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“I didn’t know that law existed”
Sorry, friend. That doesn’t really matter. Ignorance is not a defense.
If you’re putting yourself out like a professional photographer- ACT LIKE IT!
Click to watch the 5 laws you didn’t know about that could GREAT impact your photo biz negatively!
So, where am I supposed to know how to be legally compliant? How do I know about the laws? I got you guys. My name is Rachel Brenke, and I am the head attorney and photographer over at TheLawTog, the legal resource for photographers. Been around for almost a decade now, so guys there’s no excuse that you don’t know the laws, however, I have to do my part, so this video, I’m going to share with you some of the laws that you may not know about that you might actually be breaking in your photography business, and want to make sure that you’re not going to, so you can stay focused on running your photography business, bringing home that money, and living the life that you actually want to have, and not dealing with attorneys like me or worse, because there are worse ones out there. See you guys here in a second.
Of course, what would be a legal video without a legal disclaimer? I am a lawyer, but I’m not your lawyer, unless you want us to be. We can talk about that offline. All this information is for general education purposes. Please always consult your local attorney. The fine print, always got to go through it, now let’s get into the actual laws and tips that you need to know.
Alright so, many of you, especially if you’re in my Facebook group, or on my email list have already taken the awesome steps of making sure that you’re a legal photography business, or else at least educating yourself so you can take those steps. I have other videos where I talk about how to save up, what you need to do, and all of that. We are going to look at this a little bit past that, and we’re going to talk about more of these, I wouldn’t necessarily say obscure, but they may not be as highly talked about laws that could be impacting your photography business.
So, this video’s, we’re not talking about LLCs, and contracts, and all that, well maybe a little bit, but not from the basic standpoint. We’re going to address some of the laws that maybe impacting you that you don’t necessarily realize exist out there.
So, starting off with the very first one is music licensing. I want you guys to stop and think for yourself, “Okay, I’m a photographer, I sell intellectual property.” We sell images, right? Whether they’re physical, whether they’re in canvases, albums, or even digital. Now, we want whatever licenses that we sell through print release, commercial licenses, and all of that, we want to be able to have the control over that artwork, over this embodiment of our work, right? Well, the same thing goes for music artist, and as a commercial business, which you are as a photographer selling products and services to your clients, need to also abide by and respect other artists with the copyright laws, especially when it comes to music.
I get it. I have a studio. I love being able to throw on music, get the mood going, us being able to dance around, and just get out the wiggles before getting in front of the camera. The problem with this is music licensing exists. Now, typically when I say you need to be mindful of music licensing, all photographers go, “Oh, I know I can’t download a song and resell it.” It’s more than that. Just like I mentioned, it’s also about just streaming radio or playing music in your studio, or at specific events on behalf of your commercial business without the proper licensing.
I have an article on TheLawTog, you guys can check out. I’ll stick it into the comments as well, but the biggest thing with this that you have to understand is that it’s not just straight up, “Oh man, I’m playing music for commercial, I automatically need to have a license.” That’s not necessarily what the law’s saying, but from a conservative standpoint, not political, just risk adverse when it comes to running photography businesses, because I want to keep as much time and money in my pockets, I’m sure you guys do as well, as opposed to having to pay that out on fines and fees because the two large music groups that are out there, that license the majority of music, they are looking for you.
Don’t fall into the trap of thinking, “Oh, I’m too small. They don’t care about the little fish.” Yes they do, because they’re all about quantity over quality, which is really interesting, and they still can get a lot of money. How does this happen? They send someone into your studio, or into the event you’re having, they record it, they document it, and then they pull you into federal court. Don’t believe me? I’ve been there, multiple times on behalf of my clients, not me as the person that’s in trouble. It happens.
What is the best way around it? You either go onto one of these two websites, we’ve got BMI or ASCAP. You can get licenses from them, or simple, simple, simple, go to Spotify and get the business account. Always check all terms, always make sure it applies to your situation. Like I said, the law is not a blatant brushstroke saying that all photographers need to have a music license in order to play it. There are very specifics when it comes to the number of people, square footage, etc, etc, but yes, let’s stick on the side of conservative risk and let’s do the research to see if we need it. Worst case we pay a couple extra bucks a month in order to have Spotify Business or one of the other business licensing that’s available out there, that does apply to my situation as opposed to having to spend thousands of dollars defending a copyright infringement suit, and having to deal with lawyers that are no fun. Federal court maybe fun for the lawyers, but it’s not fun for you guys, just trust me on that one.
Law #2 that can actually really hurt you if you don’t abide by it, many of you probably have read articles such as on the LawTog, or read the law, copyright law that embodies this, but didn’t really understand how this applies. Number two is that any individuals who are not yourself, you had an employee, or contractually transferring over copyright, all the copyright belongs with them. Wedding photographers, this is especially important. If you have second shooters that are photographing for you, and they’re independent contractor by status, and they did not contractually sign over any of the intellectual property rights in the images, all you have at this moment is a license that can be revoked at any time, which means that they can keep you from using it in marketing at any time, and if you continue to do it, that second shooter can sue you for copyright infringement.
Take it another step. You also should not be selling it to your clients, because that license probably does not have an implied license for you to resell it, probably only for you to use it. I say implied, because it was not written. Please have a contract with any independent contractor. Second shooters like for weddings, logo designers that create the logos for you. Always have contracts, even if they’re an employee, I’d highly recommend this, that all documentation transfers over all intellectual property rights to you, the individual that wants to own them, so that you can enforce the rights that you can use those images or use that logo in the course of your business. This is all embodied in the copyright law. I don’t know why this is not discussed about more.
I see it in photography groups all the time. You guys are not using contracts for second shooter. Well, how are you getting the intellectual property rights? You then cannot enforce any rights on those images, and you can be stopped from using them, and we don’t want that, especially if it was your client. You spent all the time and money to get them, and you’re trying to run your photography business. Do the right thing, get it in writing, whether they’re employee or independent contractor, and just be mindful that you could be currently having a bunch of images on your website that you only have implied license of use, at any time can be revoked from your use, and we don’t want that.
And, the third legal thing you guys need to know, did you know, probably not, that’s why I’m doing this video, but did you know, this is especially true in the context of wedding clients, that the people in the photos don’t have to be those signing the contract itself. I have a caveat for that, which I’ll get to here in a minute, but yes, it’s true.
Let’s say you have a couple that’s getting married, and then all of a sudden you have a mom or a great rich aunt that wants to pay for it, and wants to be a signing party on the contract. Guess what? They can. It doesn’t have to be the couple. Now, my recommendation is always for it to be as clean and easy, put the couple on it, if the mom and dad want to pay, let them give the money to the couple, and then, them pay you, or if the mom and dad wants to pay you directly, use a third party payer addendum that outlines the responsibilities and rights. I do have an entire article, I’ll link it below. It’s over on the LawTog, explains this a lot more, but keep in mind, you don’t necessarily have to have the individual who’s in the photograph in the contract, which leads me to number four, and it’s going to answer that question, “Well, what happens with the model release?”
So, #4. The individuals in the photograph do have to sign the model release for themselves unless they’re a minor or there’s some other type of guardianship type of relationship in there that allows for someone else to sign for you. So, technically, if you’re a family photographer and you’re sending out a portrait contract with a model release with it, and let’s say only one of the parents is signing it, technically they’re not supposed to be signing for their spouse unless they have a power of attorney or some sort of guardianship over them.
Why is this important? Because, model releases do a couple of things. They do way more than give you permission for use of the images, and when I say images, it’s the person’s face in your marketing as a photographer, but it’s also identifying this very issue of publicity rights. The individuals in the photographs have control over how their face, their image, their face not the physical image of the photograph, but their image, they’re face, the publicity rights, which are regulated by state-by-state, but for the most part, almost all states have this.
So, you guys need to be mindful that only the individuals in the photographs can sign for themselves unless they are parent or legal guardian of somebody else. This goes back to number three, what I just talked about a little bit ago. Yes, you could have mom and dad or the great aunt Sally sign the wedding contract and pay the money, but you still are going to need to have the couple who are in the photographs to sign their own model release, and just like in the family photography example that I just gave you, you’re technically going to need to have the both parents, and all adults in the photograph sign for themselves. They cannot sign on behalf unless what? I just said it multiple times, you guys know it. Yes, unless they are the parent or legal guardian of that individual, or have a power of attorney that’s giving them the right to do so.
And, while we’re on the topic of minors, let’s get to #5, can a minor sign a contract, and if they do, is it enforceable? I see this a lot with senior photographers. Probably not so much new ones, they’re not signing anything, plus there’s the whole capacity issue, which we won’t get into, but guys, when you have minors sign a contract, and this can be state specific, the age of majority varies, but you can be bound to a contract that a minor has signed. However, in some states, the minor could void that contract at any time. Let’s say that again. You as the adult, as the business can be bound if that minor, depending on the state, if that minor wants you to be bound to the photography services contract, but the minor could pull the rip chord and get out of it at any time.
What is the recommendation for this? Don’t do business with minors. Well, which is kind of weird if you think about it, especially if you’re a senior photographer and you’re wanting them to have an input, you can do that, you can have them acknowledge and sign other documents that are not legally binding, that regulate and create the legal relationship to make sure you get paid, who owns the images, blah, blah, blah, and all that sort of stuff. So, just keep in mind that a contract maybe voidable by a minor, but could bind you, and you maybe stuck, but they could walk away scot-free.
I hope these five laws have helped open up your eyes just a little bit, but there’s a lot more legal information that you need to know about running a photography business. Please feel free to jump into TheLawTog community group. You can comment on the video below. I would love to talk with you guys one-on-one. I do my own social media and all the interactions so, it is me, so give me a shout and let’s talk.