One of the frustrations I hear about from entrepreneurs is
getting stiffed – either they paid a company to do a job and they didn’t perform,
or they did a project or task for a client and they didn’t pay. In many of
these situations, the amount in question is low enough that it’s not worth it
to hire a lawyer or even put in the time and effort to take the other side to
small claims court.
Even if a client hires us to send a demand letter, there’s
always the risk that the other side won’t comply, and then they’ll be in the
same position as before, but now they have our bill to pay too.
If the client in question is a business, there may be
options to go after them through the government at no cost to you.
Attorney General Consumer Complaints
Check the Attorney General’s (AG’s) Office website for the state
where your non-performing client lives (not where you live if you live in a
different state). For every state that I’ve checked for a client to date, the
AG’s Office has had a division or at least a page on their website for consumer
complaints. Typically, it’s a form where you provide your contact information,
a summary of the situation, and the remedy you want.
If the AG’s Office thinks your complaint has merit, they’ll
investigate the situation, including them sending a copy of your complaint to the
company and with a firm deadline for providing a response. Even if your client
didn’t respond to a demand letter from you or your lawyer, they will likely be
more inclined to respond to the AG’s Office.
In my experience, companies are motivated to resolve these
matters quickly and avoid the risk of having fraud charges filed against them. This
may result in the client paying you, performing as they were supposed to, or
giving you your money back.
Pros and Cons of Going Through the AG’s Office
Pro: It’s free to file a complaint. You don’t need a lawyer to do it; however, it may be prudent to have a lawyer help you fill out the form to make sure you’re presenting the most compelling argument in light of the applicable laws. Your lawyer may know the key phrases to use to convince the AG’s Office to take your complaint more seriously than if you’d written it by yourself.
Con: You have less control over the situation. If the AG’s Office pursues the matter and files a complaint in court against your client, you will not be the plaintiff. The state will be the plaintiff. You will be less involved in the negotiations and settlement (assuming there is one).
Pro: It’s less work for you. If you were pursuing this matter directly against your client, such as filing a lawsuit, there could be meetings and calls with you lawyers, documents to review, and other work where you would need to be involved. Or if you were doing it on your own and going to small claims court, you would still have to prepare your Complaint (lawsuit), file it, get the other person served, and show up for your court date.
The AG’s Consumer Complaint is the Hidden Alternative
Most people I’ve spoken with about these types of business
challenges, don’t know about Consumer Complaints. I’ve suggested it at least
three times in the last two weeks to friends and clients alike. I can’t say
this option is available in every state, but it’s worth investigating if you
have a non-performing client that’s a business.
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In response to the infamous Venn diagram by Matthew Homann that suggests that most of the information lawyers put on their bios does not answer prospective clients’ questions, I asked my lawyer and non-lawyer friends what information they wanted to see.
Their responses inspired me to write the most blatantly
honest bio I could for myself:
Ruth B. Carter
Of Counsel (legalese for “independent contractor”)
Practicing law since 2012
Law School: Arizona State University
Other Degrees: Oregon State University – Honors Bachelor
of Science in Psychology, Chemistry Minor; Master of Science in Counseling
Practice Areas: Intellectual Property, Internet Law, Business Law, Litigation
Current Rate: $300/hour (as of January 1, 2023). Any work that requires me to drop-everything-and-put-out-this-fire will be billed at my “urgent” rate of $400/hour.
What I Am Really Good At:
Persuasive Writing – like nasty-grams and court filings
Contracts, including terms of service and privacy policies – I use my past work as guidance
USPTO Trademark Applications – including keeping you informed throughout the process, even when the update is that there is no update
Explaining how the law works in plain English
Have I Worked on Cases Exactly Like Yours?
Please email me a summary of your situation, and I’ll let you know. If I’ve blogged or created a video about your type of legal problem, I’ve probably worked on a similar case.
Will I Work my Ass Off for You?
Yes.
Do I Take Cases on Contingency?
No.
What About for Partial Ownership of Your Startup?
Absolutely not.
Can You Have Payment Plan?
Officially, no. In
reality, probably yes.
I get that legal work is expensive, and not everyone has
thousands of dollars in their rainy day fund. In general, I don’t mind if
clients pay me over time as long as they’re making consistent payments every month.
The partners at the firm aren’t a fan of this, but they don’t make a fuss if
you’re paying your balance down every month. You must pay your filing fees
before I will file anything on your behalf.
Few things make me feel more disrespected than clients who
ghost me in paying their bill when I’ve worked my ass off for them.
Additionally, I’m in an eat-what-you-kill environment. My income is directly
related to my clients paying me for my work. I do not have a guaranteed salary.
What do I Like about Being a Lawyer?
I get to work on challenging projects, and I get to help
people in a way that they often can’t do for themselves. The areas of IP and
internet law are constantly evolving, and the law, at best, is barely keeping
up with technology.
How Long Do I Take to Respond to Emails?
My goal is to respond to emails within 24 hours, 48 hours if
I’m super busy. If you haven’t heard back within 72 hours, please ping me
again. Your message may have gotten buried in my inbox.
Can You Call Me?
Unless I’ve told you to call, please don’t call me. My outgoing message says, “Don’t leave a voicemail. Send me an email instead.” If you call when I’m not expecting it, I probably won’t pick up, and here’s why:
When I’m doing client work, I want to give the client my
undivided attention. If you make my phone light up (I turned the ringer off
years ago), you will distract me, and it will take me that much longer to get my
focus back. Ditto for the blinking you-have-a-message light, which will turn on
even if you don’t leave a message. This is the same level of attention you will
get when I’m working on your case.
Am I an Asshole?
No. However, I regularly say that I’m not a nice person; I
occasionally do nice things.
Will I Call You Out When You’re Wrong?
Of course. That’s my job. I will listen and validate your
perspective, and then tell you how it really is. Sometimes the law doesn’t make
sense.
Do People You Respect Like Me?
I hope so, but you’d have to ask them. About half of my clients find me through word-of-mouth referrals. I have a few testimonials on my About page, and you can always look up my recommendations on LinkedIn.
“He Walks Dogs” by Damian Gadal from Flickr (Creative Commons License)
I
recently heard a question from a new photographer. They are new to the business
and focused on building their brand and rapport with potential clients. Their
question was, “Should I have a contract on hand at the beginning stages of my
business?”
My
response was an emphatic: “Yes!”
Photography Contracts: Every Job, Every Time
A
contract is a relationship management document. It puts everyone on the same page
about what each side is giving and getting and sets the expectations about how
each side should behave.
I
tell my photographer clients to never accept a job without a signed contract,
this applies even to TFP shoots (trade for photos). Your contract should
outline what the client is hiring you to do, how/when you’ll be compensated,
how the client can use the images, and who owns the copyright. It should also
have terms that address how problems will be resolved.
If the Prospect Balks at a Contract
If
you have a prospective client who says they “don’t think a contract is
necessary,” turn and run. This raises to red flags for me: either they don’t
understand how the business works, or they have devious reasons for not wanting
a contract that could bite you in the butt in the future.
One
of the best pieces of advice I got early in my career was, “You never regret
the client you didn’t take.” I have had no regrets about declining a
representation when a client balks at how I do business. Every time I decline
one of these clients, I feel like I’ve dodged a bullet.
Don’t Worry that Requiring a Contract will Push Clients Away
Don’t
worry about being perceived as “pushy” my holding firm that a contract is required.
You can be polite and respectful while say, “This is how I do business. If you
don’t want to sign a contract, that’s fine, but you won’t be working with me.”
You
set the rules for how you work with clients. If they balk at your contract
(assuming it’s reasonable), they shouldn’t be your client. A reasonable client
would expect you to require a contract. A person with any business acumen won’t
want to work with you without one.
Let
the prospects who don’t want contracts to self-select out. If you have problems
with a client at the beginning of the relationship, it’s an indicator that they
will be problematic throughout the project.
If
the prospect asks for a referral to another photographer, I recommend saying, “All
the reputable photographers I know won’t take on a client without a signed contract.”
It’s Cheaper and Easier to Prevent Legal Problems than to Fix Them
This
has been proven time and time again in my legal career. When a client comes to
me with a business dispute, one of my first questions is, “What does your
contract say?” When my client doesn’t have a contract, I have to piece together
the terms of their agreement from emails, text messages, and the parties’
actions. Often my client spends more just having me piece these things together
than what it would have cost them to have a custom contract template made.
Additionally,
in a dispute, it’s much easier to create a demand letter than references the
terms the other side agreed to and back them into a corner where they have to
try to defend the indefensible rather than assert what the terms of the
agreement are from the assembly of bits and pieces of communications and
actions that the other side can more easily debate.
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.
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.
“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.
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.
“Shooting the Dress” by Garry Knight from Flickr (Creative Commons License)
Professional
portrait photographers generally need at least two contracts when working with
a client: one for the sitting and one for the deliverables. For the latter,
make sure the client is crystal clear about what they are, and equally
important, what they are not buying. Having clarity on the front end will prevents
problems on the back end.
Assume
Clients Don’t Understand Copyright
Part
of your job as a professional photographer is to educate your client about the basics
of copyright and how it applies to images you’ve been hired to create. Many
people assume that they are allowed to take a print, scan it, and share online
or via email.
In
my pre-lawyer life, that’s what I thought. I spent plenty of time in the
computer lab during my undergrad scanning photos. There was even a bulletin
board dedicated to the photos that people left in the machine.
This
is still an issue for Joe Average people. Here’s a real question that recently
came across my screen: I hired a photographer to take family pictures. I
want to share them online and with extended family. The photographer says I
can’t do that. Why?
I
suspect this person bought prints and not a digital license, or they have a
license but it doesn’t include an allowance to distribute the images.
As
a risk-adverse lawyer, I would put specific verbiage in the contract that
states what the client can and can’t do with the photos, including that only
the digital version the photographer provides can be used to share the images
with family and friends, probably in bold print.
This
serves two purposes:
It protects your copyright, and
It maintains the quality of your work.
It’s
also a good idea to include the information about your socials so they can tag
you. (Good clients give credit their photographer when posting images online,
even if they’re not required to.)
What
the Client gets with Prints
When
a client buys prints, they are buying the tangible object – the picture on
whatever medium it was printed. They are buying the thing. They are not getting
the copyright right or any copyright rights (unless that’s part of the contract
they signed).
The limits of what someone can do with a print are similar to what they can do if they bought a book. They can display it, sell it, give it away, destroy it, etc. What they can’t do is make copies of it.
Scanning
a print is making a copy. So is taking a photo of the photo.
I’ve
seen people do this at amusement parks. They don’t want to buy the photo the
park took of them on the rollercoaster, so they take a photo of the screen
where the image is displayed – so they take photo of the photo. When I’ve seen this
happen, the teenage clerk usually says, “We’re not supposed to let people do
that.” Now you know why.
What
the Client gets with a Digital License
What
a client can do with a digital license depends on the limits within the license
itself.
Whoever
owns a copyright has the exclusive right to control if and how the work is
copied, distributed, displayed, performed, and what derivative works can be
made from it. If I were writing a license for a photographer, I’d address all
five of these rights – including “perform,” even though that’s not a verb we
typically use in regards to photographs, but I’d rather be thorough.
Most
of the time, the photography licenses I draft are for a non-exclusive,
perpetual, worldwide license. It also addresses whether the licensee is allowed
to use the images for commercial use. Sometimes the photographer requests
additional provisions, like one that says the licensee isn’t allowed to alter
the images, which may include cropping.
Following
the license provision, I often add a sentence that states all other uses of the
images must be approved by the photographer in advance.
Solution:
All Print Packages Include a Digital License
One
way to address this issue to require clients to purchase a digital license when
they’re purchasing prints. The client won’t have to scan any images if they
already have digital versions.
When
you first meet with a client to discuss their needs, ask them about what they
want to do with the final images, including how they want to show them to
others. If you hear a client talking about how they can’t wait to share the
photo with family/friends – clarify what they mean and make sure purchase a
package that suits their needs.
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.
Photographers
need to be mindful of the possibility that some people may use their photos
without permission. People will pull images to use on their website and social
media posts. Additionally, there are people who think they have rights to a photo
merely because they’re in it. I’ve even heard of hair and makeup artists who take
photos from the shoots they have worked on to use them in their portfolio.
This
issue is compounded by the fact that there is inaccurate information about photo
use on the internet. Some sources assert that you can use any photo you find on
the internet as long as you give an attribution and a link to the original.
They think they’re giving you free publicity, but what they may be doing is
committing copyright infringement and telling you about it.
Start
with the End in Mind
When I work with clients who believe their copyright has been violated, one of the first question I ask is,
How do you want this to end?
Knowing what the client wants as a result of my work tells me what avenue for recourse they’re interested in pursuing.
To
maximize the likelihood of achieving your desired outcome, it’s best to decide
before your photos are stolen how you want to respond to the alleged infringer so
you can be prepared in advance for when it happens.
Always
Respond When Someone Uses Your Photo Without Permission
You
don’t set the precedent that people can use your photos without a license. If
you let others use your work and then you want to assert your rights against another
infringer, the infringer could point to your past behavior and argue that since
you’ve allowed others to use your images without repercussions, that this new
infringer should be treated the same.
There
are five ways you can respond when someone steals your photo:
Option
#1: Grant Permission
If
you’re ok with someone’s use of your image, you can grant them permission after
the fact. It can be something simple like
Hi there. I noticed you’re using my photo for XYZ. I’m ok with uses like this, but in the future, you need to ask my permission in advance. I grant you permission for this use.
Option
#2: Cease and Desist Letter
This
is a letter from you (or your lawyer) to the suspected infringer that informs
them of the copyright rights they violated, directs them to remove the image by
a specified date, and tells them what you’ll do if they don’t comply. Be ready
to follow through on whatever you threaten/promise in your letter, or you’ll
lose credibility.
These
are sometimes referred to as the “nastygram,” especially when it’s written by a
lawyer and the client’s goal is to put the fear of god in the person so they
comply. There is no rule that says you can’t send a letter that says,
I love that you love my photo, but you need to remove it by . . .
Option
#3: DMCA Takedown Notice
DMCA
stands for Digital Millennium Copyright Act. This option is only available in
situations where your photo and the infringement of it are both on the
internet. Instead of sending a cease and desist letter to the person who stole
your photo, you send a takedown notice to the company that hosts the website
where the infringement is occurring. Some social media platforms have a form on
their site for submitting a takedown notice with designated spaces for all the
information you’re required to include in a DMCA takedown.
Option
#4: Send a Bill and a License
There
is at least one photo licensing company that is notorious for doing this, but
any photographer can send (or have their lawyer send) a letter to the suspected
infringer that says,
By using my photo, you’ve agreed to my licensing terms. Here’s a copy of the license and your bill!
If
you want to use this option, it’s ideal if you have your licensing terms or at least
information about licensing on your website.
Option
#5: Sue for Copyright Infringement
This
option requires the most work in advance compared to the other options because
you must register the photo’s copyright with the U.S. Copyright Office in order
to be eligible to sue for infringement. There are time constraints in which you
have to register you work in to be eligible for statutory damages, including
attorneys’ fees. Additionally, your photo has to be stolen by someone who can
afford to pay the damages, otherwise you may never collect (and you’ll likely
have to pay for your attorney yourself).
If
registered your photo too late, you can still sue, but you can only get your
actual damages, and you have to pay your attorneys’ fees. Most of the time, in
this situation, it’s not worth it to sue because you’ll spend more on your attorney
than what you’d get in damages from the court.
What’s
the Right Option to Protect Your Photography?
You
have to make that decision yourself. Decide in advance how you want to respond
when someone steals your photo and plan accordingly.
Your
strategy for responding to suspected copyright infringement can include more
than one of these options – such as sending a cease and desist letter yourself
and if that doesn’t work, then have your attorney send one. Some people are
more motivated to comply when they see the law firm’s letterhead.
Regardless
of your strategy, it’s best to speak with your attorney in advance and consult
them when dealing with someone who’s using your photos without permission. There
have been many times that I’ve written the cease and desist letter for my
client to send that included the sentence,
I hope we can resolve this without having to get lawyers involved.
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.
“The Lights of Simian Mobile Disco” by John Rabbit from Flickr (Creative Commons License)
Public
events present fantastic opportunities for photographers to take captivating
photos, but before you pull out your camera, you need to understand some of the
legal do’s and don’ts of shooting in public.
What
is “Public?”
What
is public versus private is a challenging question for some people to comprehend.
There is a difference between being “in public” and being on “public property.”
Many places where the public is invited to be, such as shopping malls,
convention centers, fairgrounds, and stadiums are in public because you’re in a
place where many members of the general public can see you, but you’re still on
private property, and can be asked to leave if you’re breaking the rules.
Even
when events are on public property, like street fairs and events at public parks,
these areas are like private property for the purpose of the event. The organizers
likely obtained an event permit from the city, part of which gave them
permission to enforce stricter rules regarding photography than what you would
have to follow if you were merely walking down a public street.
Their Event. Their Rules.
When
you want to shoot at an event, try to find the photography rules. When you
enter the event, look for notices. Many times, the organizers post a notice
that says by entering the premises, you agree that the event organizers can take
your picture and use the images for any purpose. These notices do not apply to you
unless you are a photographer hired for this purpose.
Here’s
where you can look for information about whether you can legally take photos at
an event.
If the event is on private property, look for a list of rules on the wall. Many shopping malls and stores have rules that prohibit shooting photos or video on the premises.
If you are attending a sporting event or concert, check the back of your ticket. If there is fine print, that is likely a contract between you and the event or venue, which may include terms about taking photos.
Check the website for the event or venue to see if they are specific rules regarding photography at the event. Many times, this is in the frequently asked questions (FAQ) section. If the event is out in the open, like at a park or fairground, I would not expect there to be rules that prohibit photography, but I have seen “No Photography” signs on vendor booths at art festivals where artists were selling original works.
Rules
of Thumb for Shooting Photography in Public
Here
are some general rules when taking photos at public events.
1. Don’t be creepy. Don’t stare at people, follow them around, or act like a stalker. I’ve heard about this type of behavior at cosplay events, including a few years ago at Phoenix Comicon where someone shot video of women without their consent, and posted a compilation where the purpose was to objectify them. (The video has since been removed.) Now, it’s more common to see rules at these events that include a zero tolerance policy for this type of behavior.
2. Ask permission if you can take someone’s photo. This is particularly true if you’re taking photos of someone else’s child.
3. Be ready for questions from security, ushers, and/or event attendees. If you are using a high-end camera when most people are using their smart phones, you may raise suspicions. This is especially true if you or the person you’re shooting are doing anything abnormal.
As
a former gymnast, I like
to do handstands. When my friends and I went to an Arizona Diamondbacks
baseball game, I decided to do in the stands. We did it right before we left: I
kicked a handstand, my friend took the picture, and we immediately walked up the
stairs to leave. As expected, an usher stopped us as we reached the top. I was
ready for him to say we needed to leave, but thankfully he was curious to know
what we were doing.
Handstand at the Baseball Game, June 2010
4. Remember, if you don’t have a model release, you likely can’t use the images that contain identifiable persons for commercial purposes, including marketing yourself, without the risk of being accused of violating the person’s right of publicity. (Check your state’s law to see what the rules about publicity rights are before you take photos of others, especially strangers.)
5. When you are taking photos on public property – not at a private event, know the applicable laws. You may encounter people who make false statements about the law, and you have to correct them.
For
example, Improv AZ has organized the No Pants Light Rail in Phoenix every year
since 2009. It takes place on the public light rail system with the general
public, and we have official photographers who ride with us, sans pants, to
document it. One year, we encountered light rail security who tried to tell one
of our photographers that he
couldn’t bring his camera on board, because it would be a violation of the
law. We stood in the door of the light rail car – one foot in the car, one foot
on the platform – which forced the door to stay open, so our photographer wouldn’t
get left behind. We explained the law to the security guard and asked him to
call his supervisor, who confirmed that everything we were saying was true, and
we continued with the Ride.
The best way I can encompass the rules for shooting photographs at public events is Be Aware, Be Thoughtful, and Make Good Decisions.
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.
Here’s
the scenario: A client hired you for a photography job, which you did, and you
provided the deliverables on time. The client is unhappy with their photos,
threatens to leave a bad online review if you don’t give them their money back.
What
do you do?
You’re
a Photographer, Not a Miracle Worker
Your
client has put you in a difficult position. You have to work with what you’re
given from the client. You don’t want to be insensitive, but you can only do so
much. It may be impossible to give the client images that match what they envisioned
in their head.
Many times, part of being an entrepreneur involves educating and managing the client’s expectations. Based on the client’s complaint, it may be prudent to review the images and see if there’s anything you can do, perhaps suggest additional edits than what they hired you to do or explain that this is best you could do given the constraints of the situation.
Ask
Yourself the Difficult Question
Ask
yourself the difficult question: Did you screw up? Do you owe this person additional
edits, a re-shoot, or some type of compensation? If so, admit it.
As
Peter Shankman says, “There is no
greater lover than a former hater.” If you make a mistake, admit it, and make
up for it, that person may become your biggest cheerleader.
Go
Back to the Contract
When
dealing with an upset client, having a well-written contract can help you resolve
the matter and remind the client about what you both agreed to at the outset of
your working relationship.
If
the client is upset because you didn’t provide an image of certain pose, show
them the provision that says there are no guarantees that they’ll get every pose
or image they hoped for.
If
the client wants to see all the images you took during the shoot, show them the
provision that says you’ll only be showing them the best images and that they
won’t see every image you take.
If
the client says they shouldn’t have to pay because they’re unhappy, remind them
that they hired you for your time and skills. Payment is expected if you fulfilled
your obligations under the contract.
Hopefully, you have a photography contract that anticipated common complaints and addressed them accordingly.
You
Can Always Cave to their Demand
Whether
you give this person their money back is a business decision, not a legal one.
You may decide that the best course of action, regardless of whether you think
it’s warranted, is to give this person their money back and move on. That’s
your call.
I
recommend you decide in advance, just for yourself, the circumstances under
which you’ll give a refund. Many photography contracts state that there are no
refunds or that they are given only in rare specified situations.
If
They Leave a Bad Review
If
the client follows through on their threat and leaves a bad review, respond to
it in a polite and respectful manner. You can say you’re sorry they’re upset
and invite them to contact you directly to discuss it. (Many times, how you
respond to a bad review isn’t about the upset client, but rather it’s an
opportunity to demonstrate to anyone who reads it that you take client concerns
seriously.)
In
a perfect world, you’ll have enough positive reviews that one bad one won’t
tank your average. But if you’re just starting out, one negative review could
have a substantial impact on your score. You may want to invite happy customers
to leave reviews about their experience to bring your average back up.
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.
The course goes live on March 16, 2020 and is $497. That’s less than what I charge for two hours of work and you’ll be getting over ten hours of legal information.
Please subscribe to make sure you don’t miss out on other fantastic offers and opportunities to interact with me.
