Category Archives: Legal

imitate photography

If I imitate a photography session is that copyright infringement?

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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?


Finding a great location is awesome (even better if you obtain permission for a private location) but sometimes the fear of copying someone may come into play.    On the facts of the question above though it can generally be said that this imitation is not a copyright infringement.

Further, locations are not copyrightable.  If we had a situation where a photographer was recreating a specific photo then derivative work liability might attach, depending on the circumstances surrounding the situation.  

Derivative works are a newly created and original work that includes an aspect, or multiple aspects, of an already existing, copyrighted work. (See these resources on Copyright Law for Photographers).  

US Copyright Office Circular 14: Derivative Works notes that:

A typical example of a derivative work received for registration in the Copyright Office is one that is primarily a new work but incorporates some previously published material. This previously published material makes the work a derivative work under the copyright law. To be copyrightable, a derivative work must be different enough from the original to be regarded as a “new work” or must contain a substantial amount of new material. Making minor changes or additions of little substance to a preexisting work will not qualify the work as a new version for copyright purposes. The new material must be original and copyrightable in itself. Titles, short phrases, and format, for example, are not copyrightable.

The more different works are and the most artistic influence a photographer puts on the session, then the less likely derivative work liability would apply.



photography business

Top Mistakes Photographers Make (but you don’t have to!)

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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.   

So today let’s go over some top mistakes photographers make in their business.

  • Choosing the wrong business formation - Business formation can have great impact on the liability protection, as well as tax liability (meaning money you do or don’t get to keep) for your business.  You may not be in business and need help.  That stage is super important to have the knowledge in making the right choice.  You may already have been in business for years, but did you know changes occur in your business – and so may the need for the business structure you have. 


  • Not deducting appropriately -  Tons of deductions a year go un-”claimed” resulting in money you could’ve kept in your pocket.  Alot of times this is due to organization even if you have a CPA.  CPAs can only do with what you provide them – you are the first line of organization – make sure you have the knowledge to organize appropriately.


  • Failing to have the right insurance -  I see this all-too-often in forums.  People asking for recommendations on insurance and most only settle on the liability and equipment as suggestions. Yes those are great, but did you know there are up to SEVEN types that your business may need to be protected?  Seriously overwhelming but that doesn’t change the reality of their necessity.


  • Falling into the trap - A common statement that I see from photographers of all stages in business is “I don’t do X that often so I don’t need Y” – and they leave themselves with a huge legal hole and open for potential liability.  Don’t fall into the trap of thinking because an action for your business ONCE doesn’t mean you don’t need protection.  Whether it’s a contract written for events, even if you shoot one event.  Or only having an assistant for the day but failing to have in writing expectations and compensation.  Be prepared with the knowledge and tools needed ahead of time so you can make the correct business decisions, instead of off-the-cuff unprotected decisions and actions.


  • No plan or a misguided plan - Wanting to “survive” or “make money” is just the beginning of creating a successful business plan.   There is actually a true method to madness in planning.  Why do you think there are degrees dedicated to business management and planning?  It’s not just choosing an end goal then taking a shot in the dark.  It requires a clear, yet fluid, plan that shapes and changes as your business does as well.  In fact, it was reported in Huffington Post this week that Apple (see article) made more in one quarter of 2014 than Google, Amazon and Facebook combined. They surely didn’t do that without a clear, succinct plan. 

As a lawyer and business consultant I’ve seen these mistakes over and over and over and over…..
In fact, many times I get you guys in my inbox wanting to fix issues after the fact.  My goal is to get myself out there to help so we can prevent or lessen the impact of issues and mistakes such as listed above.  Which is why I (a) have this blog/newsletter and (b) have created BizRevamp.My online Biz Course – BizRevamp is open for limited enrollments.  I seriously LOVE enrollment time because I get a whole host of new victims, I mean photographers, to help with their business.  Thousands have gone through the course and have come out the other side thriving.  

You can snag a sample lesson + information here.

Being on this email list is the first step to protecting your business – I’m still throwing out weekly advice and tips to help you protect your business.

The webcourse, BizRevamp is only for those truly ready to revamp and take their business to the next level.

No matter which you decide is the right path for you and your business at this time, I’ll see you right here next time!


photography dba

FAQ: Do I need to get a new DBA for a new brand?

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“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?”


What is a DBA and why would I need it?

Let’s start off first with explaining what a DBA (doing business as) does.  DBA means “doing business as” but can also be interchanged with the terms “trade name,” “assumed name”, and “fictitious business name”.  These are the registration of the name that you are using for your

If you are going to operate with a business formation of Sole Proprieotr in your state (versus an Limited Liability Company or Corporation – if you don’t know the difference I recommend you check out some online resources or enroll in BizRevamp for individualized photography business help with this!) and operating under a different name than you legal name


As always check with local state laws – sometimes even having the word “photography” at the end of your legal name necessitates the need for a DBA or other substitute filing.



What if I want to start a new specialization?

This depends if you’re intending to operate under a totally new business name or simply an extension of your business.  It is important to consider your actions and the circumstances surrounding how the program or separation of the specialization is set up and viewed.



Completely New Business

If you are going to take steps to completely set up a new site, name, social media, etc. and it looks like a completely separate business then you do need to make sure you’re registered under this name.   A good way to look at it is to ask yourself “Would a client question if this brand is part of my existing business or is a separate business?”


Operating as a Program

An option would be have a “program” name for your business but have it attached to your business name.  Take for example you’re Jane Smith Photography but that is known for the babies and children photography.  You could do “Secret Moments by Jane Smith Photography” as a program without having to be a separate business entity since a reasonable person would see the business name attached.


What if I can’t afford the DBA fee?

You can’t afford not to afford the fee.  Most states a DBA is free or relatively cheap – there is no excuse. Consider the consequences, in most states if you put yourself out like you’re a business then you will be treated as such (including applicable laws).  Some states can fine up to $500 per day day that you put yourself out as a business but are not registered as such. Worth it? No way!



There is no easy clear cut answer in law, as you can see.  It is always best to decide how far you want this brand to be separated from your current business name and set up, then follow up with local governing authorities to make sure you’re compliant with the law.


photography sales tool

Legal Sales Tools Photographers Need

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Last time we chatted about Making Sales Without Being Salesy - but you know me – I can’t let sales pass on by without discussing some of the legalities.    
Here is a good brief run down on the tools for helping sales:
  • Portrait Contract and Model Release - This governs the relationship between Client and Photographer. This will lay the foundation for sales by having provisions (if drafted right!) about completion schedules, ordering deadlines, etc.   The model release is the specific form giving the Photographer rights to use images for marketing purposes.


  • Final Sale Agreement -  This document is done on the ordering session day and acts to inform the client of a final sale and waive any Cooling Off Laws that could allow a client to change their mind – even if just for buyers remorse!  


  • Album Design Agreement - This agreement is super important when you are spending lots of cost-of-goods on items, particularly an album that can be hundreds of dollars out of your pocket.  I like to have an acceptance of the proof design by clients prior to ordering. 


  • Product Delivery Agreement - This agreement is a written acceptance of all products after the Client has had the opportunity to view them.  This is especially helpful to prevent any potential “I didn’t get X product” statements after you have delivered the complete order. 

Here is a visual timeline to help you understand how it all works together!


client timeline
All of these aren’t necessarily needed as it depends on your client’s order and your business policies.  Just keep in mind you want to prevent issues instead of trying to fix them later.

Outlining all expectations ahead of time in writing is a great way to keep expectations clear and provides a foundation for optimal customer service.

Rachel Brenke
www.thelawtog.comp.s. Don’t forget to snag the Salesographer/TheLawTog bundle before it ends September 25th. This includes all the Salesographer video tools + TheLawTog Portrait Contract + TheLawTog Model release.  Read more here.