Category Archives: Legal

copyright release

If I own copyright of the image do I still need a permission to post?

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“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.”

Many photographers often have questions surrounding the use of the photographs that they take and display online. One of the most common questions involves the commercial use of photographs that they take of their clients.

 

Is it okay to……

Is it okay to use the photographs to promote the photographer’s business?

Is it okay to submit these photographs to contests or to use these photographs in an online gallery showcasing the photographer’s quality of work?

Like so many other things in the law, the answer to this question is often fact dependent. In this blog post, we will attempt to examine some of the rules related to this area of the law.  We’re going to look at whether galleries are a commercial activity and what to do in order to use images in these!

 

Is a gallery a commercial activity?

A “commercial activity” means either a regular course of commercial conduct or a particular commercial transaction or act. The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose. 28 USCS § 1603.  Having an online gallery is commercial activity.   The standard applied is using it to gain an advantage in trade.

The Crump case that we’ve cited below is the best for this. In that case, and important to notethe ONLY thing that the person used was the name “dcrump” at the end of a website address link. 

“In September of 1999, Plaintiff learned that Defendant was using the web address http:/o/www.rmaonline.net/dcrump to promote Defendant’s Equine Promotions business, and immediately thereafter demanded that Defendant cease using the name ‘Crump’ or the web location comprised of the letter combination ‘dcrump’ in any internet advertising, promotion, or web address, or in any other medium. Defendant continued to use the letter combination ‘dcrump’ as part of the web address http:/o/www.rmaonline.net/dcrump, and merely inserted a disclaimer on the Equine Promotions web site (to which all inquiries using the web location ‘dcrump’ were forwarded) stating that the site was not affiliated with Diane Crump or Diane Crump Equine Sales of Bentonville, Virginia.”
Here is what the court said (shortened):
“The plaintiff’s name “dcrump” was used in commerce to promote the Defendant’s new and competing horse brokering business. The only historical use of the name “dcrump” in the horse brokering market was by the business in which the Plaintiff was engaged and in which the clear intent was to trade on the fame associated with the Plaintiff’s name in horse circles. It is the association of name with a particular person in a specific context that gives the name both its practical significance and determines the scope of its legal protection under § 8.01-40. People rarely use their full names; even in formal legal documents and business letters, the practice is to use the middle initial not the full middle name. On the other hand people regularly use their nicknames and initials to identify themselves, and these permutations of a person’s name are no less their name within the context of their interaction with other persons than their full name. “Under the common law, a person may adopt any name he or she wishes….” In re Change of Name of Miller, 218 Va. 939, 942, 243 S.E.2d 464 (1978)
On the Internet today, persons regularly use their first initial and last name, as was done in this case to identify their internet address. In the instant case, the use of the name “dcrump” was clearly intended to be a name that would lead interested horse buyers to the defendant’s web page. In the context of a web address, “dcrump” is a name. Since it was used to promote the defendant’s business, its use without permission was prohibited by Virginia Code § 8.01-40.”
So you can see that use of name, face or likeness in a gallery does constitute commercial work because the reason for galleries/portfolios are to solicit paid work!

Okay so it’s commercial activity…how do I protect myself now?

Since your images are going to be used

Many States recognize a “right of publicity,” either through the common law,statutes, or both. While the specifics will vary from jurisdiction to jurisdiction, the typical elements of a “right of publicity” claim will involve the following:

  1.  The use of a likeness, name, or identity of another person
  2.  For a commercial purpose
  3.  Without the consent of that person
  4.  Resulting in damages.

Thus, the commercial use of a photograph created by photographer can pose issues, even though the photographer is the rightful owner of the copyright related to that photograph as the creator thereof.

Moreover, even in States that do not recognize a common law right of publicity, a specific State statute might impose civil or criminal penalties for the misuse of the likeness of another. In the Commonwealth of Virginia, there are two statutes that are worthy of discussion.

In the Commonwealth of Virginia, “A person, firm, or corporation that knowingly uses for advertising purposes, or for the purpose of trade, the name, portrait, or picture of any person resident in the Commonwealth, without having first obtained the written consent of such person, or if dead, of his surviving consort, or if none, his next of kin, or, if a minor, of his or her parent or guardian, as well as that of such minor, shall be deemed guilty of a misdemeanor and be fined not less than $50 nor more than $1,000.” Va. Code. § 18.2-216.1

Moreover, “Any person whose name, portrait, or picture is used without having first obtained the written consent of such person, or if dead, of the surviving consort and if none, of the next of kin, or if a minor, the written consent of his or her parent or guardian, for advertising purposes or for the purposes of trade, such persons may maintain a suit in equity against the person, firm, or corporation so using such person’s name, portrait, or picture to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use. And if the defendant shall have knowingly used such person’s name, portrait or picture in such manner as is forbidden or declared to be unlawful by this chapter, the jury, in its discretion, may award exemplary damages.” Va. Code § 8.01-40(A)

There do not appear to be very many cases involving a criminal prosecution in the Commonwealth for the misappropriation of a likeness of another. (A search through case law revealed only three cases in which § 18.2-216.1 was mentioned an then, only in passing.) However the courts in Virginia are often called upon to apply Code Section § 8.01-40(A). The Courts have ruled that a right to recovery can exist when even a name is misappropriated. See Town & Country Properties v. Riggins, 249 Va. 387 (1995); Crump v. Forbes, 52 Va. Cir. 52 (2000).

 

But I own copyright – doesn’t that make a difference?

Ownership of the image and the right to publicity are two vastly different things.  Ownership is owning the property of the image itself, but you do not own the person’s likeness or physical face just because you merely photographed it.  See more information on Copyright Ownership here: Violation of Copyright, Copyright 101,  and Copyright vs. Print Release.

If you don’t have a release it’s in your best interest to not post and use these images in any manner that may be seen as commercial.

 

What does all of this tell us?

How can a photographer protect themselves from the application of such statutes? One of the best ways to do this is with a clearly drafted contract that grants the photographer the right to use the image or likeness of another in a specific way. Such a license would grant consent for the use of that image for the promotion of the photographer’s business or for other purposes (also known as a model release – see more information on model releases here).

While there are other statutory, common law and Constitutional protections that might apply to the use of a photograph or likeness of another, one of the best ways to protect yourself is through the skillful use of written contractual provisions designed to protect the interests of the photographer and client alike.

No photographer should do business without a contract!  Get yourself protected and released from possible claims of clients through a model release!

 

destinationweddingphotographycontract

Just Released: Destination Wedding Photography Contract

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This agreement covers all of the pertinent areas any photography business owners should have to cover themselves legally for a wedding.

Includes provisions such as:

  • coverage
  • payment schedule
  • completion schedule
  • provided meal
  • copyright
  • rescheduling
  • cancellation
  • travel requirements
  • artistic rights, etc.

Does not include a model release. 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 yours here

free photography pricing guide

Get more money without raising your photography prices!

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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.

 

1. Cut your costs

Identify leaking money – such as subscriptions, overspending on props/actions, and other money going to items that are giving you low return on investment.  Cutting costs lowers your CODB and increases your profit margin like *snap*!

Make sure you even know your costs though – if you don’t make sure you get it all into a system whether an Accounting SpreadSheets or a Pricing Guide Spreadsheet.

 

2. Change your legal structure

Consider moving into a legal structure with a better tax benefit.  Generally Sole Proprietors are wide open for liability and have little tax benefit. Consider moving to an LLC or Corporation. If you’re already an LLC then maybe a S Corp Federal election can help reduce tax liability.  Get 1:1 help on this here

 

3. Use deadlines and fees in your contract

Always put client’s feet to the fire. Get your money in a reasonable time with a deadline and potential penalty.  The more time you have to spend chasing after a client to order the less money you’re putting into pocket and more time taking away from securing inquiries.  If you aren’t using a Photography Contract snag one here and get more legal info in TheLawTog’s free ebook here.

 

4. Automate and get efficient!

Implement strategies into your workflow that reduce your time so you’re making more money.  Reservation booking pages, hands-on email templates, and other tools can help you to consistently deliver information and increase your time saved to increase money earned.

 

5. Follow up with past inquiries

Tap into these people.  Ask them if they are interested still – encourage them to stay engaged with your social media site and blog features.  The more they see you in their inbox, the more your name is searing (branded!) into their mind and the more likely you are to convert them into paying clients.  You didn’t pay money to get them (Or if you did that money is already spent) may as well maximize your exposure to them.    Take The Modern Tog’s approach to portfolio building (affiliate link) while making money with these past inquiries and you’ve definitely succeeded in making more money without raising prices!

 

Have any more ways to maximize money without raising prices? Leave them in the comments! I would love to hear them!

 

gears300-95x95Want more awesome 1:1 help?

Bizrevamp – the biz webcourse for photographers- closes registration tomorrow. Snag your spot here!

senior rep photography contract

Newly Released: Senior Graduate Representative Kit

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Kick off your Senior Representative Program each year with confidence in the legitimacy of your agreements and confidence in the forms you’re using! Pair this with awesome marketing materials and you’re set for a rocking Senior Representative Program!

This Kit includes:

  • Senior Representative Contract
  • 4×6 Marketing Card Templates (front and back) (.psd)
  • 4 Tri-fold Brochure Templates (.psd)
  • Senior Rep Questionnaire

 

The Senior Graduate Representative Photography Contract outlines requirements, expectations and contractual provisions needed for having a Senior Rep Program!

Provisions include:

  • duration
  • what they will receive (fully editable for you!)
  • fulfillment of duties
  • adult responsibility for presence & communications
  • ethics standard of reps
  • and more!
  • This template is drafted with multiple options for you to choose from to suit your business needs!

 

Snag your kit here

bizrevampgiveaway

BizRevamp -Revamp Your Biz This Summer Giveaway

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In honor of the relaunch for the ever-popular BizRevamp webcourse here is an awesome giveaway to help you REVAMP your biz!.

BizRevamp is THE biz webcourse for photographers with tons of information on formation, taxes, insurance, contracts and more!

The course is so awesome because each student receives:

  • 8 modules of lessons including business formation, taxes, insurance, contracts, client management, website management and bonuses!
  • Students get lifetime access to all Module lessons with videos, transcripts, downloadable handouts, checklists, and audio files to keep.
  • Plus each student can submit for 1:1 feedback on lessons that will have personalized advice delivered via podcast to your inbox.
  • Not to mention the exclusive community for only BizRevamp students to help facilitate marketing networks and business assistance.

So ready to help me celebrate the return?

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