, so that you set yourself up to get paid what you’re owed in a timely manner.

Are You Free Next Week?

You can put the information about how far in advance a prospective client should expect to book you near your contact information or in your FAQs if you have them.  

People Assuming You will Photoshop them Perfect

This problem reminds me of Christian Siriano on Project Runway when he said, “I’m not a miracle worker, lady. I can’t make you have an ass!”

In talking with your client, set some expectations about what Photoshop can and can’t do. Assume your client doesn’t know anything about photography, unless they are a professional photographer themselves. You can educate your clients by showing them before and after images so they can see the type of edits you’ll be doing for them.

It’s ok to have fun with it, if that’s your style, by saying things like, “If you’re 5’2”, I can’t make you 5’10”,” or “If you have a ‘dad bod,’ I can’t transform you into Thor.” On the softer, more realistic side, remind your client that it’s your job to capture them looking their best, not like someone else.

Bonus Tips from my Experience as Model: Posing

Several people said they had problems with posing models or giving direction. As a model, my response is, “Don’t be afraid to try.” You’re the one behind the camera. I can’t see how I look.

If you give a model a pose and it doesn’t create a good image, try something else. I won’t know if you didn’t get the shot you wanted. I’ll think you have lots of ideas.

It’s ok to think out loud and say things such as, “I like how this light is hitting your eyes, let’s try this.”

I’ve you are afraid you won’t remember the ideas you wanted to try from other images, bring notes to the shoot. It shows you’re prepared, and thinking about what types of images might be best for me.

Learning how to pose models and give direction is something you develop over time, with practice, and watching others. Unless you’re doing some extreme work, no one is going to die. And don’t forget – I can’t see how I look, so as far as I know, whatever you’re trying is brilliant.

Lights Camera LawsuitTM

If you’re looking for help with the business or legal side of being a photographer, I hope you’ll check out my online course coming out later this year: “Lights, Camera, Lawsuit: The Legal Side of Professional Photography.” It will address the most common problems professional photographers face, including contracts, copyright, and managing client expectations. Please add yourself to this exclusive list if you want to stay in the loop, and get additional helpful information leading up to the release.

How to Give a Discount on your Photography Services without Discounting your Value

The Belly Dancer with the Fans” by mmockingbird from Flickr (Creative Commons License)

Sometimes photographers, like all service providers, want to provide a discount for their services. Perhaps it’s for a friend, someone you’ve always wanted to work with, or an organization you know can’t afford you and you want to help.

Nothing Wrong with a Discount

There is nothing wrong with offering a discount for your photography services, whether it’s a special one-off or a promotion that’s available to any client.

The challenge is you don’t want to cheapen the perceived value you provide. When a person buys an item at a cheap price, they may have lower expectations about it and will perceive it as less valuable than a similar product that performs the same function but costs twice as much. You don’t want your clients to discount the value you’re giving them, even when they get it at a discounted price.   

Have you noticed that it’s often the clients who are getting the biggest discounts who complain the most? I made that mistake once. I quoted someone an exceptionally low flat fee to do their contract because I thought it would be an easy project. The nitpicked so much and requested so many changes, that by the time it was done, the amount I made per hour of work was laughable. (This was also the client who taught me to put a cap on the number of edits I’d do on a flat fee project. If they wanted more edits after that, they had to pay hourly.)

Always Show a Photography Client your Value

Even when you give a client a discount, always include your standard price and then the discount. Being a professional photographer is two jobs in one – you’re an artist and an entrepreneur. The entrepreneur’s job includes educating clients and prospects what you are worth. Photography clients are not just paying for your time, but also your talents. Remind them about the value you bring to the table, regardless of what they’re paying.

This tactic is not offensive.  You see this when you buy things online. The website always starts by posting the price and tells you how much of a discount they’re giving you and the price you’re getting.

How to Write an Invoice or Contract with a Discount

This is how I’d write an invoice or payment section of a photography contract that includes a discount:

Sitting Fee:                       $200.00

I-Like-You Discount:           -$75.00

Total Sitting Fee:               $125.00

You get to choose what you’re going to call your discounts. I encourage my clients to be creative and include their personality in their contracts, but you have to decide what works for you.

Lights Camera LawsuitTM

If you need help with your photography contracts and managing client expectations, I hope you’ll check out my online course coming out later this year: “Lights, Camera, Lawsuit: The Legal Side of Professional Photography.” It will address the most common questions professional photographers face, including how to explain these concepts in plain English. Leading up to the release date, I’m sending weekly updates with tips about the legalities of photography. Please add yourself to this exclusive list if you want to stay in the loop. (Psst! People on this list also get first dibs on discounts!)

Clarify What Your Photography Client is Buying: Prints vs Digital License

“Shooting the Dress” by Garry Knight from Flickr (Creative Commons License)

Professional portrait photographers generally need at least two contracts when working with a client: one for the sitting and one for the deliverables. For the latter, make sure the client is crystal clear about what they are, and equally important, what they are not buying. Having clarity on the front end will prevents problems on the back end.

Assume Clients Don’t Understand Copyright

Part of your job as a professional photographer is to educate your client about the basics of copyright and how it applies to images you’ve been hired to create. Many people assume that they are allowed to take a print, scan it, and share online or via email.

In my pre-lawyer life, that’s what I thought. I spent plenty of time in the computer lab during my undergrad scanning photos. There was even a bulletin board dedicated to the photos that people left in the machine.

This is still an issue for Joe Average people. Here’s a real question that recently came across my screen: I hired a photographer to take family pictures. I want to share them online and with extended family. The photographer says I can’t do that. Why?

I suspect this person bought prints and not a digital license, or they have a license but it doesn’t include an allowance to distribute the images.

As a risk-adverse lawyer, I would put specific verbiage in the contract that states what the client can and can’t do with the photos, including that only the digital version the photographer provides can be used to share the images with family and friends, probably in bold print.

This serves two purposes:

  1. It protects your copyright, and
  2. It maintains the quality of your work.

It’s also a good idea to include the information about your socials so they can tag you. (Good clients give credit their photographer when posting images online, even if they’re not required to.)

What the Client gets with Prints

When a client buys prints, they are buying the tangible object – the picture on whatever medium it was printed. They are buying the thing. They are not getting the copyright right or any copyright rights (unless that’s part of the contract they signed).

The limits of what someone can do with a print are similar to what they can do if they bought a book. They can display it, sell it, give it away, destroy it, etc. What they can’t do is make copies of it.

Scanning a print is making a copy. So is taking a photo of the photo.

I’ve seen people do this at amusement parks. They don’t want to buy the photo the park took of them on the rollercoaster, so they take a photo of the screen where the image is displayed – so they take photo of the photo. When I’ve seen this happen, the teenage clerk usually says, “We’re not supposed to let people do that.” Now you know why. 

What the Client gets with a Digital License

What a client can do with a digital license depends on the limits within the license itself.

Whoever owns a copyright has the exclusive right to control if and how the work is copied, distributed, displayed, performed, and what derivative works can be made from it. If I were writing a license for a photographer, I’d address all five of these rights – including “perform,” even though that’s not a verb we typically use in regards to photographs, but I’d rather be thorough.

Most of the time, the photography licenses I draft are for a non-exclusive, perpetual, worldwide license. It also addresses whether the licensee is allowed to use the images for commercial use. Sometimes the photographer requests additional provisions, like one that says the licensee isn’t allowed to alter the images, which may include cropping.

Following the license provision, I often add a sentence that states all other uses of the images must be approved by the photographer in advance.

Solution: All Print Packages Include a Digital License

One way to address this issue to require clients to purchase a digital license when they’re purchasing prints. The client won’t have to scan any images if they already have digital versions.

When you first meet with a client to discuss their needs, ask them about what they want to do with the final images, including how they want to show them to others. If you hear a client talking about how they can’t wait to share the photo with family/friends – clarify what they mean and make sure purchase a package that suits their needs.

Lights Camera LawsuitTM

If you need help with your photography contracts and managing client expectations, I hope you’ll check out my online course coming out later this year: “Lights, Camera, Lawsuit: The Legal Side of Professional Photography.” It will address the most common questions professional photographers face, including how to explain these concepts in plain English. Leading up to the release date, I’m sending weekly updates with tips about the legalities of photography. Please add yourself to this exclusive list if you want to stay in the loop. (Note: This venture is separate from my law practice, and this list is completely independent from the Carter Law newsletter.)

How to Respond When Someone Steals Your Photo

Running with the Seagulls by Ed Schipul from Flickr (Creative Commons License)

Photographers need to be mindful of the possibility that some people may use their photos without permission. People will pull images to use on their website and social media posts. Additionally, there are people who think they have rights to a photo merely because they’re in it. I’ve even heard of hair and makeup artists who take photos from the shoots they have worked on to use them in their portfolio.

This issue is compounded by the fact that there is inaccurate information about photo use on the internet. Some sources assert that you can use any photo you find on the internet as long as you give an attribution and a link to the original. They think they’re giving you free publicity, but what they may be doing is committing copyright infringement and telling you about it.

Start with the End in Mind

When I work with clients who believe their copyright has been violated, one of the first question I ask is,

How do you want this to end?

Knowing what the client wants as a result of my work tells me what avenue for recourse they’re interested in pursuing.

To maximize the likelihood of achieving your desired outcome, it’s best to decide before your photos are stolen how you want to respond to the alleged infringer so you can be prepared in advance for when it happens.

Always Respond When Someone Uses Your Photo Without Permission

You don’t set the precedent that people can use your photos without a license. If you let others use your work and then you want to assert your rights against another infringer, the infringer could point to your past behavior and argue that since you’ve allowed others to use your images without repercussions, that this new infringer should be treated the same.

(This is why you hear about companies sending strongly worded cease and desist letters to minor infringers. They have an obligation to protect their intellectual property.)

There are five ways you can respond when someone steals your photo:

Option #1: Grant Permission

If you’re ok with someone’s use of your image, you can grant them permission after the fact. It can be something simple like

Hi there. I noticed you’re using my photo for XYZ. I’m ok with uses like this, but in the future, you need to ask my permission in advance. I grant you permission for this use.

Option #2: Cease and Desist Letter

This is a letter from you (or your lawyer) to the suspected infringer that informs them of the copyright rights they violated, directs them to remove the image by a specified date, and tells them what you’ll do if they don’t comply. Be ready to follow through on whatever you threaten/promise in your letter, or you’ll lose credibility.

These are sometimes referred to as the “nastygram,” especially when it’s written by a lawyer and the client’s goal is to put the fear of god in the person so they comply. There is no rule that says you can’t send a letter that says,

I love that you love my photo, but you need to remove it by . . .

Option #3: DMCA Takedown Notice

DMCA stands for Digital Millennium Copyright Act. This option is only available in situations where your photo and the infringement of it are both on the internet. Instead of sending a cease and desist letter to the person who stole your photo, you send a takedown notice to the company that hosts the website where the infringement is occurring. Some social media platforms have a form on their site for submitting a takedown notice with designated spaces for all the information you’re required to include in a DMCA takedown.

Option #4: Send a Bill and a License

There is at least one photo licensing company that is notorious for doing this, but any photographer can send (or have their lawyer send) a letter to the suspected infringer that says,

By using my photo, you’ve agreed to my licensing terms. Here’s a copy of the license and your bill!

If you want to use this option, it’s ideal if you have your licensing terms or at least information about licensing on your website.

Option #5: Sue for Copyright Infringement

This option requires the most work in advance compared to the other options because you must register the photo’s copyright with the U.S. Copyright Office in order to be eligible to sue for infringement. There are time constraints in which you have to register you work in to be eligible for statutory damages, including attorneys’ fees. Additionally, your photo has to be stolen by someone who can afford to pay the damages, otherwise you may never collect (and you’ll likely have to pay for your attorney yourself).

If registered your photo too late, you can still sue, but you can only get your actual damages, and you have to pay your attorneys’ fees. Most of the time, in this situation, it’s not worth it to sue because you’ll spend more on your attorney than what you’d get in damages from the court.

What’s the Right Option to Protect Your Photography?

You have to make that decision yourself. Decide in advance how you want to respond when someone steals your photo and plan accordingly.

Your strategy for responding to suspected copyright infringement can include more than one of these options – such as sending a cease and desist letter yourself and if that doesn’t work, then have your attorney send one. Some people are more motivated to comply when they see the law firm’s letterhead.

Regardless of your strategy, it’s best to speak with your attorney in advance and consult them when dealing with someone who’s using your photos without permission. There have been many times that I’ve written the cease and desist letter for my client to send that included the sentence,

I hope we can resolve this without having to get lawyers involved.

Lights Camera Lawsuit

I’m creating an online course called “Lights, Camera, Lawsuit: The Legal Side of Professional Photography,” that will address the legal issues most pertinent to professional photographers, including hours of lessons about copyright. Leading up to the release date, I’m sending weekly updates with tips about the legalities of photography. Please add yourself to this exclusive list if you want to stay in the loop. (Note: This venture is separate from my law practice, and this list is completely independent from the Carter Law newsletter.)

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.)

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.

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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.

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If You’re Going to “Wing It” as an Entrepreneur

“Yay!!” by Subharnab Majumdar from Flickr (Creative Commons License)

Plenty of entrepreneurs start out as a person or two, a business idea, and a shoestring budget. They know their craft but have limited or not experience starting or running a business. They don’t know what they don’t know – and that’s what gets them into trouble.

Many entrepreneurs employ the “we’ll learn as we go” approach to operating a business. Often times these are smart people, but if they get too focused on doing their business that they don’t take care of business within their operation, it can lead to costly mistakes: thousands of dollars in legal expenses and painful heartache to try to fix a problem that was completely avoidable.

Real-Life Facepalm Moments
I’ve had countless times where a business owner comes to me for help and I cringe and think, “We could have helped you avoid this if you had come to us sooner.” This is just a sample of my facepalm moments as a lawyer:

KAWS “At This Time” Sculpture by Guilhem Vellut from Flickr (Creative Commons License)

  • Owners who don’t create a business entity: put their personal assets at risk if the business gets sued;
  • LLC with multiple owners and no operating agreement: painful business “divorce” when things didn’t work out between owners;
  • Filing a trademark application with the USPTO that wasn’t trademarkable: the application might have had a chance if the description of the products and services was written more effectively;
  • Not filing a trademark and your competition files a trademark application that’s confusingly similar to or the same as yours: costly to make a claim against them and it may not be successful, which could force you to rebrand even though you were using it first;
  • Flawed customer contracts: doesn’t fully protect the company’s interests or address all likely contingencies;
  • Hiring a third-party contractor without a contract: if the person is hired to create an original work for the company, the company won’t own the copyright in what they hired the person to create and may have to pay to acquire it;
  • Working without a contract: so many problems. Whenever I get a call about a business deal gone bad, my first question is usually, “What does your contract say?” (Ideally, you want to be in a situation where, if the other side doesn’t perform as you agreed you can essentially respond with, “F*ck you, pay me.”)

If You’re Going to “Wing It”
If you are starting a business, my unsolicited advice is “Do your homework.” Invest the time to learn what goes into running your business and figure out what you don’t know. Reach out to established entrepreneurs to ask for their advice and avail yourself to resources in your community. In Arizona, we have dozens of these organizations like Arizona Small Business Association, Local First Arizona, and SCORE.

Even if you don’t think you can afford it, look into hiring a business and intellectual property lawyer for an hour. Bring them your ideas of what you want to do, and ask for their recommendations on how to make it happen. A good lawyer will respect your budget and tell you what you can do yourself and what you should hire a lawyer do for you. They can also recommendations resources to help you based on their experiences helping others.

If I’ve learned one thing as a lawyer it is that it’s easier and cheaper to prevent problems than to fix them.

True Story
Years ago, I worked with a new company where the owners hired me to create their operating agreement. I asked a lot of questions about things like intellectual property rights, compensation, and worst-case scenarios (e.g. disability of an owner) to create custom provisions for this document.

A few years later, the owners realized it wasn’t working out between then and decided to part ways. Their operating agreement dictated how they would address this situation, and they hired us again to revise the agreement to account for the exit of one of the owners. The process was professional, respectful, and cost-effective. I’m sure there were hurt feelings on both sides, but having this operating agreement helped the owners mange them and made for a smooth transition.

If you want more information about the legal dos and don’ts of starting and running a business, you can send me an email (Note: I can’t give advice to non-clients), and I maintain a mailing list where I share my thoughts about being a lawyer/entrepreneur, updates about projects I’m working on, upcoming speaking engagements, and I may provide information about products, services, and discounts. You can also connect with me on TwitterFacebookYouTube, or LinkedIn.

Model Release and Regret

“Subway Ballet” by J Stimp from Flickr (Creative Commons License)

Recently, I received an email from a photographer (not my client) who had a question about the validity of model releases. As I understood the situation, he hired a model (over age 18) to do a photoshoot at his studio. The model was photographed nude for at least part of the shoot. The model signed a model release and was paid for her modeling services.

After the photoshoot, the photographer censored some of the images to comply with Facebook’s rules and posted them online.  The model saw the images and was upset. The photographer asked me if the model had any authority to force him to take the images down.

The Rules of Model Releases
Model releases are standard in the photography world. In most cases, the photographer owns the copyright in their work from the moment the photo is created, not the person in the photo, and the model owns the right to publicize their own image.

The model release transfers the model’s right to publicity in those images to the photographer, which allows the photographer to use the images per the terms of the release. Usually, when I write a model release or a model release template, the model gives the photographer permission to use the images in any way and for any purpose, without restriction.

In general, once the model release is signed, the model’s given up their rights. If the model later regrets signing it, there may be nothing they can do to “unring that bell” unless the photographer is willing to negotiate another agreement – such as a copyright assignment where the model purchases the copyright rights in the images from the photographer.

Think Before You Sign
If you are a model, read the model release carefully. Never sign the release without reading and understanding it. Many of them allow for unfettered use by the photographer, including the right to license the images to others. Treat the images as if they are going to end up all over the internet, on billboards, on products or marketing campaigns you hate. Chances are, that’s not going to happen, but it could.

I write not just as a lawyer, but also a model myself. On a number of occasions, I have written and signed my own model release. Models may give up substantial rights when signing these documents, so it’s not a decision to make lightly.

What Could Invalidate a Model Release
Even if the model release was written by a lawyer and appears to valid on its face, there are situations where a model release might be invalid due to the circumstances surrounding the shoot:

  • The model was minor (Depending on your state, minors may not be able to sign contracts or they can withdraw their consent upon reaching the age of majority.)
  • The model was an adult but lacked the capacity to enter into a legally binding contract. (These people usually have an appointed guardian to sign for them.)
  • The model was intoxicated. (In general, intoxicated people can’t enter into valid contracts.)
  • The model was forced to sign the contract under duress. (You can’t get a valid contract if you use threats or force to get someone to sign it.)

There can also be instances where the photo in question was taken outside the scope of the model release and so the model release does not apply.

I get questions every day about photography, image rights, and copyright. If you are a photographer or model (or aspiring to be one), it’s imperative that you understand these issues. Many disputes can be avoided with well-written contracts and accurate information. I’m constantly doing work in this area, so if you want to keep up with what I’m doing or if you need help, you can contact me directly or check out the other posts and videos I’ve done on the legal side of photography. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.