Tag: Arizona business attorney

  • GDPR: Full Disclosure Required

    «Via sicura» by Falk Lademann from Flickr (Creative Commons License)

    If you’ve been following this blog, you know I’m all about preparing for the General Data Protection Regulation (GDPR) as it applies to content marketing. This rule applies to every company that sends commercial emails to anyone in the European Union. (If you don’t know where everyone on your list is located, assume at least one of them lives in the EU.) We’ve already talked about how, under this law, when you want to add a person to your email list, you must get their specific informed consent and you must be able to prove that you obtained their consent to be on your list.

    The GDPR requires, when you obtain this consent, to provide the person (aka data subject) with the following information:

    • The identity and contact information of the controller of the data subject’s information or their representative;
    • The contact information for the data protection officer (if applicable);
    • Your purpose for processing the data subject’s information and legal basis for doing so;
    • The period of time the data will be stored;
    • The data subject’s right to request erasure or corrections of their data or to restrict the processing of their data;
    • The data subject’s right to withdraw their consent;
    • The data subject’s right to lodge a complaint with the supervisory authority; and
    • Whether the data subject giving their information fulfills a statutory or contractual obligation.

    If you want to process the subject’s data for another purpose, you must tell the person in advance, and when a person’s data is processed for direct marketing purposes, the data subject has the right to object at any time.

    At the first reading of these requirements, my first thought was that the signage at conferences where vendors collect business cards would have to become much more complicated to comply with GDPR. I thought about how this firm will comply with these requirements. People voluntarily add themselves to my email, so I don’t know where they live. I will be adding double opt-in consent for my email list, and I believe the most effective way to comply with these requirements is to include this information in the confirmatory email.

    You can hear more about these requirements here:

    We have to comply with these rules by May 25, 2018 when this new rule goes into effect.

    If you want more information about GDPR, please watch this site and my YouTube channel because I’m creating a substantial amount of content on this topic. You can also send me an email (Note: I can’t give advice to non-clients). I use my mailing list to I share my thoughts about being a lawyer/entrepreneur, updates about projects I’m working on, upcoming speaking engagements, and I may provide information about products, services, and discounts. Please add yourself if you’re interested.

    You can also connect with me on Twitter, Facebook, YouTube, or LinkedIn.

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    Ruth Carter

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  • Proving Consent Under the GDPR

    “Consent Is Sexy” by Charlotte Cooper from Flickr (Creative Commons License)

    The General Data Protection Regulation (GDPR) goes into effect on May 25, 2018. According to this new law aimed at protecting individuals’ privacy and their personal data, all companies that send commercial emails to any person living in the European Union must obtain a person’s consent to collect and process their data – and be able to prove it. This applies to anyone who collects and processes data from persons living in the EU, including non-EU companies.

    The key to compliance is specific explicit consent.

    Double Opt-In Required for Email Lists

    If you have an email list, the GDPR essentially requires you to use double opt-in when adding someone to your list. This will help resolve the problem of companies adding people to their mailing list without consent.

    So many times, when I’ve sent a question, bought a product, or dropped my card in a company’s drawing for an iPad at a conference, my inbox has been bombarded with the company’s newsletter and “special offers.” We all agree this is poor form, right? If I want to be on your list, I promise I’ll add myself.

    It happened just this week. A new connection on LinkedIn sent me an email to invite me to coffee. While we were exchanging emails to arrange a meeting time, he added me to his list! When his newsletter hit my inbox, I let him know that adding me to his list violated Wheaton’s Law and he blew his opportunity to have coffee with me.

    Under the GDPR, you have to verify you’ve obtained consent to send someone commercial emails. This also avoids problems like someone adding you to a list without consent as a joke or to annoy you.

    Written Declarations of Consent

    If the data subject gives their consent in writing – perhaps at an expo at a conference or by filling out a form on your website, you must explicitly tell them what they’re signing up for. Their consent must be obtained:

    • On an easily accessible form,
    • Using clear and plain language, and
    • Distinguishable from other matters.

    This means consent cannot be buried in your terms of service or some other process or fine print.

    Right to Withdraw Consent

    One of the requirements of the GDPR is it must be as easy to withdraw consent as it is to give consent. Companies that comply with the U.S.’s CAN-SPAM Act know that every email  they send “must include a clear and conspicuous explanation of how the recipient can opt out of getting email from you in the future.” Email services, like Mail Chimp, already have this feature by automatically including an “Unsubscribe” link in every newsletter its users send.

    Here’s more on the consent requirements for the GDPR:

    If you want more information about GDPR, please watch this site and my YouTube channel because I’m creating a substantial amount of content on this topic. You can also send me an email (Note: I can’t give advice to non-clients). I use my mailing list to I share my thoughts about being a lawyer/entrepreneur, updates about projects I’m working on, upcoming speaking engagements, and I may provide information about products, services, and discounts. Please add yourself if you’re interested.

    You can also connect with me on Twitter, Facebook, YouTube, or LinkedIn.

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    Ruth Carter

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  • If You’re Going to “Wing It” as an Entrepreneur

    “Yay!!” by Subharnab Majumdar from Flickr (Creative Commons License)

    Plenty of entrepreneurs start out as a person or two, a business idea, and a shoestring budget. They know their craft but have limited or not experience starting or running a business. They don’t know what they don’t know – and that’s what gets them into trouble.

    Many entrepreneurs employ the “we’ll learn as we go” approach to operating a business. Often times these are smart people, but if they get too focused on doing their business that they don’t take care of business within their operation, it can lead to costly mistakes: thousands of dollars in legal expenses and painful heartache to try to fix a problem that was completely avoidable.

    Real-Life Facepalm Moments
    I’ve had countless times where a business owner comes to me for help and I cringe and think, “We could have helped you avoid this if you had come to us sooner.” This is just a sample of my facepalm moments as a lawyer:

    KAWS “At This Time” Sculpture by Guilhem Vellut from Flickr (Creative Commons License)
    • Owners who don’t create a business entity: put their personal assets at risk if the business gets sued;
    • LLC with multiple owners and no operating agreement: painful business “divorce” when things didn’t work out between owners;
    • Filing a trademark application with the USPTO that wasn’t trademarkable: the application might have had a chance if the description of the products and services was written more effectively;
    • Not filing a trademark and your competition files a trademark application that’s confusingly similar to or the same as yours: costly to make a claim against them and it may not be successful, which could force you to rebrand even though you were using it first;
    • Flawed customer contracts: doesn’t fully protect the company’s interests or address all likely contingencies;
    • Hiring a third-party contractor without a contract: if the person is hired to create an original work for the company, the company won’t own the copyright in what they hired the person to create and may have to pay to acquire it;
    • Working without a contract: so many problems. Whenever I get a call about a business deal gone bad, my first question is usually, “What does your contract say?” (Ideally, you want to be in a situation where, if the other side doesn’t perform as you agreed you can essentially respond with, “F*ck you, pay me.”)

    If You’re Going to “Wing It”
    If you are starting a business, my unsolicited advice is “Do your homework.” Invest the time to learn what goes into running your business and figure out what you don’t know. Reach out to established entrepreneurs to ask for their advice and avail yourself to resources in your community. In Arizona, we have dozens of these organizations like Arizona Small Business Association, Local First Arizona, and SCORE.

    Even if you don’t think you can afford it, look into hiring a business and intellectual property lawyer for an hour. Bring them your ideas of what you want to do, and ask for their recommendations on how to make it happen. A good lawyer will respect your budget and tell you what you can do yourself and what you should hire a lawyer do for you. They can also recommendations resources to help you based on their experiences helping others.

    If I’ve learned one thing as a lawyer it is that it’s easier and cheaper to prevent problems than to fix them.

    True Story
    Years ago, I worked with a new company where the owners hired me to create their operating agreement. I asked a lot of questions about things like intellectual property rights, compensation, and worst-case scenarios (e.g. disability of an owner) to create custom provisions for this document.

    A few years later, the owners realized it wasn’t working out between then and decided to part ways. Their operating agreement dictated how they would address this situation, and they hired us again to revise the agreement to account for the exit of one of the owners. The process was professional, respectful, and cost-effective. I’m sure there were hurt feelings on both sides, but having this operating agreement helped the owners mange them and made for a smooth transition.

    If you want more information about the legal dos and don’ts of starting and running a business, you can send me an email (Note: I can’t give advice to non-clients), and I maintain a mailing list where I share my thoughts about being a lawyer/entrepreneur, updates about projects I’m working on, upcoming speaking engagements, and I may provide information about products, services, and discounts. You can also connect with me on Twitter, Facebook, YouTube, or LinkedIn.

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    Ruth Carter

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  • The 10 Legal Commandments of Entrepreneurship

    “Stained Glass Window Full of Light and Color” by Stock Photos for Free from Flickr (Creative Commons License)

    Since becoming a lawyer in 2011, I’ve had the privilege of working with businesses on a variety of legal issues. Looking back at some of the most cringe-worthy moments I’ve experiences I’ve had and heard about from other business and intellectual property lawyers, I’ve come up with a list of the 10 legal commandments of entrepreneurship:

    1. Thou shall have a business entity.

    When you start a business, create a business entity – an LLC or corporation. Your accountant can tell you which option is best for you. By separating the business from your personal assets, you limit your personal liability if the business is sued. If you open a business without an entity (aka a sole proprietorship), you don’t have this layer of protection.

    2. Thou shall maintain your corporate veil.

    Creating a business entity is how you begin to limit your liability, and you perfect that protection with a “corporate veil.” This means having a separate bank account and credit card for the business, and the business accounts pay for business expenses and your personal accounts pay for personal expenses. This creates a clear delineation between where the company ends and the person begins in terms of your finances. If the company is sued and loses, it’s clear which assets belong to the company and your person assets are protected.

    3. Thou shall have a signed contract at the beginning of a business relationship.

    When you are hired by a client or hire someone, start with a signed contract. A contract is a relationship-management document. It is your master document that puts everyone on the same page regarding their responsibilities. This will help you avoid confusion and resolve problems. When a client comes to me with a problem with a customer, I often start by asking “What does your contract say?”

    4. Thou shall be thoughtful and careful about looking online for a contract template.

    Looking at templates online is a good place to get ideas about terms you might want to have in your contract, but don’t indiscriminately use any contract you find. You don’t know where it came from or whether it’s suitable for your needs.

    5. Thou shall take the time to fully read and understand a contract before signing it.

    Never be afraid to ask questions or request changes when considering a contract offered to you. Don’t sign anything you don’t understand, because if you sign it and later regret it, you may be stuck with it.

    6. Thou shall respect others’ copyrights.

    Do not use others’ work without permission. Create your own original content. It’s ok to be inspired by and quote others, but add something to the conversation. If we’re talking about images, do not pull any image you find using a regular Google search. Seek out sources that provide licenses for use, including images available under Creative Commons. If there is an image you want to use that’s not available, contact the copyright holder and ask for permission. To date, I’ve never had anyone say, “No.”

    7. Thou shall check the USPTO before branding a company or product.

    When entrepreneurs think “branding,” lawyers think “trademark.” The United States Patent and Trademark Office (USPTO) has a database where you can see what company names, product names, and logos others have applied for and registered for their products and services. You don’t want to fall in love with, or invest a lot of time and money in, a branding idea to find out that it’s already been claimed by someone else.

    8. Thou shall outsource your taxes.

    Every entrepreneur needs an accountant. Let them do what they’re good at.

    In the time it would take you to try to do your own taxes, you could make more than enough money to pay an accountant to do your taxes for you.

    9. Thou shall consult thy attorney.

    Even when you want to do things yourself, talk to your lawyer to make sure you’re not setting yourself and your business up for future problems. My most cringe-worthy moments as a lawyer have been problems clients created for themselves that we could have helped them avoid completely if they had told us what they were thinking about doing. It is easier and cheaper to prevent legal problems than to fix them.

    10. Thou shall act with integrity.

    Put your energy into your own business, creating quality products or services for your audience.

    You don’t need to stoop to bad-mouthing the competing, using trademarks that are confusing similar to others, or ride other’s coattails by doing things like using a web domain that will allow you to pull an audience based on someone else’ popularity (e.g., cybersquatting). Be so good at what you do that you don’t need to use others to make a name for yourself.

    One last note: If you’re an entrepreneur, don’t be afraid to ask for help. Accountants help you make money, lawyers help you keep it, and your peers will share their experiences so you can learn from them. If you are an entrepreneur, or have plans to become one, I hope you have people around you who can help you be successful.

    If you want additional information about the legal dos and don’ts of starting and running a business, I maintain a mailing list where I share my thoughts about being a lawyer/entrepreneur, updates about projects I’m working on, upcoming speaking engagements, and I may provide information about products, services, and discounts. Please add yourself if you’re interested. You can also contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn.

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    Ruth Carter

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  • Can You Afford to be an Entrepreneur?

    Money Unfolding by CreditCafe.com from Flickr (Creative Commons License)

    When I decided to launch this law firm, a good friend and fellow entrepreneur/lawyer warned me: “You’re going to need 6 months’ worth of money and 12 months’ worth of patience.” He was right. Fortunately, I had nearly 3 months from deciding to opening my practice until our first day in business, which gave me time to research and formulate my offerings and tap into community and professional resources to get my business off the ground.

    Other entrepreneurs aren’t that lucky. They may not have the time and/or money to consult counsel prior to launching a new venture. Even on a condensed time frame or on a shoestring budget, your legal needs should be part of the discussion and plan.

    Full-Time Venture Needs Financial Backing
    If you want your new venture to be your full-time job, you need to be prepared for the potential financial strain that comes with that undertaking if you don’t have a spouse or other income supporting you in the meantime. You may have the gift of time, but you can only operate your business as long as you have income or savings to cover your bills. I don’t recommend jumping into a new venture without some type of financial safety net.

    For entrepreneurs starting with a side hustle, you have the opposite issue. Your regular job can pay your bills while you develop your business, but it limits how many hours you can work. And depending on your circumstances, you job may not provide much money to put towards your business after paying your bills.

    Make the Business Fund Itself
    While every business needs some seed money to get started, make your business fund itself. When you decide to start a business, make a list of all the services, equipment, and supplies you think your company needs. Then step back and categorize each item as “Must Have” or “Nice To Have.” Ask a trusted colleague or friend to review your list and challenge you on what you need.

    Many businesses don’t need much to get started. When I started this firm, I only needed an LLC, client contract templates, computer, scanner/printer, website, email address, phone number, and business cards. I gave myself a limited budget for supplies, bar dues, and to pay for my LLC and my accountant, and after that, I didn’t buy anything for the business until the business could afford it. (Even if my personal account could afford it, I made myself wait until the business could afford it.) It forced me to be scrappy, creative, and thoughtful about how I spend my money. It’s something I recommend to other entrepreneurs, including seeking out low-cost and free options when appropriate.

    Prioritize
    I regularly receive emails from people who need help with the legal side of starting a business, and some of them claim that they can’t afford an hour of legal services. Sometimes I wonder if these entrepreneurs didn’t do any research into the expected costs of a consult, contract, or trademark when creating their business budget. (When people can’t afford my firm, I’m happy to provide referrals to other options and/or tell them what things they can do themselves – like filing an LLC with the Arizona Corporation Commission. The forms and instructions are online.)

    A fellow entrepreneur suggested that these potential clients don’t see value in paying for quality legal services. That sounds plausible. Many new entrepreneurs are focused on their expected success that they don’t want to ponder the what-if scenarios. In many ways, quality contracts and other legal services protect you when things go wrong. You often don’t need to rely on them when things go right.

    My recommendation for all new entrepreneurs is to meet with a business accountant and a lawyer to make sure you’re starting out on the right foot, and that you understand the legal implications of your venture. If you have questions about business needs, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

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    Ruth Carter

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  • B2B Contracts Don’t Work in a B2C World

    “Rabo Bank” by bertknot from Flickr (Creative Commons License)

    Over the years, I’ve seen a number of entrepreneurs try to adapt a B2B contract template to use in their B2C business.* This is like using a hammer to tune a piano – they’re using the wrong tool for the job. I just doesn’t work. Entrepreneurs who have B2B clients or B2C clients have similar needs when it comes to their service contracts, but the nature of the relationships are drastically different. (The reverse is also true – don’t try to adapt a B2C contract for use with B2B clients.) There are several reasons to not use a B2B contract with B2C clients:

    You’re Going to Scare Your Clients
    If your clients are Joe Average people, not entrepreneurs, a heavy-duty business contract is going to scare the bejezus out of them. I would be worried that they will be intimidated or confused by the verbiage.

    A contract is a relationship management document. The purpose is to put everyone involved on the same page. Ideally, your contract will have all terms outlined in a single document so that either side can refer to it when they have a question. And contracts don’t have to be in legalese to be effective; I recommend using plain English and keeping the terms short and simple whenever possible. The goal is to prevent confusion, not create it.

    A well-written contract can build rapport with your client. An effective contract will lay out the value you’re giving them and provide security in regards to how you perform the scope of work. A poorly-written or confusing contract may make a client apprehensive about hiring you.

    Unnecessary Provisions
    There are provisions that may be essential in a B2B contract that would be absurd to include in a B2C contract template, such as an independent contractor provision. I’m pretty sure the Smith family knows when they hired you to take their portrait, that they knew they weren’t hiring you as an employee. Likewise, non-solicitation and non-compete agreement would be bizarre in a contract for consumers. The nature of the relationship often doesn’t warrant provisions like this.

    When I write a contract template (B2B or B2C), I start by trying to envision the full relationship between the parties, how they’re going to interact, what each side is giving and receiving from the relationship, and what my client’s pain points and concerns are. That gives me a starting point for writing an effective contract that fits their needs and addresses common problems in advance.

    The Value of B2B Contracts for B2C Companies
    There’s nothing wrong with an entrepreneur using a B2B contract as part of their research for what they might need for their business. It can provide ideas for what terms or phrasing they may want to use. Additionally, there are some terms that are frequently found in B2B and B2C contracts, such as scope of work, payment, intellectual property, and dispute resolution. Note: even when the headings in the contracts are similar, how the provisions are written may vary vastly based on the needs of the situation where they are used.

    If you need a contract for your business, don’t just use a contract from a fellow entrepreneur. Instead, if you get a template, have a lawyer review it to make sure its suitable for your needs. They can also fill in gaps in your provisions and ask questions you didn’t think to consider. And if you have business that does B2B and B2C work, consider using different contract templates to suit the needs of your clients.

    A contract template is an investment in your business. If you sign a contract and later regret it, you may be stuck in that situation. If you have questions about your contract needs, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

    *B2B = Business to Business
    B2C = Business to Consumer

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    Ruth Carter

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  • Avoid Litigation: Contracts and Timing

    Water wheel close-up by Edward Webb from Flickr (Creative Commons License)

    The most efficient way I’ve seen to avoid problems in a business contract situation is to set up the relationship between the parties in such a way that each side is forced to perform to get what they want from the other side. Just like a water wheel feeds the machine that keeps the wheel turning, the parties should be compelled to give the other side what they need.

    Contract = Relationship Management Document
    A contract is a merely a document that outlines a relationship between parties – what each side must do, and what they get in return. Every contract should have a dispute resolution provision that outlines how the parties will resolve problems if they occur. In a perfect world, the parties will never need to resort to this clause.

    While a good contract will have a thoughtful dispute resolution clause, a great contract will structure the parties’ relationship in such a way that neither side can fathom breaching it.

    Structure the Relationship to Feed Everyone’s Needs
    When I begin work on a new contract, I ask my client to paint me a word picture of the people involved and the relationship between them. I try to understand not only what each side is giving and getting, but also their motivations.

    One of the obvious potential problems in a contract relationship is that one side will perform their part to the benefit of the other, and the other side doesn’t reciprocate as required in the agreement. This may be situation where one side takes your money and runs, or conversely, you do work for your client and they don’t pay you after they’ve received your work product.

    The best way to avoid this situation is to set up the work flow so that each side doesn’t get what they want until the other side has done what they promised to do. For many entrepreneurs who are professional creatives, I recommend that they write their contracts to state that the client won’t receive the final product until their bill has been paid. Likewise, for photographers, I recommend that the contract state that the client won’t see the proofs until they’ve paid for their shoot in full.

    Please Pay Here by Steven Depolo from Flickr (Creative Commons License)

    Real Life Example
    I recently worked with a graphic designer who is a smart entrepreneur with a brilliant contract. I’m creating my first online course and hired her to create the logo. Per our contract, I paid 50% up front and she got to work. She designed me a brilliant logo that fits the course and my personality. She said she’d send the final files when she received the balance.

    That email came at the beginning of a week when I wasn’t home where the company checkbook lives. I told her this and she said she didn’t mind waiting until I could send payment. (Did I mention she’s a friend?) I was happy she held her boundaries to make sure she got paid before she sent the final work product. It’s not that I wouldn’t have paid her, but it was the right thing to do as a business owner.

    If you choose not to write your contract with these provisions, you may be in a situation where you have go after the other side for payment or performance, possibly hiring a lawyer to write a demand letter, or taking the other side to court. If it’s a relatively low-dollar amount, you may end up in small claims court where you may get a judgment in your favor, but you still need to collect and the amount of time and energy involved to go through the process may make you question whether it was worth it.

    This is why a good business lawyer is an investment for your business. They can see the potential pitfalls in your business and help you avoid them and advocate for your rights when necessary. If you need help with writing a contract that fits the needs of your business, you can contact me directly or a social media lawyer in your community. I post about these issues on Twitter, Facebook, YouTube, and LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

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    Ruth Carter

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  • Trademark Rights in Website Domains

    Business Entrepreneurs by Airsoftpal.com (Creative Commons License)

    I regularly get questions about whether a person should use a business name based on whether their desired website domain in available. There is also the reverse – if a company has a registered trademark, is it a deal-breaker if you want to use a similar name for your business? For example, if a company has a registered trademark for The Ooga Booga and the domain theoogabooga.com for their children’s book series, does that mean you can’t have the domain, oogabooga.com for your business?

    Ooga Booga is my default fake trademark when describing trademark concepts. As of this writing (3/5/2017), no one has a registered trademark in the U.S. for “Ooga Booga.”

    Two Parts to a Trademark
    There are two elements to every trademark – the mark itself and the product or service with which you are using it. It’s possible for two different companies to use the same trademark so long as the products and services with which they are using it are so different that no consumer will be confused about what they’re buying. That’s why it’s possible to have Delta Faucet, Delta Airlines, and Delta Dental. No one would think these products and services come from the same company.

    Do your Homework when Selecting a Domain
    When it comes to selecting your company or product name and the corresponding domain, be thoughtful. Do you some searches to see if other companies have similar domains and how they are using them.

    If you see someone using a domain that is similar to yours, or a product or company domain that has a corresponding registered trademark, it’s not necessarily a deal-breaker for your business plans, but you may want to do further research. There’s nothing wrong with two companies have similar websites as long as you have a legitimate reason for using it and you’re not violating the other company’s rights.

    Let’s say you wanted oogabooga.com as your website, examine the difference between your product or service and the registered trademark for The Ooga Booga. They sell children’s books; so as long as your product or service isn’t in the arena as children’s entertainment, education, or related products, you could be ok. Most likely, no one will think that your affiliated with this other company if you’re selling something like wetsuits, wine, or financial planning services.

    If you’re in a situation where you don’t want other companies having a similar domain as yours, spend the money to buy these other domains. It’s cheaper and easier to have a slew of domains related to your product rather than invest time and money monitoring, sending cease and desist letter, or pursuing other legal action against these other companies.

    Only the Trademark Holder is a Threat
    The good news in this type of situation is only the person who owns the trademark or other intellectual property rights can go after you for suspected infringement. If they don’t know or don’t care about what you’re doing, you face any legitimate legal threats.

    Of course, when in doubt, consult a trademark lawyer to discuss your thoughts about your business or product name and website domains. If you’re interested in discussing your trademark needs, you can contact me directly or an intellectual property lawyer in your community. I regularly post about legal issues impacting entrepreneurs on Twitter, Facebook, YouTube, and LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

    More Information about Trademarks:

    Photo credit: Airsoft Pal

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    Ruth Carter

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  • Contract Amendments – Always in Writing

    Signature by Sebastien Wiertz from Flickr (Creative Commons License)

    When a lawyer writes a contract for a client, it usually includes provisions that say that the all the terms of the agreement are contained in the document and all changes to the contract must be in writing. It may look something like this:

    This Agreement is the entire understanding between the Parties concerning the subject of this Agreement. This Agreement replaces and supersedes any and all prior oral or written agreements and discussions between the Parties on that subject. All amendments to this Agreement must be in writing and signed by the Parties.

    Contracts are relationship management documents. They keep everyone on the same page to prevent problems down the line or to help resolve problems when they occur. One of the challenges I encounter with contract clients is they often don’t follow the contract they signed and amend the agreement that is documented only in an email exchange, or worse, a undocumented verbal agreement.

    Always Get It In Writing
    The purpose of the “entire agreement” clause is to put all the terms of the contract in a single document. All written amendments should be stored with the original agreement – in hard copy and/or electronically, so if there is a question or dispute, the parties only need to review the single or amended document. They don’t have to piece together the contract from the parties’ communications and actions.

    If you don’t get your amendments in writing, you’re asking for trouble. There could be confusion about what the change is, or worse, the other side could deny the existence of an amendment and screw you over. Remember, the law does not care about what you know, only what you can prove. If you don’t get your amendments in writing, and you have an “entire agreement” clause, if you have to go to court, the judge could say the amendment doesn’t exist.

    Contract Amendments Can Be Easy
    Why don’t people put their contract amendments in writing. I suspect it’s because they think it will be a hassle, cause a delay in a project, be time-consuming, or maybe they don’t even think to put in it writing because “it’s not a big deal.” In general, contracts exist, not for when things go right, but when they go wrong. What you think is a minor verbal change when both sides are getting along can become a big problem if things turn sour.

    If you spend $100s or $1,000s to have a lawyer draft your contract, don’t revise it without their involvement. You’ve invested time and money to protect your interests. You don’t want to inadvertently throw that away with a damaging and undocumented revision.

    Contracts are your Friends
    These are some of my guidelines when it comes to reading and drafting contracts:

    • Never sign a contract you don’t understand. Don’t be afraid to ask for clarification.
    • Whomever writes a contract does so for their or their client’s benefit. Keep that in mind when a contract is written by the other side. (Lawyers have an obligation to represent their clients zealously.)
    • Substantial business contracts should always be reviewed by a lawyer to ensure it’s complete and protects your interests.

    A contract should be written to protect everyone involved – to make sure everyone understands and agrees to the same course of action.

    I’m constantly reviewing and drafting all types of contracts for clients. If you want to keep up with what I’m doing or if you need help, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

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    Ruth Carter

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  • Legal Issues with Open Photoshoots

    Parkwood Photography Studios, used with permission

    Last week, I went to an open photoshoot/happy hour at Parkwood Studios. (They have a gorgeous space!) It’s a free monthly event for photographers and models of all skill levels and experience. There was an area set up with lights where anyone could model and shoot photos. The purpose is to give everyone an introductory experience working with a model in a studio environment. There was not a model release or TFP agreement for this event.

    I went to this to network and to model. As a lawyer, I knew what I was getting into in regards to copyright and image rights. Of course, my analytical brain couldn’t stop strategizing what I’d do to integrate legal protection and information without disturbing the spirit of the event.

    Who’s At Risk, Who’s Protected
    There are three groups who should be interested in protecting themselves at an open shoot: the models, the photographers, and the studio. If I represented a studio that hosted an open shoot, I’d recommend having a release that states the studio is not responsible for anyone’s behavior. If there’s a dispute between a model and a photographer, that’s an issue to be resolved between the two of them.

    One of my images from the open shoot. I look like a action hero.

    Model Release and Copyright Notice
    Even in the photography/modeling industry, a lot of people do not understand copyright and image rights. In an open photo shoot, the model and photographer exchange their time, talents, and the opportunity to practice their respective crafts. Unless stated otherwise in a written agreement, whomever took the photo owns the copyright.

    The expectation at these events is that photographers and models exchange contact information so the photographer can share images with them, and that the models are allowed to put the images in their portfolios or share on social media. I suspect the studio would also want a license to the use any images taken at the event that they receive or that are posted to their social media to promote future events or the studio.

    No Guarantees
    The one of the complaint I heard from past events is models saying a photographers who took photos of them never sent any images. While that is poor form, the only way I can think to legally work around this is to have a “no guarantee” clause. There’s no guarantee the photographer will send the model photos and there’s no guarantee the photographer will get the shot they want.

    Code of Conduct
    Since this is an event for all experience levels – including fledglings – I recommend having a code of conduct that applies to everyone and the studio’s equipment. This would include basic things like “Always ask permission before touching a model,” “Don’t touch the lights or any equipment that’s not set up for use at this shoot,” “Give constructive feedback,” and “Be respectful – we’re all here to learn and have fun.” A lot of these are common sense, but it’s good to state the obvious for people for whom it might be their first time shooting in this type of environment.

    For studios like Parkwood that host regular events, I suggest creating reusable poster-sized copies of the rules and release and put it on the door leading to the photoshoot area with a notice that says by entering the room, you agree to these expectations. For anyone who wants to shoot photos or model, put a clipboard with a dated copy of the agreement and a signature page where everyone must agree to the rules before they’re allowed to participate. This serves multiple purposes:

    • It gives photographers and models experience with reading and signing these agreements.
    • It creates expectations and helps avoid conflict for all involved.

    I get questions every day about photography, image rights, and copyright. For anyone who works as a photographer or model, it’s imperative that you understand these topics. Many disputes can be avoided with well-written contracts and accurate information. I’m constantly doing work in this area, so if you want to keep up with what I’m doing or if you need help, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

    Lights Camera Lawsuit

    There’s always a need for quality legal information for photographers. That’s why I created an online course called Lights Camera Lawsuit: The Legal Side of Professional Photography to address photographers’ most important questions. I want you to feel secure in your business, confident in the way you operate day-to-day, knowing that you’ve set yourself up to get paid what your worth without incident.

    At $497, the course contains nearly six hours of legal information you can immediately apply to your business. That’s less than what I charge for two hours of legal work for clients!  

    Please subscribe for more information and to make sure you don’t miss out on any special offers or discounts.

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    Ruth Carter

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