I cringe every time I see a post about photographers and
models teaming up to shoot during the COVID-19 pandemic when they should be
social distancing and staying home. The only photographers who should be out
shooting these days are the ones who are documenting the pandemic.
My business mentor taught me that when you’re not working in
your business, you should be working on your business. Here are 6 ways
you can work on your business while sheltering in place.
Edit Your Images From TFP Shoots
Models frequently complain that they rarely get images from
open TFP shoots. They held up their end of the bargain. Now it’s time for you
to do yours.
Brainstorm and Research Future Projects and Collaborations
Now is a good time to reach out to models you want to work
with and research ideas for shoots you want to do when the Shelter In Place orders
are lifted. There are lots of online groups where you can network with other
photogs and models.
Create Your LLC
Are you still a sole proprietor? <shiver> Please fix
that. No entrepreneur should be without a business entity for their company.
In most states, you can create a business entity online.
Look up your state’s Secretary of State Office or Corporation Commission.
Review or Create Your Legal Documents
Do you have templates for your client
contracts, model releases, and copyright license? If not, now you have the
time to create them. If you have them, can you remember the last time your
reviewed them? If not, now would be a good time to do that. A lot of people are
double checking that they have an effective force majeure
provision in their agreements.
If you want to respond to suspected copyright infringement
by sending a cease
and desist letter, now is the time to create an epic C&D template so
you’re ready to lay the smack down on anyone who violates your rights.
Update Your Website
I bet it’s been a while since you did that. Make sure it accurately
reflects your style and strengths. Even I’ve spent time while sheltering in
place, updating this site.
Clean Your Gear
Now you have the time to clean your gear, including cleaning
out gear you no longer use. Get your gear serviced if your camera shop is still
open. Don’t forget to go through your memory cards and get rid of images you’ll
never do anything with.
If you can’t resist the urge to pick up a camera, please
limit yourself to shooting still life, self-portraits, and/or shooting at home
with members of your household. You can also work on your craft by re-editing
older photos and taking online trainings on various techniques and skills.
Lights Camera LawsuitTM
There’s always a need for quality legal information for photographers. That’s why I created an online course called Lights Camera Lawsuit: The Legal Side of Professional Photography to address photographers’ most important questions. It’s 23 lessons, nearly 6 hours of legal information, with tons of information about contracts and copyright. I want you to feel secure in your business, confident in the way you operate day-to-day, knowing that you’ve set yourself up to get paid what your worth without incident.
The course is $497,
but until June 1, 2020, you can get it for 20% off with promo code thrive20.
I’ve spent the last week promoting
the bejezus out of this, and I’m so pleased that the response has been so
positive:
Looks like a powerful product… I’m sure it will prove very popular!
Super good idea, and i love the curriculum.
Sound like a good (and much-needed) product.
Just forwarded it to every photographer I know
I will never stop being amazed at your entrepreneurial talents – what an amazing idea.
On the eve of the pre-sale, I wanted
to respond to some of the questions I’ve received about this course.
What inspired you to create this
course?
I’ve worked as a lawyer for eight
years and a model for five. Basically, I’ve worked on both sides of the camera
without having to touch one. I’ve seen there is a great need for quality
information about photography law, and, unfortunately, most photographers can’t
afford to hire a lawyer to help with all their legal needs. I’ve seen too many
photographers make costly mistakes that were completely avoidable, particularly
related to their contracts and copyright. I created this course to save other
photographers from making the same mistakes.
Why did you create a course instead of another type of
product or event?
There are three reasons. First, by creating a course, I can
maximize the number of people I can help while keeping the price down.
Second, the material in the course is evergreen (at least
until the law changes), so I want it to be available when people are ready for
it and looking for a reliable resource about photography law.
Third, people who buy the course will be able to access it
again and again, versus a live event which is a one-and-done deal. If there are
changes to the law, I can update the lesson in question or add an additional
lesson to the course, and everyone who had purchased it to date will get it at
no additional cost.
Does the course include contract templates?
No, and here’s why – I’m not allowed to under the rules of my
law license. However, the course includes the list of provisions I include in
my contracts and lots of sample verbiage from real documents I’ve created for
photographer clients.
Where did the name Scarlet Maven come from?
Scarlet Maven is the name of my superhero alter ego.
Why did you have to create a separate business entity? What
type did you create?
I created a separate entity, Scarlet Maven, LLC, to make it
clear that there will not be an attorney-client relationship with people who
buy the course.
On the advice of my accountant, I created an LLC for this
business. LLCs are a great choice In Arizona, because they are basically set-it-and-forget-it
entities. The state doesn’t require an annual report or fee. I don’t have to
file anything with the state unless the company moves or dissolves.
What aspects of the course did you outsource?
Each lesson is going to be a screencast with a voiceover
recording. I hired Elizabeth Fullerton at
Boldfaced Design to create the templates for the PowerPoint slides.
Additionally, because I have no artistic talent and only had
a feeling about what I wanted my logo to look like, I hired Dina Miller at Square Peg Creative to
create the logos for Scarlet Maven and Lights Camera Lawsuit.
Both were money well spent. These ladies did a beautiful job.
How have you been promoting the course?
In addition to promoting the course through Scarlet Maven’s
email list, I sent well over 500 individual emails to photographers, lawyers,
and other professional creatives who might be interested in the course or who might
know people who would be interested in the course.
The promotion won’t end with the pre-sale. I expect Lights
Camera Lawsuit will be a course I sell for years to come, so I’ll continue to
look for opportunity to reach more people about it.
What parts of this process were fun?
Creating the outline for the course and each of the lessons
was fun. So has been talking with photographers about their needs and what they
hoped to get out of this.
What new skills did you have to learn?
This venture gave me the opportunity to learn some new skills.
This was the first time I ever created a website with Squarespace. It’s quite
different than working with WordPress, but not too hard once you learn the
basics.
This is my first online course, and I’m using Teachery for it. I was so glad and relieved to
learn that this platform is super easy to use. I’ve also taken a number of
courses that platform, so I know how easy it is for users as well.
What challenges did you face?
Scarlet Maven is my side business, so one of the challenges I
faced was making time to devote to the business, create the course, and promote
it. I still have my full-time job being a lawyer, writer, and speaker where I don’t
always control when I have deadlines or when work gets dropped in my lap.
The biggest challenge I faced, by far, with this venture has
been managing my anxiety.
What if no one likes it?
What if no one buys it?
What if I screw up making it and it never gets to market?
These are the types of fears I wrestled with on a daily
basis. Sometimes they caused me to procrastinate working on the course. The
best way I knew to manage them was to focus on the next task in front of me instead
of being consumed by the bigger fears related to the course’s overall success.
Lights Camera Lawsuit Pre-sale: February 14th-18th
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
There’s always a need for quality legal information for photographers. That’s why I created an online course called Lights Camera Lawsuit: The Legal Side of Professional Photography to address photographers’ most important questions. I want you to feel secure in your business, confident in the way you operate day-to-day, knowing that you’ve set yourself up to get paid what your worth without incident.
At $497, the course contains nearly six hours of legal information you can immediately apply to your business. That’s less than what I charge for two hours of legal work for clients!
Please subscribe for more information and to make sure you don’t miss out on any special offers or discounts.
“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
There’s always a need for quality legal information for photographers. That’s why I created an online course called Lights Camera Lawsuit: The Legal Side of Professional Photography to address photographers’ most important questions. I want you to feel secure in your business, confident in the way you operate day-to-day, knowing that you’ve set yourself up to get paid what your worth without incident.
At $497, the course contains nearly six hours of legal information you can immediately apply to your business. That’s less than what I charge for two hours of legal work for clients!
Please subscribe for more information and to make sure you don’t miss out on any special offers or discounts.
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
There’s always a need for quality legal information for photographers. That’s why I created an online course called Lights Camera Lawsuit: The Legal Side of Professional Photography to address photographers’ most important questions. I want you to feel secure in your business, confident in the way you operate day-to-day, knowing that you’ve set yourself up to get paid what your worth without incident.
At $497, the course contains nearly six hours of legal information you can immediately apply to your business. That’s less than what I charge for two hours of legal work for clients!
Please subscribe for more information and to make sure you don’t miss out on any special offers or discounts.
“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
There’s always a need for quality legal information for photographers. That’s why I created an online course called Lights Camera Lawsuit: The Legal Side of Professional Photography to address photographers’ most important questions. I want you to feel secure in your business, confident in the way you operate day-to-day, knowing that you’ve set yourself up to get paid what your worth without incident.
At $497, the course contains nearly six hours of legal information you can immediately apply to your business. That’s less than what I charge for two hours of legal work for clients!
Please subscribe for more information and to make sure you don’t miss out on any special offers or discounts.
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
There’s always a need for quality legal information for photographers. That’s why I created an online course called Lights Camera Lawsuit: The Legal Side of Professional Photography to address photographers’ most important questions. I want you to feel secure in your business, confident in the way you operate day-to-day, knowing that you’ve set yourself up to get paid what your worth without incident.
At $497, the course contains nearly six hours of legal information you can immediately apply to your business. That’s less than what I charge for two hours of legal work for clients!
Please subscribe for more information and to make sure you don’t miss out on any special offers or discounts.
“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:
It protects your copyright, and
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
There’s always a need for quality legal information for photographers. That’s why I created an online course called Lights Camera Lawsuit: The Legal Side of Professional Photography to address photographers’ most important questions. I want you to feel secure in your business, confident in the way you operate day-to-day, knowing that you’ve set yourself up to get paid what your worth without incident.
At $497, the course contains nearly six hours of legal information you can immediately apply to your business. That’s less than what I charge for two hours of legal work for clients!
Please subscribe for more information and to make sure you don’t miss out on any special offers or discounts.
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.
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
There’s always a need for quality legal information for photographers. That’s why I created an online course called Lights Camera Lawsuit: The Legal Side of Professional Photography to address photographers’ most important questions. I want you to feel secure in your business, confident in the way you operate day-to-day, knowing that you’ve set yourself up to get paid what your worth without incident.
At $497, the course contains nearly six hours of legal information you can immediately apply to your business. That’s less than what I charge for two hours of legal work for clients!
Please subscribe for more information and to make sure you don’t miss out on any special offers or discounts.
