Category Archives: Legal

Photography Intern Hiring

How To: Photography Intern Hiring

Your business is booming and you keep getting inquiries from fledgling photographers about internships. You start thinking about it, and a little extra help for your business might not be such a bad thing! Someone to take over some easier tasks for low (no?) cost could help ease your burden and allow you to take on more clients, all while mentoring a newbie. Sounds like a win-win, so what do you need to know?

Let’s start with a VERY important decision: to pay or not to pay?

 

Paid Or Unpaid?

While there are countless people willing to intern for free, it may not be your best bet. Surprised? Well, this is because the U.S. Department of Labor limits what an un-paid intern can do under the Fair Labor Standards Act.

 

An unpaid intern can:

  • Shadow you performing your duties.
  • Perform duties that do not have a “business need”, meaning a training exercise. For example, you can set up a fake photo shoot for the intern to shoot that your business will not benefit from in any way.

 

An unpaid intern cannot:

  • Complete any work that contributes to your business’s operations, meaning any task that helps run your business.

 

Yikes! While un-paid internships are still commonly used, this is generally only true for large corporations and other such entities. Most small businesses will be better served by a paid internship.

 

Hiring an Intern

When beginning your intern journey, start with some basic considerations:

  • Do you have enough work for an intern? No need to waste your time or an intern’s if you don’t have the workload.
  • Do you have the resources for an intern? For example, do you have the time to manage the intern, a place for them to work, etc.

 

After thinking this over, if you think that an internship position for your business would be possible and beneficial, you can move on to thinking about what the relationship will look like.

  • What you need out of an intern? Do you need someone with a little experience or can someone without any experience be of help? What kind of tasks to you expect them to complete?
  • Come up with a job description, so expectations are set for both sides from the get-go. This includes things like pay, responsibilities, and term of the internship. This can be used in your search for an intern as well.
  • Consider what short-term and long-term projects an intern could complete.
  • Plan in advance for when you want to hire an intern, as the hiring process could be lengthy.

 

Great, you know what you want you want from an intern. Now where do you find said intern?

  • Register with career service offices of local colleges that have art departments and/or art schools. You can also post ads on bulletin boards at these locations.
  • Post with online photographer communities.
  • Post on your website and social media accounts.
  • There are also intern websites that you can post on and/or search for an intern yourself.

 

Managing an Intern

Remember, this isn’t just an opportunity for you and your business, but an opportunity for the intern as well. In order to have a successful and positive experience you must keep in mind why a person volunteers to work for little to no pay.

  • Sure, your intern will probably do some “clerical” work and will expect to! However, they will expect to have some “real” work as well. Let them attend client meetings. Let them shoot. Let them edit. Let them help with your website and social media.
  • Give the intern feedback! Not just constructive, but positive too! This may even by a requirement if the intern is receiving school credit.
  • Make sure they know what you expect from them. This means more than just how and when to complete tasks, but also what your professional expectations are. For example, timeliness, attire, cell phone usage, etc.

 

The Law

Remember an intern usually falls under all labor laws that apply to the workplace. For example:

 

In addition, depending on your jurisdiction, you may need worker’s compensation insurance for an intern.

 

Your Choice

In the end, only you can know what your business needs are and what type of internship relationship will work best for you.  

If you need more assistance check out the SBA website with these resources:

 

If you are ready to hire an Intern check out these TheLawTog Resources that may be amended for internships based on the scope of their duties:

 

 

photography contracts (1)

Top 10 Reasons To Have A Photography Contract

 

So you’ve set up a photography business but now what? Facebook page? Maybe. Twitter handle? Could happen. But most important, besides skill and dedication are the contracts that will safeguard your business.   Here are the top ten reasons to have a photography contract in place.

 

1. Outlines client expectations

Clients do not run out and get photographs taken every day. You must outline the expectations you have of them and what they can expect from you. Not only to cover yourself but to provide customer service.

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Photographing a logo

Is photographing a logo legal?

As photographers, we don’t just have shoots in a studio. We are out and about, constantly scouting fun and unique backgrounds. This might bring us downtown, where we might utilize a unique storefront as a backdrop or having an engagement shoot in a bookstore for two bookworms.

In these instances you might purposefully capture a unique business logo or book cover in a shot. Do you need to worry about copyright issues photographing a logo? Maybe, but it depends on how you want to use it.

In today’s world where information and images are easily accessible and shareable on the web, it is becoming more and more vital for photographers to have a working knowledge of how the law can affect you. This includes not only how to follow the law, but also how the law can protect you. Two main areas of the law that often apply to photographers are copyright and trademark law. The two are similar and often confused, but are actually quite different.

So, let’s start with the basics. There are two areas of the law that may apply in these situations; copyright and trademark laws. They are similar, but actually quite different, so let’s briefly go over the two.

 

Copyright and Trademarks

What is a copyright? A copyright is the legal right of the creator of a ‘work of authorship’ (i.e., photograph, sculpture, novel, dance, etc.) to control the future use of that work. This means that the copyright owner controls any reproduction, give permission to use the work as they choose, and display the work in the manner they deem fit. These rights attach as soon as the work is created, thus registration is not a requirement. However, copyrights can be registered with the Copyright Office, which may give the owner additional benefits.

 

Copyright infringement is using another’s work without permission. For example, using a photograph taken by another on your photography website without their permission to do so.

 

What is a trademark? According to the United States Patent and Trademark Office, a trademark is, “a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others.” For example, a trademark protects the relationship between a company/person with the word/phrase/symbol/design, otherwise known as ‘mark’. A trademark comes into effect when someone is the first to use the mark in commerce or when it is registered with the Patent and Trademark Office.

 

Trademark infringement is when a mark is used by a non-owner if it is likely to cause consumer confusion about the source of the good or confusion of whether the good is being endorsed. Trademark dilution is when the mark is weakened due to identification with someone else’s good. For example, if a company tried to sell bicycles under the name Ford.

Differences Between Copyrights and Trademarks

An important distinction between a copyright and a trademark is their goals. A copyright’s goal is to control the future use of the work and protect the rights of the owner. A trademark’s goal is to control the relationship of the mark to the owner.

 

Another difference between copyright and trademark are the restrictions on legal uses of the work or mark by others. In general, a copyrighted work can only used by others with permission/license from the owner. On the other hand, marks can be used without permission of the owner under certain circumstances.

 

Marks may be used without permission of the owner as long as it isn’t being used ‘in commerce’ and does not cause ‘consumer confusion’.

  • ‘In commerce’ means that your use has of the trademark has a substantial effect on interstate commerce, such as an interstate advertising campaign.
  • ‘Consumer confusion’ means a consumer might believe there was some sort of association or endorsement between the mark and your business/product. For example, you can’t put the Cannon logo on your ad for your photography business that might be used in an interstate manner.

Source

 

Logos and Book Titles

Do copyright or trademark protections apply to logos and book titles?

A logo that is used commercially clearly falls under the protections of trademark law. Some more complex logos may also be protected under copyright laws as a work of art.

A book title may fall under the protections of trademark law, but the writing in the book falls under copyright protection. In order to fall under the protection of trademark law a book title must meet one of two criteria.

  • The first is when a series of books has been developed under one title, to the degree that the public associates the title with the series (e.g., “Chicken Soup For The Soul” book series.)
  • The second instance is when a title is also applied to related products/services (e.g., A book that has been turned into a movie with associated merchandise.)

 

Photographing Logos and Book Titles

Under these protections affecting logos and book titles, what are you, as a photographer, able to do with them?

If you want to use a photograph with a trademarked logo you can do so under the right circumstances. You can use it as long as you aren’t using it ‘in commerce’ AND if it doesn’t create ‘consumer confusion’.

So what does that mean for you?

Say you have a photograph of a couple in front of a Krispy Kreme Donuts store with the logo clearly visible. You can most likely use this photo on your website, since it wouldn’t reach the level of substantially effecting interstate commerce and there is little chance that a consumer will think you are selling donuts.

It is important to keep in mind that if a logo is more complex it may also be copyrighted, in which case you will need permission, or license, from the owner to use it. Permission may be gained by contacting the copyright owner (which may not be the original creator). Make sure you get permission in writing before using the copyrighted material.

As for a book title, you must first determine whether the book title falls under one of the two requirements for trademark protection. Is it a series or is the title also applied to related products/services? If not, then it isn’t trademarked and it can likely be used. If so, then it is trademarked and it can only be used if you aren’t using it ‘in commerce’ AND if it doesn’t create ‘consumer confusion’. For example, if you take a photo of a baby on a Winnie the Pooh book you can likely post it on your website.

 

When in doubt ask for permission for the use of the logo or book title from the owner and/or consult an attorney for help with specific trademarks as they can be tricky!

photography copyright infringement-

Is a Pinterest inspiration board photography copyright infringement?

You’re hammering away at your client workflow and planning the session with your client.

It is going to be killer. Awesome location.  Capable and fantastic hair and makeup artist. 

But it all comes to a screeching halt when it is time to have your clients visually show their vision of the session.  You wonder to yourself… “is a Pinterest inspiration board photography copyright infringement?”

In the past few years online style boards and inspiration boards have quickly gained widespread popularity. Just as quickly as these type of inspiration boards appeared, a dialogue about potential copyright issues surrounding the use of these boards become a hot button issue.

 

How do Inspiration Boards Work?

Through websites like Pinterest and Polyvore, users are able to ‘pin’ or save images from anywhere on the web to their personal boards. These boards are used to organize the saved pins or images onto the user’s personal boards and each image is intended to contain a link to the original source. They are commonly used to collect recipes, children’s ideas, clothing/outfit inspiration, professional photographs, home décor ideas, and more.

 

 

Copyright

You might think that if your saved image has a link to the original source then there is no legal problem, but in a lot of cases that is not true. In order to explain what the potential problem is let’s start with what ‘copyright’ means. Copyright refers to the legal rights of the copyright owner over their original work. The original copyright owner is the creator of the work. For example, a copyright protects the legal rights of a photographer over an original photograph, and the legal rights of an author over their writing. These legal rights give the copyright owner control over how their work is ‘copied’. In other words, the legal right to determine who else may use or ‘copy’ their work and in what manner it can be used.

 

Copying copyrighted work in any way without permission from the copyright owner constitutes copyright infringement. To avoid this, before a copyrighted work can be reused the ‘copier’ must first gain permission, or license, from the owner. A license can be given for a charge or for free at the will of the owner. Each license sets the details of how a work may be copied. This can include setting a specific term for it’s use, the jurisdiction it may be used in, the manner in which it is used, etc. One of the most commonly used licenses for creative works is called the Creative Commons license.

 

A license to use copyrighted work is not always required. For example, a copyrighted work may be used without license if the use is determined to be a ‘fair use’. A fair use includes educational purposes and commentary printed in an editorial. It is not always clear what a fair use is, so this exception may be tricky.

 

Another exception is work that is considered to be in the ‘public domain’. Work that falls under this category may be used without a license because it does not have a copyright owner. This might be because the owner has given up their rights or the owner has been deceased for a legally set number of years.

 

 

Copyright Issues Using Inspiration Boards

Another note, Pinterest has an “opt out code” for websites to make their copyrighted images “un-pinnable”. Potentially if you are not using the code you could be considered to be giving implied license for all of your images! A similar case with Google found an implied license by not using the code. This potentially means that any user of the boards who has pinned or saved that image is infringing on the copyright.

 

 

Legally Using Inspiration Boards

So if you want to share images of outfit ideas with your client for an upcoming photo shoot, can you do so legally? Yes, but it is important to take steps to ensure you are doing so legally. The safest way to do this is to share saved or pinned images that you created and hold the copyright to. It is also safe to share images that you have license from the copyright owner to use in that manner. If you don’t have a license you can always ask the owner. Many copyright owners are happy to give permission for this type of use in order to promote their product/business.

 

Although the above are the safest way to ensure you are not committing copyright infringement, there are several other ways that are most likely safer than blinding pinning and saving. One way is to pin or save images that have a “Pin this!” button, which implies permission from the owner is being granted for this type of use.  If the first person to pin has license then by pinning they give license to users, so re-pinning is ok. Another way is to always give appropriate credit to the original source and not utilize the image for your own profit. As these boards are new and the copyright issues are largely untested, it is important to remember that these methods are not fool proof. When in doubt, consult a lawyer!

 

 

photography model release form

Do wedding guests need to sign a photography model release form?

You publish an awesome wedding feature for one of your favorite couples of the wedding season.  It was a dream with the details, engagement of the wedding party and the venue was to die for. 

The feedback from your audience is amazing with raves and likes. 

Then you get an inbox message from a guest demanding pictures of them to be taken down because <insert their reason here>.

You start to think to yourself – I thought the bride and groom signed the model release so all is fine right? Wrong.  The Bride and Groom can’t sign for their guests.  So you spiral into these questions: “How do I know when you will need a model release for a certain photograph? What about when there are lots of people that could potentially be in the photograph? Do I have to get a release for each one?”

 

Let’s start at the beginning picking this through!

 

What is a Model Release?

A model release is a legal document in which the person in the photograph and the photographer agree to how the image will be used in the future. Releases can be crafted to include a wide variety of information, such as what purposes the photograph can be used for, in what medium it can be used, and even how long the photograph can be used in this way. This agreement allows both the photographer and the person in the photograph protection.

 

Need a model release – snag a lawyer/photographer drafted on here!

 

When is a Model Release Required?

So, when is a model release required? The answer to this question changes based on your unique set of circumstances. In order to determine whether you will need one for your protection you can ask yourself some easy questions:

  1. Where? Where will the photograph be taken? Where will others view the photograph (i.e., Will you only be giving the photograph to the client or will you be using it in advertising for your business?)?
  2. Who? Who is recognizable in the photograph?
  3. What? What are you planning to do with the photograph?

 

Where?

The first thing to consider is the law of the jurisdiction where the photograph will be taken. Laws regarding a person’s privacy can vary jurisdiction to jurisdiction and can affect whether you will need a model release. It is also important to consider the laws of the jurisdictions where your photograph will be viewed. For example, if you are using a photograph for an advertising campaign and it will be printed in a magazine in a neighboring state, the privacy laws there will matter as well.

 

The next ‘where’ consideration is whether the photograph is taken in a ‘public’ or ‘private’ place. A public place is somewhere where people do not expect to have privacy, such as a public street. A private place is somewhere where people do expect to have privacy, such as a person’s home. For general use of a photograph, consent of your subject is required when a photograph is taken in a private place, but not a public place. However, this can change if you want to use the photograph for commercial purposes. Meaning, using the photograph solely for an advertising purpose. For example, if you look at photograph and you instinctively believe it is promoting a good that means it is being used in a commercial manner.

 

Who?

When you are determining whether you will need model releases, you only need to consider those people that are recognizable in the photograph to be used for commercial purposes. In general, if a person in a photograph can’t be recognized there is not need for a release.

 

What?

What will you be using your photograph for? A photograph intended for commercial use will likely require a model release, where a photograph used only for editorial purposes may not. Commercial use of a photograph can include any use intended to sell or promote.

 

Why Do These Restrictions Exist?

These restrictions are meant to protect a person’s privacy. Most states recognize some level of privacy rights. This means that a person in a private space generally has the expectation that they won’t be photographed, and therefore a model release would be needed, no matter what purpose you intend for the photograph.

 

So Are Model Releases Needed From All Guests at a Wedding if You Want to Use an Image for Commercial Purposes?

Let’s start with where, who, and what:

  1. Where: The jurisdiction where you take the photograph and any jurisdiction in which the image will be seen will determine the privacy rights of the wedding guests. Next, where is the wedding being held? Is it a private home? Is it a public park?
  2. Who: Only those guests that are recognizable in the photograph will need model releases when used for commercial purposes. This would not be the case if you are using the photograph for a non-commercial purpose.
  3. What: As you are intending to use the photograph for commercial purposes, model releases will likely be required for any recognizable guest, no matter what type of space (public or private) the wedding is being held.

 

Looking at that, it’s going to boil down to the use of the images.  Generally speaking, as we’ve just seen, people do not have an expectation of privacy in a public place. They know that they are going to have their picture taken at a wedding. The problem is that certain uses of an image can violate publicity rights (depends on jurisdiction – as mentioned before).  The reality is, the majority of guests accept that the wedding photography will occur.  

Here is an example of looking at a jurisdiction’s statute (Virginia) for application of these principles.
“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.”
However, there is an exception to the statute for uses that are incidental to the purpose of the work, and according to this exception, a publisher will be liable for the publication of an unauthorized picture only if there is a direct and substantial connection between the appearance of the plaintiff’s name or likeness and the main purpose and subject of the work.  It is reasonable to believe that background guests would fall under the incidental exception in this state. 

So as you see though, there are seemingly endless considerations for determining when you will need a model release. Make sure you consult an attorney to help make this determination for your situation as each vary – but you have a good idea now!