Category Archives: Legal

photography copyright

Photography Copyright Misuse: Only The Smile Remained

 “Defendants removed so much of the original that, as with the Cheshire Cat, only the smile remains.”

 

There are many blogs that discuss the legal ramifications of using other people’s images without consent – photography copyright misuse. However, what about the person who receives consent or a non-exclusive right to use a specific photograph and then digitally altered their photograph? Will this act be considered a copyright infringement?  The answer is likely contained in the license agreement.

With the development of digital imagery, PhotoShop™ has become the industry standard in editing software and have opened up a whole new world of possibilities for photographers. Nowadays, you hear about the use of PhotoShop or some other editing software to change an image. 

For example, former super model Cindy Crawford’s signature mole was PhotoShopped on British Vogue’s cover she was featured on.  Likewise, famous rapper Iggy Azeala’s mole was also erased from a Saturday Night Live promo with PhotoShop. However, we are not talking about simple mole removal.

 

What is a License Agreement?

License agreements are a simple way to allow others to use your work without granting them full rights, often at a price. (see Copyright Laws Primer)  For example, a photographer (i.e licensor) may give a website owner (i.e licensee) the use of a specific photograph for a charge or a fee. A license can limit the usage by the licensee, allowing the licensor to maintain his copyright. The license may be exclusive or nonexclusive. An exclusive license exists when the transferred rights can be exercised only by the owner of the licensee, and no one else – including the person who granted the license (the licensor). A license agreement doesn’t grant the licensee ownership of the copyrighted material, merely limited use of it.  If the license allows others (including the licensor) to exercise the same license transferred in the license, this license is said to be non-exclusive. If a website owner violates the terms of your licensing agreement, he may be in violation of copyright law as well as your contract.

Related: Fair Use, Copyright and What It Means To Your Photography

 

Whether the PhotoShopped image violates the non-exclusive use agreement depends on the terms of the license

The licensee’s right to make such a change may be addressed in the non-exclusive use agreement. The license agreement tells you what you can or cannot do with the photograph. Was the licensee given the right to make changes in the agreement? If not, then the change is likely infringing (i.e a violation of the agreement). Any time a licensee uses your copyrighted material in a fashion not expressly outlined in your licensing agreement, he violates the copyright. (see Section 501 (a) of the Copyright Act).  However, not ever breach of the non-exclusive agreement is infringing either. This depends on the nature of the breach. Use of the photograph within the scope of the license period is not a copyright infringement until you, the copyright the owner give notice to the licensee that his use has been canceled. Any use of that photograph after the licensee received notice is infringing. Likewise, if the agreement prohibits reproduction and/or alteration and the licensee alters the photograph by PhotoShop, is infringing. Anytime a user utilizes the copyrighted work of another in an unauthorized manner constitutes both a breach of the license agreement, giving rise to contract law remedies and an infringement of the licensor’s intellectual property, with remedies provided by statute. (see Section 504 (b) of the Copyright Act)

 

How much alteration for it to be considered infringing?

As I stated above, removal of someone’s mole is not enough to be considered an infringement. So what is it then…altering the entire picture or parts of it? One change? Ten Changes? Courts tend to look at the “fair use” (see Section 107 of the Copyright Act) of the photo.  In the Kientiz v. Sconnie Nation case, the court held that the defendants alteration of an imagine of Madison Wisconsin mayor Paul Slogin, which was authored by photographer Michael Kientiz is fair use of the photograph.  Here, the court looked at the market effect that is whether the alteration is a compliment to the copyrighted work (i.e allowed) rather than a substitute for it (i.e prohibited).

Generally, changing a copyright property, most likely forms a derivative of the original. Whenever you take an existing image and modify it to create a different image, you are making a “derivative work.” (see Section 106 (2) of the Copyright Act).  A derivative work is a work based on or derived from one or more already existing works. (see US Copyright Office Circular 14: Derivative Works)  Forming derivatives is a property right held by the copyright owner. The licensee may own a copyright in their version of the image [the scope of which would be limited to the creative elements that licensee added and would not include any of the original content] but absent the right to display derivative work from the owner of the copyright in the original. However, in the Kientz’s case, the court did not fully address a copyright owner’s derivative rights. The court wrote “Defendants removed so much of the original that, as with the Cheshire Cat, only the smile remains.”

 

When in doubt, read the fine print

Although fair use may provide a defense for an accusation of copyright infringement – it does not for breach of contract. It is best to be safe than sorry since no one will be “smiling” when they are served with a lawsuit. 

 

Photography Contracts

Top 20 TheLawTog Articles for Your Photography Business

As we wind down 2015 here is a listing of the top 20 TheLawTog blog posts to help you get your business in gear for the New Year!   TheLawTog is the legal resource for photographers with photography contracts, live webinars, online education and exclusive email tips

 

1. How to set up (or maintain) a photography business

Setting up business is so super important! We need to make sure you’re on the right path!  This high-level check list is great for newer or advanced photography businesses to use as a barometer for making sure you’re on the path to success.

 

2. Is a digital contract legit? (and how to use them!)

Digital contracts can provide great efficiency and cost-effective measures for your business. Let’s take look at whether they are legal and some tips on delivery!!

 

3. Making your photography biz more efficient by going paperless

As a mother of three and running two businesses I was forced to find efficiency measures (such as quicker blogging, providing tools for clients to talk about me , getting my shots as close as possible in camera, and working on the go ).  Another great time and money saver was to go paperless.  Here are the major tips that I can provide to maximize efficiency, while minimizing costs.  

Most of these are physical online capabilities that I roll into one single link to send to my clients. By providing the client guide (investment information), payment option and digital contract it reduces the number of communications, potential for lost paperwork and time. 

 

4. Managing clients with your words

More than likely, if you’re reading this, you are a professional photographer and work intimately with the ins-and-outs of what is entailed in every step of the client/photographer relationship daily.  Clients don’t.  Even if they come to you yearly for the last ten years, your business policies have probably changed at some point.  How would they know if you don’t tell them?

 

5. 5 ways to avoid photography client conflicts

 Client conflict is bound to happen or try to rear its ugly head during the course of your photography career.  We don’t need to let it.  We can work together to ensure that it stays away or at least alleviate some of the ugly results that may arise out of conflict.   In business we want to keep the ocean as smooth as possible but not be a doormat to our clients either.  Implement these five ways to avoid conflicts with your photography clients to be able to stand firm on policies but also offer a great customer experience.

 

6. Should I hire a lawyer or cpa for my photography business?

Many times small business owners, especially photographers, are erroneously told to just “hire a CPA” to set up your business.  It is actually recommended to seek out the advisement of both types of professionals, lawyer and CPA.  As you can see from the definitions here, both are licensed but are experts on different matters completely.  

 

7. If I imitate a photography session is that copyright infringement?

I came across a great location and gained permission from the property owner to use it.  A well-known photographer has used that location for a few years.  I have had a wooden swing and this location is the perfect place to put it up and use it.  This same photographer also uses a wooden swing there.  Would I be infringing on her copyright if I use a similar wooden swing in the same location that she does?

 

8. Top mistakes photographers make (but you don’t have to!)

Not everyone goes into business having all the answers. Okay I’m sure there is no one.  If you are – simply delete and go on your way!  Ah good you’re still here.  I figured you would be.Even if you’ve grown up with a business owner parent, or better yet a photography business owner parent/mentor – there are still things you need to know.  No matter what stage of business you’re in there is something to learn.   

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9. Do I need a DBA for a new brand under my photography business?

I am a portrait photographer who specializes in children and babies but I want to add a new brand for boudoir. How can I do this?  Do I need to set up another DBA with the state under my current company?

 

10. Legal sales tools photographers need to make money and protect themselves!

 Protecting yourself during the sales process is essential to ensuring the sale is made and money is delivered. Here is a list of legal sales tools that photographers should use to protect their business and the sale.

11. The most successfully failed marketing idea ever

A few months ago I marketed a commercial head shot event.  It was an open-house at the studio – totally last minute and thrown together.
 
Really not something I’d like to admit but I am BECAUSE you will see that how I handled it later made it successful. So even if you’ve only halfway approached marketing activities there is still time to save them.
 
Not a single person showed up. I was okay with it because I had planned to work at studio all day anyways. I was only out my “marketing time” at this point – since all of the backdrops, lights, etc. were already in my ownership.   So on the surface, since I sat in my office working away, on the outside it looked like a failure right?
 
Wrong. It was more successful than any facebook ads or social media marketing I could’ve done. All year. Combined.

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12. If I own copyright to an image, do I still need permission to post?

I am a portrait photographer and I have a website where I maintain online galleries.  In my viewpoint this is not an ad, merely an art exhibit; I do not view them as being used in a commercial way. My contract has a clause in it stating that I can use the images from that session for self-promotion. However, since I am a newbie, I have a included photographs that I took while I was building my portfolio and before I started charging and using a contract. Now I am wondering if this is illegal for me to display these images that I don’t have a contract/release for.

 

13. 5 tips to successful portfolio building (even if you’re not a newbie photographer!)

Portfolio building is a great way to get your photography business off the ground, propelled into offering a new type of photography or simply getting yourself out of a rut by getting creative.   However, in order for portfolio building to be successful for you there are come key things to understand. 

 

14. Make more money without raising your photography prices

Sometimes you feel you just can’t increase your photography prices anymore.  It feels like the bubble has about burst and you just can’t do it.  After you’ve done your proper market analysis and have eliminated the idea of fear holding you back – move to looking at how you can make more money with what you already have instead of increasing prices more.

 

15. How to cancel a photography contract

It is never fun having business walk out the door – but sometimes it needs to happen, or you want it to happen!   We are all using a photography contract to outline the responsibilities of each party, you and the Client.   

Photography contracts are not only legal tools for entering into a business transaction, but they may be the very thing that is needed to sever one.  Canceling a contract is a very real process that many are not aware of and unfortunately have to go through.  

Here are some steps and the applicable legal tools needed to complete your end result!

 

16. Is there a difference between “commercial” and “portrait” photography? (plus pricing info!)

We are talking two different animals here. Completely different species altogether – with varying benefits and drawbacks to each.  Each also come with their own host of legal implications if not handled properly.  Commercial photography can include portrait photographers who are requested to do head-shots, vendor shots and other marketing related set ups.

 

17. A guide to using photography contract template forms

Contract formation is one of the most important skills a small business owner can develop.  And one of the main skills you will probably need when mastering this skill is understanding certain legal terms when you come across them.

As we discovered in the article Haggling and Bickering: The Need of Concrete Service Contracts, the most important aspect of contract formation, for most businesses, is the choice of terms and conditions. That principle is just as true for those using form contracts, such as those that may be obtained from TheLawTog. Forms are a fantastic starting point for contract drafting, but, unless you have the most unvaried business in history, no form that you can obtain is going to fit your business exactly.

 

18. How to put a stop to image theft

There are few things more frustrating to a photographer than having your work stolen — and yet, in this Internet age, it happens all the time. When the day comes that you click through to an article or blog post and surprisingly see your own images staring back at you, without credit or link or permission, you’ll be outraged like thousands of other photographers have been before you. But what can you do? Is there any way to truly protect your work? And when someone does steal your stuff, what are your options? Do you contact the person? Pursue legal action?

To help answer those questions, here’s a look at strategies and tips for stopping image theft

 

19. 10 reasons I’m switching from discs to flashdrives

Flash drive are the wave of the future! Really! (Aren’t sure whether to offer digital files, check out this post Embracing the Digital Age or Not?). Making this jump is exciting and completely new!  So take a gander and feel free to leave in the comments why you want to switch to flash drives!

 

20. Accounting tricks for photography businesses

For small businesses, organizing accounts and keeping track of expenditures, benefits and income will reduce the amount of stress and frustration owners face during tax season. Even if a company does not yet have the funds to hire an accountant, limiting the complications of filing taxes isn’t impossible.  Here are 3 accounting tips for photographers (and relevant for other small business owners!)

christmas light tutorial (2)

How to photograph your clients wrapped in Christmas lights (or not!)

You don’t.

Yes, I know that they can be super cute – and it is okay for you to do to yourself but for a client? There may come a time that you want to draw the line in the faux snow covering your studio floor.  Some actions are not worth the liability-ridden factor that comes along with them.

Since Pinterest has come around it has brought a lot of photography trends that many of us wish would..just..die. Right?

But that is okay. 

Sometimes giving a little for the client is OK….but here’s some friendly legal advice. NOT WHEN IT HAS A RISK TO IT.

In fact, while I was researching for this article I stumbled across this article showcasing this light-wrapping phenomena, by one of my favorite blogs no less! The more I looked at the images though, I realized something. Wrapping yourself in lights may be dangerous – burns, lead, electrocution, but if you want to do it to yourself – by all means.

But for clients? We need to be a bit more professional and vigilant on protecting our businesses than jumping on board the Pinterest-photography-idea-wagon.

So I’m not here to slam this idea -if you want you can read about the dangers of wrapping clients in lights go here – I’m actually writing to shed light on potential liability ridden requests by clients and give a how-to on handling client requests that may be out of your comfort zone. 

 

Here’s my advice in a nutshell - (scroll down to get the longer answer to each)

  • You don’t have to take every client or request that comes your way
  • Protect yourself against liability
  • Always carry liability insurance
  • Be knowledgeable

 

How to handle client requests

 

Guess what? You’re the business owner.  You don’t have to do any request simply because it is requested.

True story.  Nix that fear of having a client go the other direction and think – if my gut says no, then there is a reason.  This can be the Christmas lights wrapped up, train tracks, or just merely an aesthetic choice that you aren’t into.  

The key is to successfully turn someone away without making them feel alienated but protecting your business.  

Key actions can include:

  • Refer them out – “Unfortunately that isn’t a request that I can handle at this time, but I have a great referral for you” (but make sure you ask the referring photographer if they would be comfortable too!)
  • Offer an alternative – How about we try X – I think we could really come together to create a great session getting close to that result as possible.
  • Simply say no – If you are uncomfortable you don’t have to do it. “I’m sorry but I don’t feel comfortable with that idea. I would still love to be your photographer though!”

It is best to sit down and figure up ahead of time what your response will be so you aren’t caught off guard and/or feel pressured to do something you’re not into.

 

How can I protect myself against liability?

 

Again – you’re the business owner – so if you WANT to take on these requests just make sure you’ve put some protections around you.  In fact, this liability protection list is for every photography business owner.  In no particular order.

  • Contract - Always have a contract in place outlining all of your policies and an indemnification policy.
  • Carry liability insurance – Carry the proper liability insurance.  There are a broad range of insurances that every professional should have, liability is just one piece of it.  In fact, many wedding venues and locations will not allow shooting without proof of such insurance.  (Companies include PPA, HartfordHiscox – I don’t endorse any of these over the other – merely providing the information for you to research on your own. Always look at the policy provisions!)
  • Business Formation – Set your business up separate from your personal assets (such as an LLC or Corporation).
  • Think before you act!  Always make sure the surrounding environment is safe, you have informed your clients of all the requisite safety measures and are vigilant during (and immediately surrounding) the session.

If you absolutely must or want to engage in risk-taking behavior with clients make sure you sign a Release of Liability Waiver

 

Resources to keep you and your clients safe

 

Completely overwhelmed with business?

BizRevamp returns soon – this webcourse will help give you the information + confidence to run your business the way you want.

Should I hire a CPA or a Lawyer for my Photography Business?

Should I hire a CPA or a Lawyer for my Photography Business?

My husband is great at helping cook, clean and get things ready for my “last-minute-must-throw-a-Pinterest-worthy-party-although-I-didn’t-plan-anything.”  So he ends up bearing the brunt of picking up the food I failed to plan for – and bless him- he tries.  

Yes he’s going to kill me for this sharing this. 

So I’m full out trying to throw this party for guests by setting it up at home, he arrives with all the requested condiments and everything to dress the main dish.  

But when he purchased the main dish he picked up Italian Sausage not Bratwurst.   No, not the end of the world.  But it changed all of the accompaniments and the whole feel for the food that evening.  Pinterest-party-idea-last-minute-change.  Instead of feeling “Oktoberfest”, it was more like a summer day in Italy.

But on the surface they are similar right?

Sausages. Fit in a bun.  Maybe some mustard.  What kind of mustard? What about the accompaniments? Not to mention the different taste preferences of the guests. 

This is very similar to the approach that some business owners take when they are seeking out a professional to help their photography business.  They grab someone licensed (yay!) because the packages look similar and hope they have are the correct main-dish to set the mood of the business and fulfill the preferences and needs at that time.  Except, there is a difference when you have legal questions based on the flavor of the question.

 

 

Okay okay, enough of the food analogy.  

 

Certified Public Accountants (CPAs) and Lawyers have the licenses and knowledge to help set up your business – but depending your specific situation you may need a taste of CPA over a lawyer, or vice versa.  

This can also change as business time goes on. 

Here is a basic run down of which professional you should hire for your business based on the need.  If you’re new to setting up your business or want to reevaluate check out this  Checklist here).

 

CPA and Lawyers Defined

CPAs are Certified Public Accountants that work with a range of financial matters.  These can be individuals, firms or institutions that provide these services.  Typically, you’ll hire a CPA for help with preparing your taxes and financial planning for your photography business.  These individuals offer way more benefits than merely inputting of financial reports, as they are licensed and educated to provide strategy advice and advisement for matters you may approach in your business.

Keep in mind a CPA is a certified and licensed individual.  The terms “bookkeeper” or “tax-preparer” may be erroneously used interchangeably for the designation of CPA- and does not always relay whether an individual try has the licensure or not.

Lawyers are individuals who are licensed at a State level, to practice law.  Lawyers are generally licensed (there are exceptions) but often specialize in the type of cases they take on.  It is important to find a lawyer who is well versed in business transactions to properly and fully assist with your photography business.  I will warn you – you’ll be hard pressed to find lawyers who have run a photography business to give this complete view but we do exist out there!

 

What to ask a CPA:

  • Best business formation for me (based on taxes)
  • Tax strategy and planning
  • Advisement on tax situations

 

What to ask a Lawyer:

  • Best business formation for me (based on liability)
  • Contract creation and review (you can also snag templates from TheLawTog for use or to take with you to reduce drafting fees and time!)
  • Advisement on client situations

 

A Mistake Many Photographers Make

Many times small business owners, especially photographers, are erroneously told to just “hire a CPA” to set up your business.  It is actually recommended to seek out the advisement of both types of professionals, lawyer and CPA.  As you can see from the definitions here, both are licensed but are experts on different matters completely.  

 A CPA may be well equipped to help set up your photography business from a tax standpoint (tax liability, strategy, etc.) but may not be experienced in helping you choose the right business structure for your business – this is where lawyers come in. 

Lawyers are required to study business transactions and this subject is a portion of their licensing exams, therefore, they have the knowledge to provide advisement on legal formation matters.

 

How do I find these professionals?

It is recommended to always start with word-of-mouth recommendations by other local small business owners.   I have a list of recommended professionals here.

If you don’t know of anyone with a recommendation, start with the State Bar website to search for lawyers in the business arena and check out their credentials.  Simply Google “State name State Bar Association”.  Directories are public and free to search.

 

Both of these professionals are necessities to business formation and management as they are required to have continuing education to keep their licenses current and up-to-date.  

Always set up review times with these professionals to ensure you’re updated to the most current set of laws and see if changes need to be made as your business grows.

private event photography contract

New: Private Event Photography Contract

 

This agreement covers important contractual provisions a photography business owner should have to cover themselves legally for a private photographic event. Includes provisions such as: coverage, payment schedule, completion schedule, rescheduling/cancellation,
proofing, artistic rights, etc.

This photography contract is intended for general use for all types – it is not provision specific as the other photography-specific contracts are. This is meant for those who may not necessarily specialize or need a general contract to cover all types.

Model release not included. Must be purchased separately. These contract forms are not state specific as they are drafted on general contract principles and experience as a photography business owner.  They come in .doc format to readily tailor to your business-specific policies.

Snag it here