Being a photographer isn’t always as easy as focus and shoot. We have lots of business concerns, and conflicts can arise in the course of creating and designing lasting memories for our clients. We can’t necessarily foresee all the legal problems we might have to confront; however, photographers’ legal matters are always at the top of Rachel Brenke’s mind. As a lawyer and business-school grad, Rachel is well-versed in those legal issues. She runs TheLawTog®, the only comprehensive legal resource for photographers. She met up with us recently to dispense some really great legal advice for running a creative-focused business.
What do you think is the biggest legal consideration that photographers are missing?
Three layers of protection: Contracts, business formation and insurance. Each of these tools do offer some protection, but they work best in layers.
First, having proper lawyer-drafted contracts help inform customers of policies, provide hurdles to any issues a customer may have, and will provide a legal document to reference in situations.
Next, you have a layer of a liability insurance. By having this layer, you can hand-off clients to the [insurance] company to resolve any liability issues that arise. This frees you up to focus on your business and (hopefully) reduce costs to extinguish “fires.”
The core layer is business formation choice. For example, choosing a limited liability company divides the business and personal assets for protection. With the formation at the core, if customers get through the last two layers, they must engage in a legal transaction, such as court or mediation, for a resolution.
What legal questions do you get asked the most from photographers?
What type of contract do I need? How do I register a copyright? How do I deal with clients not wanting to sign a model release?
Are there legal considerations to think about when designing and selling an album?
Albums are an extremely expensive cost and should be protected as much as possible. I recommend an album design agreement that will give the client expectations and control within your desired business policies. Album design agreements set the requirements for the number of images included, how long the spreads will take to design, client proof approval, and the scheduled delivery of an album for approval.
Are there legal considerations to think about when conducting in-person sales?
There are legal considerations when conducting in-person sales sessions. These include protecting your sale with final-sale verbiage. While in-person sales aren’t typically subject to cooling-off laws, clients might still end up with buyers’ remorse, and final sale language on an invoice can force a client to make the decision there, instead of committing to a purchase and then changing their mind.
What do you think is the most important thing for portrait photographers to consider before working with clients?
Photographers need to be mindful of what is included in the portrait contract with their clients.There are photography-specific provisions that need to be addressed. At a minimum, your contract should include the specifics of the transaction, including parties’ names, your name, the monetary exchange and the promised product to be given in exchange for the funds. If someone is a minor, you must have their parent or guardian sign the document or else the contract is null.[As for] a
Same with cancellations, let clients know your late policy. There’s no right or wrong policy. Just be consistent!
Outline all expectations, including turn around time,
For ”Do not edit/reproduce,’‘ this section can probably go under the “copyright” section; however, I find it important in today’s technology age to break it out to emphasize importance. Everyone has editing programs at their fingertips, and even changing a Facebook profile picture and using the crop tool constitutes editing a photograph and compromising the integrity of the photograph as the artist intended it. Many clients confuse copyright/print release and may honestly (or dishonestly) believe they have the right to edit their photographs because they are in them. Maintaining copyright ownership and explicitly spelling this out will nip any potential issues in the bud. Further, outlining that scanning a photograph also violates copyright law may prevent this situation.
Your copyright clause can release the copyright from you to the client. If you transfer the copyright by contract, the photograph no longer belongs to you. In fact, in these cases the photographer can technically never use the photographs without the client’s permission! It is important to ensure there is a provision to protect your artistic property and keep your copyright intact.
The Model release is signed by the subject (or parent or guardian) of a photograph granting permission to publish the photograph in one form or another, typically for marketing and portfolio materials.*This is especially true for minors.
The Substitute Photographer clause is imperative – mostly for wedding photographers — because life happens! You want to have a second or substitute shooter take your place in the event of an emergency. I personally emphasize this to my brides.
Interested in learning more about Rachel, or maybe getting a little legal advice? You can find her at www.thelawtog.com.
Need help with the other stuff, like creating a beautifully designed album? Contact us on the Lush website!