What if Model Dies Without Signing a Model Release

Strange Photosession Outside the National Theatre, Prague by Staffan Cederborg from Flickr (Creative Commons License)

A photographer recently asked if they could use images if there was no model release signed when the images were taken, and the model has since passed away. Does a persons’ right of publicity survive death?

Anyone who knows me knows the answer to every legal question starts with, “It depends.”

Right of Publicity is a State-Level Law

A person has a right to control how their image is used for commercial purposes. These rights are governed by state-level laws. Unless there’s a contract that specifies otherwise, the state where the images were taken will likely be the state law that applies to your situation.

However, if you use the images without a model release, and the surviving heirs object, they may claim that the state laws where the model resided apply.

The Professional Photographers of America (PPA) created a white paper called Model Release that includes a list of the state statutes that pertain to model releases. Please note, according to the white paper, this list of statutes was accurate as of 2010, so it is best to verify that any laws that are applicable to you are still accurate.

In addition to statutes, there may be state-level common laws that pertain to model releases as well. These are based on case law that has come through the courts. If you need help researching case law, you should visit your local law library or consult a lawyer.

The Model May Have Other Rights

If the model was a celebrity or was a public figure, their name, image, likeness may be protected by other laws, such as trademark and/or copyright.

If the model owned these trademarks and/or copyright at the time of their death, these things would be passed on to others as stated in the model’s will or by statute if the model died without a will.

Websites May Require a Model Release

Even if you are not required to have a model release to use the images of the now-deceased model for commercial purposes – i.e., selling prints, licensing the images, or using the images in your portfolio for marketing purposes – there may be other restrictions on your ability to use the images, depending on where you want to display them.

There are online platforms where photographers can showcase their work that require a model release for every identifiable person in the image. If an identifiable person is deceased, the photographer must get a model release signed by the decedent’s heirs or next of kin.

Always Get a Model Release

Of course, all of these issues can be avoided by having the model sign a model release at the time of the photo shoot.

Lights Camera Lawsuit

If you need help with your photography business including model releases, other 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. Please add yourself to this exclusive list to stay in the loop and get first dibs on discounts!

CCPA: Worst-Case Scenarios

https://www.flickr.com/photos/oatsy40/34767677374/
“Danger” by oatsy40 from Flickr (Creative Commons License)

The new California Consumer Privacy Act went into effect on January 1, 2020. I’ve received a handful of emails and seen some updates from businesses informing me that their privacy policies have changed, but not as many as I expected. I hope the businesses who are required to comply with this law know the risk they take if opt not to comply with this new privacy law.

What if There’s a Data Breach

Like the General Data Protection Regulation in the European Union (GDPR), you have to notify the impacted people if you have a data breach. If you have a data breach impacting personal information, you must notify the individuals “in the most expedient time possible and without unreasonable delay.” In either case, If the breach causes you to notify at least 500 California residents, you must also notify the California Attorney General’s Office.

If you are in a position where you are entrusted with data that you do not own or license, such as if you are a data storage business, and you have a breach, you must notify the business or person that hired you about the breach.

CCPA Penalties

The CCPA is unique in that it is the first privacy law to allow a private right of action. An individual is allowed to sue a company for failing to comply with the CCPA, $100-$750 per violation or their actual damages, whichever is more. This right is limited, however, to situations where there’s unauthorized access, theft, or disclosure of non-encrypted or non-redacted personal information because the business failed to use reasonable security measures. That means if the business did everything right and there was still a data breach, an impacted person can’t sue for their damages.

In addition to individuals suing for damages under the CCPA, the California Attorney General may fine a business for failing to comply with this law, Up to $7,500 per violation.

My CCPA Cheat Sheet

Complying with CCPA is no easy task, especially if your business must comply with CCPA and GDPR. I created a CCPA Cheat Sheet that I use with my clients and update it as more information and guidelines are provided about this new law. I give my cheat sheet out for free to anyone who asks. I will not add you to my email list. (I will invite you to add yourself, but it’s completely voluntary.) If you want a copy, please send me an email.

Your Rights Under CCPA

“Privacy” by doegox from Flickr (Creative Commons License)

The California Consumer Protection Act (CCPA) went into effect today (January 1, 2020)! California residents just got a lot more rights under this law, at least from the businesses that have to comply with it.

(If your company makes less than $25 million per year and have contact information for less than 50,000 California people, devices and households; there’s a good chance you don’t have to comply with this law.)

Your CCPA Rights

Under the CCPA, California residents have the following six rights:

1. The right to know whether your personal information is being collected – and the purpose it’s being used for.

2. The right to know what personal information is being collected about you – upon verifiable request.*

3. The right to request the specific categories of personal information being collected and the sources from which they were collected, the business or commercial purpose for collecting the information, and the categories of third parties with which the business shares information.

4. The right to opt-out of the sale of your personal information. (Also, a third party cannot sell your personal information unless you are given specific notice and the opportunity to opt out.)

5. The right to delete your personal information – upon verifiable request.* This includes the deletion of the personal information the business has, and it must direct service providers to do the same. The law states nine reasons why a business may decline such a request, including to provide you with the goods and/or services you requested.

6. The right to not be discriminated against if you opt-out. A business can’t charge different rates or provide different level of service solely because you won’t allow the sale of your information. However, a business can provide a different price or quality of service if the difference is reasonably related to the value provided to you by your personal info. It’s ok for a business to give financial incentive for you to allow the collection of your personal information.

* The CCPA states that the California Attorney General may provide guidance about what constitutes a verifiable request.

What about Rewards/Loyalty Programs?

The sixth right would have created a problem for rewards and loyalty programs, so the legislature created an exception for these. A business can charge different rates or provide a different level of service if it is part of its rewards/loyalty program without being at risk of price discrimination in violation of CCPA.

Requesting Your Information

Under CCPA, you may submit two requests within a 12-month period that a business give you a copy of the personal information it has for you, assuming you’re a Californian. (A business may do this for all its customers, but it’s not required to do so.) The business must provide this information at no charge, by mail or electronically, within 45 days. If more time is needed, the business must inform you within the first 45 days, that it may take up to 90 days to provide you a copy of your information.

Required Notices Under CCPA

Businesses must provide notice at or before the point of collecting your personal information under CCPA. If it’s being collected online, this will likely occur in the business’ privacy policy, with notice on the page where the information is requested.

(The General Data Protection Regulation (GDPR) in the European Union requires a business to prove it received consent to collect your information.  To be compliant with this law too, the business should be a box you have to check that you agree to voluntarily share your information with it.)

A CCPA-compliant notice must include:

  • What categories of personal info are collected and how it’s used by the business;
  • What categories of personal info are collected, disclosed, or sold; and that
  • You have the right to opt-out of having your personal info sold.

The business is also required to have a “Do Not Sell My Personal Information” conspicuously on the its homepage and privacy policy with a link to page where you can opt-out. The business cannot ask you to opt-in again for at least 12 months. 

My CCPA Cheat Sheet

Complying with CCPA is no easy task, especially if your business must comply with CCPA and GDPR. I created a CCPA Cheat Sheet that I use with my clients and update it as more information and guidelines are provided about this new law. I give my cheat sheet out for free to anyone who asks. I will not add you to my email list. (I will invite you to add yourself, but it’s completely voluntary.) If you want a copy, please send me an email.

Do You Have to Comply with CCPA?

“Please!” by Josh Hallett from Flickr (Creative Commons License)

The California Consumer Privacy Act (CCPA) goes into effect on January 1, 2020. This will have a substantial impact on companies that collect and use consumers’ personal information.

I would not be surprised if the CCPA was direct response to the Facebook-Cambridge Analytica fiasco. Every time I read a provision of CCPA that seems strange, I consider how the law will impact companies like Facebook, Google, and Amazon, and then the provision makes sense.

Who Must Comply with CCPA

Businesses must comply with the CCPA. According to this law, a business is

  • A for-profit business,
  • That sells goods or services to California (CA) residents or people domiciled in CA (even if the business is not physically in CA), and
  • Fit at least one of the following three criteria:
  1. Get half their annual revenue from selling consumers’ personal information;
  2. Possess the personal information of more than 50,000 California consumers, households, or devices; or
  3. Have $25,000,000 or more in annual revenue.

This may help you determine if you have to comply with this law.

Non-profit businesses are except from CCPA, as are businesses in industries where consumer privacy is regulated by the Gramm-Leach Bliley Act, the Fair Credit Reporting Act, FERPA, and/or HIPPA.

“Consumer”

Under this law, a consumer is a natural person, aka a human, that lives or resides in California.

“Personal Information”

This law has an expansive definition of personal information that “identifies, relates to, describes, is capable of being associated with, or could be reasonably linked, directly or indirectly, with a particular CA resident or household.” This includes a consumer’s real name; alias; address; unique personal identifier; IP address; and email address. It also extends to other identifiers, including account names; social security and/or tax identification number; driver’s license number; passport number; military identification number; unique biometric data; and any unique identification number issued on a government document.

Not just these, it also includes records of personal property or services a person has purchased or considered; purchasing histories or tendencies; browsing history; geolocation data; professional or employment information; and/or education information.

This list is massive. Basically, it’s any information that identifies or could identify a natural person.

There are a few exceptions to this definition: aggregate data, deidentified data, and information that is lawfully made available in federal, state, or local government records are not personal information. Neither is personal information obtained from employees, contractors, and job applicants.

“Sale of Personal Information”

The definition for the sale personal information includes “selling, renting, disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing, or by electronic or other means.” Essentially, it includes any way a company might share a consumer’s personal information, even if you don’t make money from it.

Data Broker Registration

The CCPA requires any business that knowingly collects and sells to third parties the personal information of a consumer with whom the business does not have a direct relationship to register as a data broker with the CA Attorney General’s (“AG’s”) Office by January 31, 2020 and pay a registration fee. If you don’t register, the penalty could be up to $100/day plus any costs in the action against you brought by the AG’s Office.

My CCPA Cheat Sheet

I created a CCPA Cheat Sheet that I use with my clients and update it as more information and guidelines are provided about this new law. I give my cheat sheet out for free to anyone who asks. I will not add you to my email list. (I will invite you to add yourself, but it’s completely voluntary.) If you want a copy, please send me an email.

How to Use the Attorney General to Go After Bad Clients

“Stairs to Subway” by Giuseppe Milo from Flickr (Creative Commons License)

One of the frustrations I hear about from entrepreneurs is getting stiffed – either they paid a company to do a job and they didn’t perform, or they did a project or task for a client and they didn’t pay. In many of these situations, the amount in question is low enough that it’s not worth it to hire a lawyer or even put in the time and effort to take the other side to small claims court.

Even if a client hires us to send a demand letter, there’s always the risk that the other side won’t comply, and then they’ll be in the same position as before, but now they have our bill to pay too.

If the client in question is a business, there may be options to go after them through the government at no cost to you.

Attorney General Consumer Complaints

Check the Attorney General’s (AG’s) Office website for the state where your non-performing client lives (not where you live if you live in a different state). For every state that I’ve checked for a client to date, the AG’s Office has had a division or at least a page on their website for consumer complaints. Typically, it’s a form where you provide your contact information, a summary of the situation, and the remedy you want.

If the AG’s Office thinks your complaint has merit, they’ll investigate the situation, including them sending a copy of your complaint to the company and with a firm deadline for providing a response. Even if your client didn’t respond to a demand letter from you or your lawyer, they will likely be more inclined to respond to the AG’s Office.

In my experience, companies are motivated to resolve these matters quickly and avoid the risk of having fraud charges filed against them. This may result in the client paying you, performing as they were supposed to, or giving you your money back.

Pros and Cons of Going Through the AG’s Office

Pro: It’s free to file a complaint. You don’t need a lawyer to do it; however, it may be prudent to have a lawyer help you fill out the form to make sure you’re presenting the most compelling argument in light of the applicable laws. Your lawyer may know the key phrases to use to convince the AG’s Office to take your complaint more seriously than if you’d written it by yourself.

Con: You have less control over the situation. If the AG’s Office pursues the matter and files a complaint in court against your client, you will not be the plaintiff. The state will be the plaintiff. You will be less involved in the negotiations and settlement (assuming there is one).

Pro: It’s less work for you. If you were pursuing this matter directly against your client, such as filing a lawsuit, there could be meetings and calls with you lawyers, documents to review, and other work where you would need to be involved. Or if you were doing it on your own and going to small claims court, you would still have to prepare your Complaint (lawsuit), file it, get the other person served, and show up for your court date.

The AG’s Consumer Complaint is the Hidden Alternative

Most people I’ve spoken with about these types of business challenges, don’t know about Consumer Complaints. I’ve suggested it at least three times in the last two weeks to friends and clients alike. I can’t say this option is available in every state, but it’s worth investigating if you have a non-performing client that’s a business.

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My Blatantly Honest Lawyer Bio

In response to the infamous Venn diagram by Matthew Homann that suggests that most of the information lawyers put on their bios does not answer prospective clients’ questions, I asked my lawyer and non-lawyer friends what information they wanted to see.

Their responses inspired me to write the most blatantly honest bio I could for myself:

Ruth B. Carter

Of Counsel (legalese for “independent contractor”)

Practicing law since 2012

Law School: Arizona State University

Other Degrees: Oregon State University – Honors Bachelor of Science in Psychology, Chemistry Minor; Master of Science in Counseling

Email: rcarter@venjuris.com

Practice Areas: Intellectual Property, Internet Law, Business Law, Litigation

Current Rate: $275/hour (as of Sept. 8, 2019). Flat fees are available on certain non-adversarial projects, like submitting a trademark application.

What I Am Really Good At:

  • Persuasive Writing – like nasty-grams and court filings
  • Contracts, including terms of service and privacy policies – I use my past work as guidance
  • USPTO Trademark Applications – including keeping you informed throughout the process, even when the update is that there is no update
  • Explaining how the law works in plain English

Have I Worked on Cases Exactly Like Yours?

Please email me a summary of your situation, and I’ll let you know. If I’ve blogged or created a video about your type of legal problem, I’ve probably worked on a similar case.

Will I Work my Ass Off for You?

Yes.

Do I Take Cases on Contingency?

No.

What About for Partial Ownership of Your Startup?

Absolutely not.

Can You Have Payment Plan?

Officially, no.  In reality, probably yes.

I get that legal work is expensive, and not everyone has thousands of dollars in their rainy day fund. In general, I don’t mind if clients pay me over time as long as they’re making consistent payments every month. The partners at the firm aren’t a fan of this, but they don’t make a fuss if you’re paying your balance down every month. You must pay your filing fees before I will file anything on your behalf.

Few things make me feel more disrespected than clients who ghost me in paying their bill when I’ve worked my ass off for them. Additionally, I’m in an eat-what-you-kill environment. My income is directly related to my clients paying me for my work. I do not have a guaranteed salary.

What do I Like about Being a Lawyer?

I get to work on challenging projects, and I get to help people in a way that they often can’t do for themselves. The areas of IP and internet law are constantly evolving, and the law, at best, is barely keeping up with technology.

How Long Do I Take to Respond to Emails?

My goal is to respond to emails within 24 hours, 48 hours if I’m super busy. If you haven’t heard back within 72 hours, please ping me again. Your message may have gotten buried in my inbox.

Can You Call Me?

Unless I’ve told you to call, please don’t. My outgoing message says don’t leave a voicemail. Send me an email instead. If you call when I’m not expecting it, I probably won’t pick up, and here’s why:

When I’m doing client work, I want to give the client my undivided attention. If you make my phone light up (I turned the ringer off years ago), you will distract me, and it will take me that much longer to get my focus back. Ditto for the blinking you-have-a-message light, which will turn on even if you don’t leave a message. This is the same level of attention you will get when I’m working on your case.

Am I an Asshole?

No. However, I regularly say that I’m not a nice person; I occasionally do nice things.

Will I Call You Out When You’re Wrong?

Of course. That’s my job. I will listen and validate your perspective, and then tell you how it really is. Sometimes the law doesn’t make sense.

Do People You Respect Like Me?

I hope so, but you’d have to ask them. About half of my clients find me through word-of-mouth referrals. You can always look up my recommendations on LinkedIn.

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!

Photographer Disputes: What Happens If You Don’t Deliver

https://www.flickr.com/photos/76377775@N05/8560939745
Las Fallas Valencia Spain Angry Woman” by Keith Ellwood from Flickr (Creative Commons License)

As I was researching photographers’ legal questions, I stumbled onto a question posted by an upset client: “The photographer hasn’t given me my photos. It’s been six months. What can I do about that?”

Whoa! That sounds exceptionally bad. I’m curious how complex this project was and when the photographer said they’d deliver images to the client.

I don’t know the circumstances regarding this person’s situation, but here’s what could happen if a client is unsatisfied with your work, or worse, you fail to deliver as promised.

Check the Contract’s Dispute Resolution Provision

Whenever anyone comes to me with a business dispute, like “They didn’t pay me,” or “I didn’t get what I paid for,” the first question I ask is:

What does your contract say?

Your photography contract should have a dispute resolution provision that states how disputes are going to be resolved, where it’s going to be resolved, and which state law governs the agreement.

One of the most common dispute resolution clauses I put in photography contracts says if there’s a dispute, the parties will try, in good faith, to resolve the matter within 30 days. If that doesn’t resolve the matter, then the parties agree to resolve the matter is a court located in Maricopa County, Arizona, and the agreement is governed by Arizona law. (I recommend Maricopa County and Arizona law because that’s where I’m located. You don’t want to pay for your lawyer’s travel expenses if you don’t have to.) I usually include a clause that says the losing party must pay the prevailing party’s attorneys’ fees and costs.

Regardless of what the contract states about resolving disputes, my first step in most disputes is sending a demand letter that puts the other side on notice that further legal recourse will be sought. This letter lets the other side know that the offended party is serious and willing to fight, and it gives them a chance to resolve the matter before it will be taken to the next level.

Report to the Attorney General’s Office for Consumer Fraud

You may not know this, but your state’s Attorney General’s Office may have a forum to submit a consumer complaint and report suspected fraud. Arizona has this, and it’s not a fun process to go through the subsequent investigation, which could include being subpoenaed for a deposition under oath and/or having a claim for fraud filed against you. If a court found that you committed fraud, it could have devasting consequences for your business, including your ability to be a professional photographer. Taking a client’s money and failing to provide the images could easily be an act of fraud.

If a client wanted to pursue this option, they don’t need a lawyer to file a consumer complaint. They can go online and get the form themselves. The Attorney General’s Office would foot the bill for the investigation, and likely expect to be reimbursed by you if you lose or come to a settlement. Conversely, if a consumer complaint is filed against you, you should hire a lawyer to represent you.

Bad Review

The least problematic a dissatisfied client could do is leave you a negative review on Google, Yelp, or Facebook, or they could post about you online on their social media accounts or their website. As long as everything they post about you is true or their opinion, it’s perfectly legal.

Hopefully, you never find yourself in this type of situation, but if it happens, please don’t ghost your client. Keep the lines of communication open as you work towards a resolution. One of the most common complaints I hear from customers is that the person they hired stopped responding to emails, calls, or texts, and so they felt like they had no choice but to ask a lawyer or the state for help.

Lights Camera LawsuitTM

If you want 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 for updates on the course and helpful information leading up to the release.

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!)