Tag: Arizona contract attorney

  • F*cking Up my Contract for Content Marketing World 

    I’m excited to go back to Cleveland for CMWorld!

    Content Marketing World (CMWorld) is one of my favorite events every year. They have the best of the best speaking about what’s working with content marketing.

    Like every year when I have the privilege of being a speaker, I’m required to sign a contract. They recently sent me a link to the speaker contract landing page where I signed with my electronic signature. I signed the contract as it was written, but it inspired me to create a revised version. Some of the provisions I added were meant to be humorous, and others were added to fill gaps in the contract’s verbiage. I sent the revised contract to CMWorld, and they thought it was funny.

    Re-writing my friends’ real contracts has become one of my new hobbies. I keep these documents in a folder on my computer entitled, “Let’s Fuck Up Contracts.”

    Below are some of the provisions in the original CMWorld contract I signed followed by how I revised them.

    It’s ironic that I mostly revised it in ways that would benefit the event. Historically, when I’ve revised a contract I’ve been asked to sign, I do so in ways that only benefit me – like when I revised the liability waiver for a race so I could sue the organizers if they ran me into oncoming traffic or something. As a lawyer, I draft contracts based on what’s in my client’s best interests, which again, is not this situation.

    Compensation

    In CMWorld’s Original Contract:

    For my participation, I will be provided:

    • (1) Pass to the main event including admission to all main conference sessions, networking functions, and workshops.
    • (1) Complimentary access to on demand videos for up to one year following the event.

    How I Revised It:

    For my participation, I will be provided:

    • One (1) Main Conference Pass allowing access to all sessions at the Event including all networking functions and conference workshops,
    • One (1) Complimentary Pass to all sessions on demand for twelve (12) months following the Event,
    • Copious amounts of hugs and high fives from the Event team, as long as I’m not creepy about it,
    • First dibs to pet the dogs at the Yappy Hour event where there will be no less than four (4) rescue dogs; and
    • Access to the Event speaker lounge that will be stocked with hot and cold caffeinated beverages; ice cold sparkling water with lime; a selection or orange-colored candies, including, but not limited to M&Ms, Reese’s Pieces, Skittles, Starburst, and Mike & Ikes, each in a separate container (because mixing them is gross); and at least thirty (30) power outlets. 

    Power outlets are in high demand in the speaker lounge. Also, CMWorld has not said whether or not they will have a Yappy Hour at this year’s event. And just so there’s no confusion, I = me, Event = CMWorld, and Informa is the company that owns the Event.

    Photo by 3V Photo (Creative Commons License)

    No Selling From the Stage

    In CMWorld’s Original Contract:

    The Event is an educational event, not a sales or marketing platform. Informa is retaining me to provide an objective presentation that meets the educational needs of the Event attendees.  Informa may revoke my speaker invitation at any time if in its sole judgement that is in the best interests of the Event.

    How I Revised It:

    I grant to Informa a worldwide, non-exclusive, royalty-free, perpetual license to copy, distribute, display, and make derivative works using all materials and recordings of and related to the speaking engagement, in whole or in part, in any Informa anthology, compilation, or educational publication of materials associated with the Event, including without limitation any format, including those that haven’t been invented yet. I acknowledge and agree that this license is assignable and sublicensable without any limitations.

    I also added in the following: Moreover, if Informa is accused of wrongdoing for using any rights licensed to it by me herein, I, or my employer where possible, will indemnify and reimburse all its legal costs, including associated damages, for resolving the matter.

    Photo by JD Hancock (Creative Commons License)

    Dispute Resolution

    In CMWorld’s Original Contract:

    This Agreement and Release is governed by California law. Choice of law rules do not apply, regardless of jurisdiction.

    How I Revised It:

    Even though Informa is a UK company and the Event is in Ohio, I acknowledge and agree that this Agreement and Release is governed by California law and all disputes regarding this contract will be resolved in a court located in Los Angeles County, California. Choice of law rules do not apply, regardless of jurisdiction. Furthermore, I acknowledge and agree that, in a dispute, the non-prevailing party will be responsible for the prevailing party’s attorneys’ fees and cost.

    Other Terms I Added

    Entire Agreement: This contract contains the entire agreement between myself and Informa regarding my participation as a speaker at the Event, regardless of any discussions to date or in the future. Any modification must be in writing and signed by both parties.

    Force Majeure: I acknowledge and agree that neither Informa nor the Event, their employees, contractors, directors, affiliates, or lawyers (because the lawyers always cover their asses as well as their clients’) shall not be liable for damages or any inability to perform under this agreement, which is directly, or indirectly, caused by circumstances beyond their control, including, but not limited to, natural disasters, inclement weather, acts of god, acts by other deities, illness, plague, fires, alien invasion or abduction, floods, riots, strikes, government orders or recommendations, if someone releases a kraken, or any other justifiable conditions outside of Informa’s or the Event’s control.

    I’d expect every event to have a force majeure provision, especially with the COVID pandemic. This is particularly true if the event is at a third-party venue where the event would likely need to be cancelled or rescheduled if the location were no longer available due to a catastrophic event like a fire or earthquake.

    Learn More About Contracts – for Free!

    Earlier this year, I created a mini course for The Tilt called What Content Creators Need to Know Now to Avoid Legal Trouble. It’s a quick 20-minute overview of what content entrepreneurs need to understand about contracts, including how to read a contract and suggested terms to include in your own contract templates.

    Stay Connected

    If you’re interested in reading insider information about my experiences as an entrepreneur and special features you won’t find on any of my blogs, please subscribe to Ruth and Consequences.

    To my fellow CMWorld speakers: If we have containers of different types of orange-colored candies at this year’s event, you’re welcome.

    •

    Ruth Carter

    •

    , , , , , , , , ,

  • Funny but Binding Contract Terms for Late Payments

    “Pizza” by stu_spivack (Creative Commons License)

    One of the biggest challenges facing small businesses seems to be getting clients to pay their bills. Dealing with non-paying clients or delinquent clients is one the most common complaints I hear about from other entrepreneurs. Your first line of defense against these people is in your contract.

    Create an Upside When Clients Don’t Pay – in Your Contract

    You can put anything you want in a contract, as long as it’s legal. (This is why you can’t have a legally binding contract to buy/sell heroin or a human kidney.) Most contracts include a provision about a late fee, so if your client is late in paying you, you can make them pay more, up to the maximum interest rate allowed by law.

    If you are a professional creative, such as a website developer, graphic designer, or photographer, you can put in your contract that you won’t give the client the final deliverables until they’ve paid the balance on their account. This is an effective way to hold your clients’ financial feet to the fire.  

    Don’t Publicly Shame Your Clients

    No matter what you put in your contracts, don’t shame your clients for being late in paying their bill. Don’t put in a provision that says if they’re late, you can put up a sign or billboard, or hire a skywriter to tell the world that the client didn’t pay their bill. That doesn’t help anything. That could easily backfire because it makes you look like a jerk.

    I had some ideas that aren’t publicly shaming, but still could make you look worse than your non-paying client if it became public information, like including a provision that says, if you’re more than 90 days late, every time we send you a reminder, the subject line will be, “Hey Asshole! Pay your bill!” As validating as that might be in the moment, it probably wouldn’t be an effective strategy for getting referrals, or even getting them to pay.

    Free Ideas for Revising Your Contracts

    Recently, I wondered what else a company could put in their contract that would encourage clients to pay their bill and have an upside for the company. For the purpose of these suggestions, “you” and “your” refer to the client and “we,” “us,” and “our” refer to the company.

    • If you’re more than 30 days late paying your invoice, you agree that you will pay for an office pizza party for us every Friday, and we will add the amount to your unpaid invoice as well as send you a photo of us eating pizza.
    • If you’re more than 6 months late paying your bill, we will send a hug-a-gram to your office reminding you to pay us. (It’s like a singing telegram, but instead of singing, they hug you.) We will add the amount of their fee to your unpaid invoice along with a substantial tip.
    • For a web designer: If you are 30 days late paying your final invoice, not only will we not launch your new website, you consent that we can commandeer your current site to promote the charity of our choice.

    Final Thoughts

    Having non-traditional contract terms is not a new idea. Lots of people have had seemingly crazy provisions in their contracts. I want to do more blog posts this year with sample verbiage for contracts that I would love to write, that would be legally binding, and not your traditional legalese.  

    I want to humanize contracts. I love writing contracts in everyday language. Your contract should be written in a way that you and your clients can easily understand it. If you want to hear more about what I’m doing in my business and practical legal tips to run yours more effective, please add yourself newsletter.

    •

    Ruth Carter

    •

    , , , , , , , , , , , ,

  • Six Ways to Work on Your Photography Business While in Quarantine

    “Lens Cleaning” by The Preiser Project from Flickr (Creative Commons License)

    I cringe every time I see a post about photographers and models teaming up to shoot during the COVID-19 pandemic when they should be social distancing and staying home. The only photographers who should be out shooting these days are the ones who are documenting the pandemic.

    My business mentor taught me that when you’re not working in your business, you should be working on your business. Here are 6 ways you can work on your business while sheltering in place.

    Edit Your Images From TFP Shoots

    Models frequently complain that they rarely get images from open TFP shoots. They held up their end of the bargain. Now it’s time for you to do yours.

    Brainstorm and Research Future Projects and Collaborations

    Now is a good time to reach out to models you want to work with and research ideas for shoots you want to do when the Shelter In Place orders are lifted. There are lots of online groups where you can network with other photogs and models.

    Create Your LLC

    Are you still a sole proprietor? <shiver> Please fix that. No entrepreneur should be without a business entity for their company.

    In most states, you can create a business entity online. Look up your state’s Secretary of State Office or Corporation Commission.

    Review or Create Your Legal Documents

    Do you have templates for your client contracts, model releases, and copyright license? If not, now you have the time to create them. If you have them, can you remember the last time your reviewed them? If not, now would be a good time to do that. A lot of people are double checking that they have an effective force majeure provision in their agreements.

    If you want to respond to suspected copyright infringement by sending a cease and desist letter, now is the time to create an epic C&D template so you’re ready to lay the smack down on anyone who violates your rights.

    Update Your Website

    I bet it’s been a while since you did that. Make sure it accurately reflects your style and strengths. Even I’ve spent time while sheltering in place, updating this site.

    Clean Your Gear

    Now you have the time to clean your gear, including cleaning out gear you no longer use. Get your gear serviced if your camera shop is still open. Don’t forget to go through your memory cards and get rid of images you’ll never do anything with.

    If you can’t resist the urge to pick up a camera, please limit yourself to shooting still life, self-portraits, and/or shooting at home with members of your household. You can also work on your craft by re-editing older photos and taking online trainings on various techniques and skills.

    Lights Camera LawsuitTM

    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. It’s 23 lessons, nearly 6 hours of legal information, with tons of information about contracts and copyright. 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.

    The course is $497, but until June 1, 2020, you can get it for 20% off with promo code thrive20.

    •

    Ruth Carter

    •

    , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

  • Lights Camera Lawsuit Pre-sale Starts Tomorrow!

    “Fireworks” by Epic Fireworks from Flickr (Creative Commons License)

    I’m nearly pee-my-pants excited because the pre-sale for my first online course, Lights Camera Lawsuit: The Legal Side of Professional Photography starts tomorrow! I’ve been working on this for well-over a year, and it’s so close to finally coming to market.

    I’ve spent the last week promoting the bejezus out of this, and I’m so pleased that the response has been so positive:

    Looks like a powerful product… I’m sure it will prove very popular!

    Super good idea, and i love the curriculum.

    Sound like a good (and much-needed) product.

    Just forwarded it to every photographer I know

    I will never stop being amazed at your entrepreneurial talents – what an amazing idea.  

    On the eve of the pre-sale, I wanted to respond to some of the questions I’ve received about this course.

    What inspired you to create this course?

    I’ve worked as a lawyer for eight years and a model for five. Basically, I’ve worked on both sides of the camera without having to touch one. I’ve seen there is a great need for quality information about photography law, and, unfortunately, most photographers can’t afford to hire a lawyer to help with all their legal needs. I’ve seen too many photographers make costly mistakes that were completely avoidable, particularly related to their contracts and copyright. I created this course to save other photographers from making the same mistakes.

    Why did you create a course instead of another type of product or event?

    There are three reasons. First, by creating a course, I can maximize the number of people I can help while keeping the price down.

    Second, the material in the course is evergreen (at least until the law changes), so I want it to be available when people are ready for it and looking for a reliable resource about photography law.

    Third, people who buy the course will be able to access it again and again, versus a live event which is a one-and-done deal. If there are changes to the law, I can update the lesson in question or add an additional lesson to the course, and everyone who had purchased it to date will get it at no additional cost.

    Does the course include contract templates?

    No, and here’s why – I’m not allowed to under the rules of my law license. However, the course includes the list of provisions I include in my contracts and lots of sample verbiage from real documents I’ve created for photographer clients.

    Where did the name Scarlet Maven come from?

    Scarlet Maven is the name of my superhero alter ego.

    Why did you have to create a separate business entity? What type did you create?

    I created a separate entity, Scarlet Maven, LLC, to make it clear that there will not be an attorney-client relationship with people who buy the course.

    On the advice of my accountant, I created an LLC for this business. LLCs are a great choice In Arizona, because they are basically set-it-and-forget-it entities. The state doesn’t require an annual report or fee. I don’t have to file anything with the state unless the company moves or dissolves.

    What aspects of the course did you outsource?

    Each lesson is going to be a screencast with a voiceover recording. I hired Elizabeth Fullerton at Boldfaced Design to create the templates for the PowerPoint slides.

    Additionally, because I have no artistic talent and only had a feeling about what I wanted my logo to look like, I hired Dina Miller at Square Peg Creative to create the logos for Scarlet Maven and Lights Camera Lawsuit.

    Both were money well spent. These ladies did a beautiful job.

    How have you been promoting the course?

    In addition to promoting the course through Scarlet Maven’s email list, I sent well over 500 individual emails to photographers, lawyers, and other professional creatives who might be interested in the course or who might know people who would be interested in the course.

    The promotion won’t end with the pre-sale. I expect Lights Camera Lawsuit will be a course I sell for years to come, so I’ll continue to look for opportunity to reach more people about it.

    What parts of this process were fun?

    Creating the outline for the course and each of the lessons was fun. So has been talking with photographers about their needs and what they hoped to get out of this.

    What new skills did you have to learn?

    This venture gave me the opportunity to learn some new skills. This was the first time I ever created a website with Squarespace. It’s quite different than working with WordPress, but not too hard once you learn the basics.

    This is my first online course, and I’m using Teachery for it. I was so glad and relieved to learn that this platform is super easy to use. I’ve also taken a number of courses that platform, so I know how easy it is for users as well.

    What challenges did you face?

    Scarlet Maven is my side business, so one of the challenges I faced was making time to devote to the business, create the course, and promote it. I still have my full-time job being a lawyer, writer, and speaker where I don’t always control when I have deadlines or when work gets dropped in my lap.

    The biggest challenge I faced, by far, with this venture has been managing my anxiety.

    • What if no one likes it?
    • What if no one buys it?
    • What if I screw up making it and it never gets to market?

    These are the types of fears I wrestled with on a daily basis. Sometimes they caused me to procrastinate working on the course. The best way I knew to manage them was to focus on the next task in front of me instead of being consumed by the bigger fears related to the course’s overall success.

    Lights Camera Lawsuit Pre-sale: February 14th-18th

    The pre-sale for Lights Camera Lawsuit: The Legal Side of Professional Photography will last only five days!

    Pre-sale Starts: Friday, February 14, 2020 at 8am AZ Time

    Pre-sale Ends: Tuesday, February 18, 2020 at 6pm AZ Time

    Pre-sale Price: $199 (60% discount)

    Please subscribe to make sure you don’t miss out on this fantastic pre-sale price. I’ll never offer this course at this price again.

    When the course goes live on March 16, 2020, the price will be $497. This is still a bargain for 10+ hours of legal information, but why pay more?

    •

    Ruth Carter

    •

    , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

  • How to Respond When a Client Violates Your Photography Contract

    ” Angry Face Krah” by bixentro from Flickr (Creative Commons License)

    Even when you do everything right as a photographer – signed contract, quality work, deliver the final images on-time, etc., you’ll still have to deal with clients who don’t comply with the contract terms such as being late with payment or alter the images (e.g. cropping them or applying filters) before posting them online.

    In these challenging situations, you have options.

    What Does Your Contract Say?

    The terms of your contract matter most when things go sideways. You want to make sure you have an air-tight contract that is clear about the client’s dos and don’ts, as well as how you’ll resolve disputes.

    When I write a dispute resolution clause for my clients, I frequently write one like:

    Parties will attempt to resolve the matter among themselves for 30 days. If the dispute is not resolved in that time, then all disputes will be resolved in a court located in [Your County, Your State]. The Parties consent to the personal and subject matter jurisdiction of this court. This Agreement is governed by [Your State] law. The Parties agree that the non-prevailing Party shall be responsible for the prevailing Party’s attorneys’ fees and costs.

    Actually, many times, I recommend that my clients have their dispute resolution clause to be based on where I live and Arizona law, because in the event of a dispute, my client will have to pay me throughout the dispute and hope for reimbursement from the other side at the end. It’s cheaper to resolve the dispute on your lawyer’s turf than to have to cover their travel expenses.

    Dial Direct

    When a client comes to me because their client violated a contract, I often advise them that they should contact their client directly first. Many people feel attacked and go on the defensive when a letter from the lawyer arrives, and they’ll ask, “Why didn’t you just contact me directly?”

    When you contact your client, be sure to give them an out, a way to save face, particularly if the client hired you for personal or family photos. They don’t likely understand things like copyright. It could be a casual message like:

    “Hey there. I noticed you did XYZ. I’m glad you’re loving the photos so much. I think you may have forgotten that our contract says ABC. Please remove the images by Date.”

    When you send the email, include a copy of the contract, possibly with the pertinent provision highlighted.

    If that a doesn’t work, the next email should be more forceful. (This may also be your opening response, depending on the client.) You want to clearly state that the person is in violation of the contract, and they must remove images by a specific date. Many times, I recommend including the sentence, “I hope we can resolve this matter without having to resort to lawyers.”

    If that doesn’t work, that’s when it’s time to have your lawyer to send a nastygram (cease and desist letter) on your behalf.

    Truth be told, frequently I’m the one who writes these emails for my clients to send. This way, the emails are legally accurate, which makes it easier if I have to get involved.

    Other Ways to Go After Illegal Image Use Online

    If a client posted images online that they weren’t supposed to, and you’ve posted them online somewhere, you can bypass your client completely and send a DMCA Takedown Notice to the website where the images were posted. This tactic only works for U.S.-based companies and companies that comply with these notices, since the Digital Millennium Copyright Act (DMCA) is part of the U.S. Copyright Act.

    To comply with the DMCA, the website has to remove access to the images. Note: It is easy for the client to send a DMCA Counter Takedown Notice to get the images restored. If you are concerned your client may do that, you may want to send them a note that doing so would constitute perjury.

    Images that Should Have Been Licensed

    Sometimes websites and/or paper publications ask the person in the image if they can use the photo without verifying who is the copyright owner. If this person is your client, they may be so flattered and excited by the offer, that they forget they don’t have authority to grant permission for the use.

    If this happens, and your photo is used without your permission, particularly if it’s a situation where you would have charged a licensing fee, the proper response is to contact the publisher and inform them of their mistake. You can even send them a bill with a letter that essentially says, ““By using my photo, you’ve agreed to our licensing terms” and include a copy of your standard license.

    “Beggar’s Sign” by Eli Christman from Flickr (Creative Commons License)

    Non-Paying Clients

    There are few things more frustrating for any entrepreneur than having to chase a client for payment. I’m a strong advocate that photographers should not provide proofs to a client until all outstanding balances have been paid.

    Likewise, if the expectation is that the client must pay you before or at the time of the event or photog shoot, and they don’t pay, don’t be afraid to leave. Why do any work for them if they haven’t paid you to do so? If you choose to stay, I hope your contract includes a provision that lets you charge a hefty late fee.

    No matter what or how you charge for your work, always send a reminder about when payments are due, including a notice about your penalties for late payment.

    Contract are relationships management documents. They should address the interactions with your clients, including when things go sideways.

    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.

    •

    Ruth Carter

    •

    , , , , , , , , , , , , , , , , , , , , , , ,

  • Manage Photography Client Expectations with Effective Contracts

    Photographer by Elicus from Flickr (Creative Commons License)

    One of the problems I’ve heard about from a number of photographers is clients not understanding what the photographer will and will not do for them. A way to manage client expectations is to clearly document them in your contract.

    Clearly State What the Client is Getting and When

    When your prospective client reads your contract, it should be as crystal clear as possible what they are hiring you to do. This includes providing expectations when deliverables will be ready. Your contract may say things like:

    • You will show up on time and prepared to shoot the client’s wedding if they’ve paid your fee for the event in advance, or alternatively, the wedding party will not receive proofs from the event until they’ve paid in full, including any extra fees incurred because they asked you to stay late.
    • Proofs will be ready 3-4 weeks following the event.
    • The model is being compensated for their time and talent with money.

    When I review a contract, sometimes I take my notebook and divide it into two columns – one for each party to the contract – and make a list about what each side is giving and getting in return. Your client should be able to do the same, which means the contract needs to be written with verbiage that they (and you) can understand.

    Be Clear About What the Client is Not Getting

    Along with being clear about what the client is hiring you to do, you may want to include terms that clarify what they client isn’t getting in this transaction. This may include things like:

    • You will show the client the best images from the event. The client will not be allowed to see every image shot at the event.
    • You make no guarantee that you’ll be able to capture every image the client hoped you’d get.
    • Unless the client paid for extra editing, you will not photoshop the client to make them look like a completely different person.
    • If the client only paid for images for personal use, they can’t use them to market their business.
    • The client is not getting a license to modify the images. This includes running the images through a filter before putting them on Instagram.

    Additionally, I hope your contract has a provision entitled “Entire Agreement” that states that the terms therein constitute the entire understanding between the parties, and the contract supersedes all previous verbal and written exchanges. That way, anything that isn’t written in the contract is, be definition, not part of the agreement.

    Contract = Relationship Management Document

    The best way I can describe a contract is that it is a relationship management document. It clearly states each side’s responsibilities, helps manage expectations, and mitigates problems.

    Your photography contract is the master document that applies to your relationships with your clients. When a client hires you for your talents and services, they must agree to abide by your rules. Whatever your concerns are about client behavior, make sure to address them in your contract.

    An effective contract can save you from stress, headaches, and legal bills. It won’t eliminate problematic clients from your life, but it will help you manage them more effectively when you can respond to their complaint with a copy of the signed contract and saying, “As you can plainly see in the agreement you signed on [date], you acknowledged/agreed that . . . “

    You may also want to have a section of your website where you share with prospective clients, “My Commitment To You” where you can lay out your promises to clients. You can even include a section that starts with, “While I promise to do my best for you, I’m not a miracle worker.” From there you can go into some of the things that you can’t or won’t do for clients.

    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.

    •

    Ruth Carter

    •

    , , , , , , , , , , , , , , , , , , , , , , , ,

  • What if Model Dies Without Signing a Model Release

    Strange Photosession Outside the National Theatre, Prague by Staffan Cederborg from Flickr (Creative Commons License)

    A photographer recently asked if they could use images if there was no model release signed when the images were taken, and the model has since passed away. Does a persons’ right of publicity survive death?

    Anyone who knows me knows the answer to every legal question starts with, “It depends.”

    Right of Publicity is a State-Level Law

    A person has a right to control how their image is used for commercial purposes. These rights are governed by state-level laws. Unless there’s a contract that specifies otherwise, the state where the images were taken will likely be the state law that applies to your situation.

    However, if you use the images without a model release, and the surviving heirs object, they may claim that the state laws where the model resided apply.

    The Professional Photographers of America (PPA) created a white paper called Model Release that includes a list of the state statutes that pertain to model releases. Please note, according to the white paper, this list of statutes was accurate as of 2010, so it is best to verify that any laws that are applicable to you are still accurate.

    In addition to statutes, there may be state-level common laws that pertain to model releases as well. These are based on case law that has come through the courts. If you need help researching case law, you should visit your local law library or consult a lawyer.

    The Model May Have Other Rights

    If the model was a celebrity or was a public figure, their name, image, likeness may be protected by other laws, such as trademark and/or copyright.

    If the model owned these trademarks and/or copyright at the time of their death, these things would be passed on to others as stated in the model’s will or by statute if the model died without a will.

    Websites May Require a Model Release

    Even if you are not required to have a model release to use the images of the now-deceased model for commercial purposes – i.e., selling prints, licensing the images, or using the images in your portfolio for marketing purposes – there may be other restrictions on your ability to use the images, depending on where you want to display them.

    There are online platforms where photographers can showcase their work that require a model release for every identifiable person in the image. If an identifiable person is deceased, the photographer must get a model release signed by the decedent’s heirs or next of kin.

    Always Get a Model Release

    Of course, all of these issues can be avoided by having the model sign a model release at the time of the photo shoot.

    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.

    •

    Ruth Carter

    •

    , , , , , , , , , , , , , , , , , , , , , , , , ,

  • Photographer Disputes: What Happens If You Don’t Deliver

    https://www.flickr.com/photos/76377775@N05/8560939745
    “Las Fallas Valencia Spain Angry Woman” by Keith Ellwood from Flickr (Creative Commons License)

    As I was researching photographers’ legal questions, I stumbled onto a question posted by an upset client: “The photographer hasn’t given me my photos. It’s been six months. What can I do about that?”

    Whoa! That sounds exceptionally bad. I’m curious how complex this project was and when the photographer said they’d deliver images to the client.

    I don’t know the circumstances regarding this person’s situation, but here’s what could happen if a client is unsatisfied with your work, or worse, you fail to deliver as promised.

    Check the Contract’s Dispute Resolution Provision

    Whenever anyone comes to me with a business dispute, like “They didn’t pay me,” or “I didn’t get what I paid for,” the first question I ask is:

    What does your contract say?

    Your photography contract should have a dispute resolution provision that states how disputes are going to be resolved, where it’s going to be resolved, and which state law governs the agreement.

    One of the most common dispute resolution clauses I put in photography contracts says if there’s a dispute, the parties will try, in good faith, to resolve the matter within 30 days. If that doesn’t resolve the matter, then the parties agree to resolve the matter is a court located in Maricopa County, Arizona, and the agreement is governed by Arizona law. (I recommend Maricopa County and Arizona law because that’s where I’m located. You don’t want to pay for your lawyer’s travel expenses if you don’t have to.) I usually include a clause that says the losing party must pay the prevailing party’s attorneys’ fees and costs.

    Regardless of what the contract states about resolving disputes, my first step in most disputes is sending a demand letter that puts the other side on notice that further legal recourse will be sought. This letter lets the other side know that the offended party is serious and willing to fight, and it gives them a chance to resolve the matter before it will be taken to the next level.

    Report to the Attorney General’s Office for Consumer Fraud

    You may not know this, but your state’s Attorney General’s Office may have a forum to submit a consumer complaint and report suspected fraud. Arizona has this, and it’s not a fun process to go through the subsequent investigation, which could include being subpoenaed for a deposition under oath and/or having a claim for fraud filed against you. If a court found that you committed fraud, it could have devasting consequences for your business, including your ability to be a professional photographer. Taking a client’s money and failing to provide the images could easily be an act of fraud.

    If a client wanted to pursue this option, they don’t need a lawyer to file a consumer complaint. They can go online and get the form themselves. The Attorney General’s Office would foot the bill for the investigation, and likely expect to be reimbursed by you if you lose or come to a settlement. Conversely, if a consumer complaint is filed against you, you should hire a lawyer to represent you.

    Bad Review

    The least problematic a dissatisfied client could do is leave you a negative review on Google, Yelp, or Facebook, or they could post about you online on their social media accounts or their website. As long as everything they post about you is true or their opinion, it’s perfectly legal.

    Hopefully, you never find yourself in this type of situation, but if it happens, please don’t ghost your client. Keep the lines of communication open as you work towards a resolution. One of the most common complaints I hear from customers is that the person they hired stopped responding to emails, calls, or texts, and so they felt like they had no choice but to ask a lawyer or the state for help.

    Lights Camera LawsuitTM

    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.

    •

    Ruth Carter

    •

    , ,
    , , , , , , , , , , , , , , , , , , , , , , , , , , ,

  • Lawyer Responds to Photographers’ Problems

    “Photo Shoot” by Cliff from Flickr (Creative Commons License)

    Last week, I saw a thread in an online photography group that started with a simple question: “What problems do you face as a photographer?” After reading hundreds of the responses, I wanted to respond to some of their problems as both a lawyer and an entrepreneur:

    Competition – Other Photographers Offering Half the Price

    My first thought when I read this was, “There’s a good chance it’s also half the quality.” You never want to be in a race to the lowest price. Instead of worrying about price, focus on what makes you different from the competition.

    If someone wants a cheap photographer to document their once in a lifetime event, like their wedding, that’s their choice. If I were facing a client who said, “I can get someone to photograph my wedding at half this price,” I hope my response would be something like, “This is your special day. You have to choose who you trust to capture these moments for you.”

    Personally, I have no problem when a client self-selects out from working with me if they don’t want to pay my rate. It’s better that they decide that early and go with someone else.

    This problem reminds me of a sign I saw in a tattoo parlor: “Good tattoos aren’t cheap. Cheap tattoos aren’t good.” The same is likely true for photographers.

    Clients Don’t See What We’re Worth

    Part of being an entrepreneur is educating prospective client about the value we bring. It’s not that skilled photographers cost so much, but they’re worth so much. Some of the ways you can do this is by having a high-quality portfolio and a stellar reputation.

    Remember: You’re not just taking photos; you’re creating an experience – every interaction from the first “hello” to the final deliverable. Your ability to take and edit photos are important, but so are the way you carry yourself, how you communicate, and your creativity, work ethic, and confidence in your skills. All of those things add or detract from your value as an artist. You want to be in a position where people want to hire you, not just any photographer.

    I had a similar situation when I hired the designer who created the logos for Scarlet MavenTM and Lights Camera LawsuitTM. I could have used a discount service like 99 Designs or Fiverr, but I didn’t want to entrust a stranger with this task. I wanted to work with Square Peg Creative and Dina Miller. I’d seen and loved the way she created. I was willing to pay extra for that experience, and the resulting logos that I love.

    How to Tell People I’m a Proper Photographer

    The best way to tell people that you’re a professional photographer is to act like one. Create a business entity, a website with a portfolio, and contract templates for your services. If you want people to take your seriously, you have to act like a professional.

    Speaking of Contracts

    Contracts are relationship management documents. Once a client signs the contract, they are bound by its terms. Whenever there’s a problem, you can refer back to the contract and the terms they already agreed to. This is where you can put information like,

    • The deposit is non-refundable.
    • The photographer chooses the best images to show client. The client will not get raw images.
    • There’s no guarantee you’ll capture every image the client was hoping for.
    • The client is not allowed to edit the final images. This includes adding filters or stickers or cropping the images.

    There’s a video I recommend to almost every entrepreneur called F*ck You, Pay Me, that features a graphic designer and his lawyer talking about how they use contracts to make sure the client pays per the contract’s terms. The suggestions work for many types of professional creatives.

    Clients with High Expectations and Low Budgets

    While many people don’t like talking about money, it is a topic you want to discuss early in the vetting process by either giving the prospective client your price list or asking about their budget. Don’t be afraid to be frank with clients who have expectations that are way beyond what they can afford. Tell them what they can afford based on their budget, as well as what you could do if they are willing to pay more so they can make an educated decision about what they want.

    Clients Who Try to Negotiate on Price

    In the photographer-client relationship, they are hiring you. You get to decide what is and is not negotiable in your contract. If your rates are not negotiable, be clear about that the first time they ask.

    In my practice, I hand pick who are my pro bono clients and who gets a discount. That’s my call, not the other way around.

    Here’s a tip I saw from another photographer: Make your prices all-inclusive. Don’t list separate prices for shooting and editing, because it opens the door for clients to try to haggle on one or the other.

    Companies that Want You to Work for Free or Magazines that Want to Use Images for Free

    Oh, it’s so cute when people want you to work for “exposure.” You get to decide how you respond to those requests. Here are some of my favorites:

    • Exposure is not a currency that my landlord accepts.
    • I can’t pay my mortgage with exposure.
    • People die of exposure.

    Chasing Payments

    Ideally, you want to create a photographer-client relationship where it’s easier to comply with the terms of the contract and pay on time, than not. Many photographers charge a non-refundable deposit to book a shoot or event and require the balance to be paid in by the day of the shoot or event. At the latest, I don’t recommend a photographer provide proofs unless they’ve been paid for the shoot.

    You also want to have terms in your contract about cancelled appointments, late payments, and non-payments, so that you set yourself up to get paid what you’re owed in a timely manner.

    Are You Free Next Week?

    You can put the information about how far in advance a prospective client should expect to book you near your contact information or in your FAQs if you have them.  

    People Assuming You will Photoshop them Perfect

    This problem reminds me of Christian Siriano on Project Runway when he said, “I’m not a miracle worker, lady. I can’t make you have an ass!”

    In talking with your client, set some expectations about what Photoshop can and can’t do. Assume your client doesn’t know anything about photography, unless they are a professional photographer themselves. You can educate your clients by showing them before and after images so they can see the type of edits you’ll be doing for them.

    It’s ok to have fun with it, if that’s your style, by saying things like, “If you’re 5’2”, I can’t make you 5’10”,” or “If you have a ‘dad bod,’ I can’t transform you into Thor.” On the softer, more realistic side, remind your client that it’s your job to capture them looking their best, not like someone else.

    Bonus Tips from my Experience as Model: Posing

    Several people said they had problems with posing models or giving direction. As a model, my response is, “Don’t be afraid to try.” You’re the one behind the camera. I can’t see how I look.

    If you give a model a pose and it doesn’t create a good image, try something else. I won’t know if you didn’t get the shot you wanted. I’ll think you have lots of ideas.

    It’s ok to think out loud and say things such as, “I like how this light is hitting your eyes, let’s try this.”

    I’ve you are afraid you won’t remember the ideas you wanted to try from other images, bring notes to the shoot. It shows you’re prepared, and thinking about what types of images might be best for me.

    Learning how to pose models and give direction is something you develop over time, with practice, and watching others. Unless you’re doing some extreme work, no one is going to die. And don’t forget – I can’t see how I look, so as far as I know, whatever you’re trying is brilliant.

    Lights Camera LawsuitTM

    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.

    •

    Ruth Carter

    •

    , , , , , , , , , , , , , , , , , , , , , , , , , , ,

  • How to Give a Discount on your Photography Services without Discounting your Value

    “The Belly Dancer with the Fans” by mmockingbird from Flickr (Creative Commons License)

    Sometimes photographers, like all service providers, want to provide a discount for their services. Perhaps it’s for a friend, someone you’ve always wanted to work with, or an organization you know can’t afford you and you want to help.

    Nothing Wrong with a Discount

    There is nothing wrong with offering a discount for your photography services, whether it’s a special one-off or a promotion that’s available to any client.

    The challenge is you don’t want to cheapen the perceived value you provide. When a person buys an item at a cheap price, they may have lower expectations about it and will perceive it as less valuable than a similar product that performs the same function but costs twice as much. You don’t want your clients to discount the value you’re giving them, even when they get it at a discounted price.   

    Have you noticed that it’s often the clients who are getting the biggest discounts who complain the most? I made that mistake once. I quoted someone an exceptionally low flat fee to do their contract because I thought it would be an easy project. The nitpicked so much and requested so many changes, that by the time it was done, the amount I made per hour of work was laughable. (This was also the client who taught me to put a cap on the number of edits I’d do on a flat fee project. If they wanted more edits after that, they had to pay hourly.)

    Always Show a Photography Client your Value

    Even when you give a client a discount, always include your standard price and then the discount. Being a professional photographer is two jobs in one – you’re an artist and an entrepreneur. The entrepreneur’s job includes educating clients and prospects what you are worth. Photography clients are not just paying for your time, but also your talents. Remind them about the value you bring to the table, regardless of what they’re paying.

    This tactic is not offensive.  You see this when you buy things online. The website always starts by posting the price and tells you how much of a discount they’re giving you and the price you’re getting.

    How to Write an Invoice or Contract with a Discount

    This is how I’d write an invoice or payment section of a photography contract that includes a discount:

    Sitting Fee:                       $200.00

    I-Like-You Discount:           -$75.00

    Total Sitting Fee:               $125.00

    You get to choose what you’re going to call your discounts. I encourage my clients to be creative and include their personality in their contracts, but you have to decide what works for you.

    Lights Camera LawsuitTM

    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.

    •

    Ruth Carter

    •

    , , , , , , , , , , , , , , , , , , , , , , , ,