Topic: Intellectual Property
Time Investment: 18 Minutes
Suggested Product: Intellectual Property Acknowledgement
It’s not IF it happens. It’s WHEN it happens.
Yes. Intellectual property impacts your business daily. And others who don’t know (or don’t care) about IP laws can take away from the brand you’ve built and/or products you’ve created.
I’m sure you’ve seen this in groups:
- Someone jacked my images and is using on their Instagram!
- My blog post was scraped and is being used on a large brands website.
- This company is using the same name as mine!
But not sure what to do? Or how to keep yourself from doing wrong to others?
So let’s do this…..Press play on my video. 3 ways that NOT knowing Intellectual Property laws can bite you in the butt!
Hey, I’m Rachel Brenke from The Law Tog, the legal resource for photographers, again with a quick little video to help you guys avoid issues in your photography business.
Now, as photographers, we are selling intellectual property, but some of you probably looked at the title of this video or when I just said that phrase, intellectual property, thought, “I have no idea what you’re talking about.”
That’s okay, because I’m going to school you, in a very positive and happy and applicable way, here shortly, to make sure that you’re able to stay focused on your business, out of legal hot water, and also so you can defend yourself if someone infringes upon your intellectual property, so join me.
Now, before we dig into this intellectual property discussion, please remember that while I am a lawyer, pretty good one, if I do say so myself, but I’m not your lawyer unless we want to be, and then we can do that outside of this video. Everything is for general education purposes, but intellectual property is a federal nationwide application for the most part.
So a lot of this is going to be specific to you, no matter where you are living, then variations that may occur may depend on the circumstances of the situation that you find yourself in. Just keep in mind that this is not legal advice, fine print at the bottom of the screen, but know that you can still take this information, get knowledgeable, and be able to apply it to protect your photography business so you can keep moving towards a successful one and not having to deal with lawyers like me.
So obviously, you guys are watching this video. If you are a photographer or you do photography for your business, which I think would also make you a photographer as well, nothing says that to have the title “photographer” means that you’re selling images.
This video is mostly for photographers who are running photography businesses where you are selling of personal photography services, whether it is for individuals, families, or even commercial. Just keep in mind that everything that I’m going to talk about is primarily for those running photography businesses, but can be applied elsewhere.
So the first way that not caring about intellectual property law can bite you in the butt is through the use of having to change your business name, maybe losing all your social media followers simply because you didn’t do the proper research into choosing a business name.
Now, I’m not going to give you guys a full course on trademark law. I’ve got all that over on thelawtog.com. Just keep in mind when you are setting yourself up as a business, doing just your state-related searches for the LLCs and corporations, the business entity searches is not enough because why? What was the keyword? State. It is only searching the confines of that state.
Trademark law, [where there 00:02:54] is state, there’s also federal trademark law that breaches across all state lines. It goes everywhere, right? So what does that mean? We need to also make sure that we’re choosing a business name that is not infringing upon somebody else’s business name, or in the inverse, make sure that we are being able to retain the rights that we may have in our business name that we originally created in priority right to anybody else, which means coming before someone else for the same services or products, and then enforcing that right down the line.
So the very first way that ignoring the intellectual property laws can bite you in the butt is just arbitrarily choosing a business name and then getting slapped with a cease and desist, or even worse, you may have to end up paying disgorgement of profits, being stuck in a federal trademark infringement suit.
Guys, this can cost you a lot of money, and I’m not just talking just in damages. I’m talking in attorneys fees because think about it. When you’re the infringer, whether you realize that you are infringing or not, you are stuck. You don’t get to choose whether or not you’re going to sue. You don’t get to not be apart of the lawsuit at this point.
Now, if you’re someone who has the business name, and you find someone else using your business name, and you’ve done all the proper registrations and have your trademark, you as the plaintiff relatively have a choice. There’s a duty under trademark law to police, but you relatively have a choice to not sue someone or to stop a suit. You don’t get that choice when you’re the infringer.
And sitting there and saying I didn’t know, whether you cared about intellectual proper laws or not, but the mere defense of ignorance of the law is not a defense when you’re infringing upon someone else’s business name. This can also include logos, all right?
So for a trademark law, which is one part of intellectual property law, make sure that when you’re choosing a business name or an ebook name, a program name, that you’re doing it properly.
Log on to the USPTO website, search for same or substantially similar. Make sure that it’s within the same classes of products or services that you’re offering, and always, you can consult with an intellectual property attorney if you have any questions. But guys, a federal trademark infringement suit can cost you over $15,000 in attorneys fees alone, and I don’t want you to have that by even the butt because you’re going to spend more time and money focused on that than you are on running your photography business.
The second way of avoiding intellectual property law is your knowledge and application [inaudible 00:05:17] can bite you in the butt is also by not even understanding what copyright is. So I just talked about in number one, trademarks, okay? Trademarks are applied to business names, to slogans. They can be logos but is a source indicator between that logo and the business.
For example, Nike Swoosh connects with the string to athletic wear and all these others products and services that they provide. Now, on the copyright side, which is mistake number two, and the way that you can get bit in the butt and is really, extremely applicable to photographers because you guys are selling images. You’re providing services that have an output of images that copyright is attached.
You guys, I see this all the time. This is probably the most important one in this entire video. Many of you, especially wedding photographers, are going to get bit in the butt because you don’t understand the fundamental copyright laws.
Now, you’re probably pausing or clicking away thinking, “Oh, I know. When I press the shutter, I’m good to go.” That’s not enough, and the reason I bring up wedding photographers or anybody that’s doing any other photography that you have another photographer shooting with you, you’re in great danger of not having copyright ownership of the images, or any of you watching this that have a logo created for you or maybe blog posts done for you, not by an employee of your business, you’re running the risk of not having the rights of that intellectual property such as your logo that you’ve hinged all your marketing and all your branding on, right? You’re running the risk of being stopped from using that intellectual property with that logo one day, okay?
So let me give you some quick context on this. This is why it’s really important you understand how copyright laws work. Yes, by default in the United States, when we create a work in a fixed, tangible medium, it is ours, right? It is our ownership. We don’t necessarily have to take the steps of registration. Whole other video. There’s a whole bunch of articles on The Law Tog about that.
However, complications come in when we start having other people do things for us, whether they’re a second shooter, whether they’re just a logo designer I picked off of Fiverr, Etsy, or in a Facebook group and not taking the proper steps to do the right things to make sure we have the copyright.
By default, when we create works, it’s our works, and we have the copyright ownership. We then can enforce the rights to it. We can then distribute it, alter it, reproduce it, right? That’s our rights as the copyright holder.
Now, these other individuals who are not employees of ours or who have not contractually agreed to transfer the intellectual property ownership also had those same rights that I just outlined. So in those images as a second shooter to you, if they’re an independent contractor, by default, they retain the rights to those images.
What does that mean? If you don’t have it in writing that your second shooter is transferring copyrights over to you or a license of use over to you in said images, you’re not supposed to be selling them to the client because they’re technically the second shooter’s. And your second shooter can stop you from using those images at any time.
And you also can’t license and use those images with any other wedding vendors. All the rights still retained in that copyright owner, the second shooter. Again, if they are an employee, then you own it. If you signed it over contractually, then you own it, okay? Nice little crash course on that.
Same thing goes for a logo. If you have a logo designer that you’ve gotten in a Facebook group or online, and they’re not your employee, they haven’t signed it over to you, then you really have no rights but a license of use. And that logo, you can be stopped from using it at any time. And that would suck if you’ve built your brand on it.
So the second way that avoiding intellectual property laws and the knowledge of them can bite you in the butt is you may have no rights in the intellectual property that is being created and sold, or you may be stopped from using it, or worse, you can end up becoming on the brunt end of an infringement suit because you don’t really know the basics of copyright law. And that’s what I’m here for. So please make sure you understand who owns the rights or how to get the rights if you’ve hired other people to do things for you.
And the third way that you can get bit in the butt by not knowing the fundamental intellectual property rights that impact your photography business is also in copyright. Many of you out there are trying to bootstrap your business. I get it. I’ve been there. I’ve talked in other videos about how I didn’t have two nickels to rub together, ended up selling at thrift stores, waited tables, did what I could to get the money to invest in my business, so I understand it.
However, it does not mean that that should be an excuse that you have to ignore the intellectual property laws and figure out how copyrights actually work in your photography business. Fundamentally, and actually, this isn’t as big an issue as it was when I first came out with The Law Tog in the photography industry. Used to be many people didn’t have contracts. They didn’t really even recognize the need for lawyer-drafted contracts.
I’d like to believe that I have had a hand in helping to change the mindset and education of the industry. Whether I have or not doesn’t really matter. I’m really proud that we’re getting to a point that many of you truly understand the need for the use of contracts and for the use of understanding of copyrights and how it also works with contracts.
Now, this third way that you can get bit in the butt by not understanding intellectual property rights, you also heard some of that in the excuse number two, in the way that you not necessarily know who owns the copyrights.
On the other side of it, you could end up giving away rights through contracts because you’ve self-drafted it, or you’ve gotten a contract from somebody. And you may had inadvertently given too many rights to somebody else, maybe a third-party vendor, maybe someone at a wedding that was another vendor. You may have given them more rights than you really wanted to, or maybe you’ve transferred the copyrights to the images but didn’t realize that what all the client really wanted was just to be able to reproduce the digital files that you were selling to them.
So the third way that you guys can get bit in the butt is by giving up too many rights that you don’t necessarily really want to or that you haven’t been compensated for. So making sure that you have the proper lawyer-drafted documents is really important.
And the best way to ensure if you have the right ones is to, one, know the copyright laws, which you guys are going to dig into The Law Tog, have a whole copyright section, you’re going to re-watch this video, and you’re going to see how you are going to have the copyrights and how to protect it.
But also, you’re going to make a checklist. You guys are going to sit down and check your contracts to see are you giving the right rights? You have to ask yourself, “What is it that I’m wanting to extend to this individual, such as my client? What is it that my client is wanting from me, and what am I willing to extend to them?”
Because remember, by default, without any employment status or any contracts in place, I, as the photographer, retain the copyright of the images. So I get the control the distribution, the reproduction, the alteration, the display, all of that. That is my bundle of rights.
Bundle of sticks in how we’re taught in law school, okay, and at any time, I can pull out a stick. And I can hammer on an infringer. Not really. I’m not promoting violence, but you know what I mean? I can use that right and enforce my right to get someone who’s infringing upon me with that.
But what if you actually hand over the sticks without realizing it? And that’s where you need to sit down and look at your documents. Ask yourself, “What is it they want to do with this?” Okay, if your client is merely just wanting to reproduce for themselves, you can take a little bit of that stick and through writing, give them just a little bit.
If they’re wanting all full copyright ownership, they’re wanting to own that whole bundle of rights, well, then, whip up the invoice, whip up the documentation with your lawyer, to make sure that you are properly being able to sell all of that if that’s what you want to do.
Now, I know, copyrights, ownership, who keeps it, who sells it, is a big, hot topic in the photography industry. Would love to hear your comments about it. Feel free to put them below on this video. My thing is whatever your business policies and the way that you want to run your business, just make sure it’s backed up with the proper license language that is written. That’s the only way that we can really transfer copyright, and licenses that are not written are way open for abuse.
The number one question that we get in The Law Tog Facebook group is about infringement of images, which is copyright infringement of images. The images are our livelihood as photographers. We need to recognize the rights that we have, what we’re extending to our clients, and how to defend that.
So please, make sure that you guys are digging into intellectual property laws. These are three quick ways that you can get bit in the butt if you don’t know what’s in your contract, if you don’t have the right documents with your independent contractors, or if you’re just blindly setting up your business and using any name or logo or slogan, then you may get pinged as an infringer.
I don’t want that for any of you guys, so please feel free. If you’re a little overwhelmed, jump into The Law Tog group. You can ask questions. You can ask questions below this video. Make sure you rewind and listen to this over and over because I do talk fast, but I put a lot of really good information.
Take it segment by segment. Take it the three ways that you can get bit in the butt to make sure that you don’t. I’ve given you the answers, now it’s up to you, your responsibility to protect your photography business. Let’s do it.