Should I Be Worried? - Legal advice for small business
January 5, 2018 1:54 PM   Subscribe

I ran into a copyright lawyer a few days ago and was chatting with her, and she gave me some advice for my photography business and in the process caused me a bit of consternation. I'm not sure if I can trust her advice because it seemed suspiciously like the old 'give them something to worry about and then sell them something to fix the problem' tactic, and incidentally, if I follow her advice her company would make around $1,500. Should I act on this advice?

Pertinent details:
I have a small photography business (just me as the photographer) and I make a small amount of money (in 2017 I grossed around $7,000.) 2017 was my first year in business. However, despite small beginnings, this is not a hobby or a side gig - this is my full time work. I am building this business from the ground up (I expect to gross at least double in 2018, and my ultimate goal is to supplement my husband's income and help support our family.) So I want to make sure that I do things right, because the business is growing steadily. That being said, I'm not sure if my business is large enough to warrant some of the advice I received. (Spending $1,500 is not a small thing when my entire gross earnings for 2017 was $7,000.)

One thing I was advised to do is periodically submit my photographs to be officially copyrighted. However, this doesn't make sense to me, because as far as I have learned in my research, if you live in the U.S., you hold the copyright to your photographs the second you take the photo. Is this overkill, especially at this stage of the business? Is it ever necessary?

Another thing I was advised to do is to have her company write up a lengthy, multiple page contract (which would cost $1,500) detailing to my clients that I retain the copyright for the photos that I deliver to them, and exactly what they can and cannot do with the photos. This makes sense to me for huge contracts such as weddings, but I don't photograph weddings. I offer small photo sessions (such as family photoshoots, graduation pictures, and pet pictures.) I typically charge between $100 and $300 per photoshoot. Giving a client 4 pages of fine print to sign for a $100 photoshoot and 5 photos of their pet pug seems a little ridiculous.

What I have been doing is fairly simple: I tell the clients that they have sharing rights, but that I retain the copyright (in other words, the client can post the images online, but they can't say that they created the photos.) After each photoshoot, I ask the clients whether or not they are comfortable with me posting the pictures online in my portfolio. If someone doesn't want their face on the internet, I'm perfectly happy to honor their wishes.

I haven't had any issues whatsoever (I had over 50 photoshoots in 2017,) but of course that does not mean that I won't have issues in the future as my business grows. To be honest, I'm not exactly sure what kind of "issues" I should be worried about. I'm just concerned about taking the appropriate steps now as my business grows, so that I'll be prepared in the future. I need more information, but Google searches yield conflicting advice, and I don't entirely trust the advice of someone who stands to profit from it.

Is there something big that I'm missing? Please let me know if you need any more details. Thanks so much!
posted by quiet_musings to Work & Money (18 answers total) 6 users marked this as a favorite
I am not a lawyer, but from what I gather from artist and musician friends who have to deal with this... while you technically own the copyright on any work from the moment you make it, you have just about zero legal rights in actually enforcing the copyright without it being registered.

For example, you can file a DMCA takedown notice against someone for a work that you own, but if you don't have a registered copyright, all someone has to do is basically send a letter saying "nuh-uh!" to get the work put back up, unless you can respond showing that you have the registered copyright. And the time period that you have to do that is less time than it usually takes the copyright office to respond to an application. So if you didn't register the copyright, you're kind of out of luck.

I can't speak to the wisdom of having a lawyer write up a photoshoot contract versus digging a boilerplate one up somewhere, however.
posted by Zalzidrax at 2:05 PM on January 5, 2018 [4 favorites]

Best answer: IAAL, IANYL, IANA copyright lawyer.

Registering copyright gives certain advantages at law. See page 5 of this PDF put out by the Copyright Office. Statutory damages are the biggest deal for the creators I know, especially if they anticipate ever taking court action (or having to threaten someone with taking action), because they mean the creator doesn't have the same burden of proof to show that they lost money, that they were damaged, etc., by the person who infringed.

On the other hand, registering also calls for certain obligations. That PDF lays it out in a pretty friendly manner. It may not be the right thing for you.

(As a side note, when I was shopping for a wedding photographer, all the actual pros had license agreements, but they were about a page or so of bullet points that I signed at the bottom.)
posted by joyceanmachine at 2:06 PM on January 5, 2018 [8 favorites]

Best answer: While your photos are copyrighted the moment they're in a "fixed format" - including a disc drive - registering them comes with benefits.

If they're not registered, you can only sue for damages, which can be damned hard to prove if the use is minor. (Hard to claim you're being damaged if someone uses your pics on a random blog with no real followers.) If they are, you can sue for more than that: Statutory damages and attorney's fees.

If this is an actual business, you're much better off registering. Once a year, bundle up your photos into a packet called "quiet_musings 2017 photos" or something similar, and register that.

IANAL, but I have worked with copyright registration for a small publisher. It's worth the $35 per year - or, if you can afford it, $35 per event you cover, and maybe $35 per quarter for "misc images." Register the unpublished photos as well as the ones you hand over; you want them to also be protected.

You don't need a lengthy four-page contract; a half-page "photographer retains copyright of photos; client is permitted to post them online in personal/social settings but not use them for commercial purposes" is likely enough. (Again, IANAL.) The point of the contract is to establish an agreement, not to outline every possible use.) Questions to think about: if your client made a small personal-anecdotes book for family members called "My Awesome Dog" and used your photo as the cover, would that be okay with you?
posted by ErisLordFreedom at 2:08 PM on January 5, 2018 [3 favorites]

Best answer: Hi! I’ve been a pro photographer for 10+ years and have gone through the trouble of officially copyrighting some of (though not most of) my work. For the kind of work you’re doing, I wouldn’t worry about officially copyrighting your photos — most of their value is to your client, who will only ever use the images for personal use and will not seek to profit from your work.

But yes, you absolutely need a contract, though probably not a $1500 one. Not just to spell out copyright, but for things like retainers, liability, cancellations, etc. There are tons of online stores selling cut and paste contracts for exactly what you’re doing 1/10th of that price. Feel free to message me if you’d like to chat!
posted by rinosaur at 2:09 PM on January 5, 2018 [22 favorites]

Best answer: IAAL, IANYL, IAA copyright lawyer. You may want to register some of your photos -- particularly ones you expect to be popular, or that you want to license to multiple users. Registration PRIOR TO PUBLICATION gives you an extremely effective stick with which to beat up people who are stealing the registered photos. Without the registration, you can still go after infringers, but you've got a much less intimidating position.

A good contract that you understand what's in it and why, will be a good tool for you...think of it as another piece of photo gear. Sure, maybe you don't need that other lens (or whatever), but if you had it, you could take on another category of work, or you could take a style of photo you think customers will want, etc.

You wouldn't buy a new lens for every shoot; and you probably shouldn't buy a custom contract for every deal. But a contract that you understand is better than a cheap form contract that you don't. The problem with contracts is, if you don't pay for the information up front, then you don't know what they cover -- and what they leave out -- until the shit is already on the fan and starting to splatter around.
posted by spacewrench at 2:29 PM on January 5, 2018 [6 favorites]

IAAIPL, but I'm not your IPL. I'll answer a few of your questions in no particular order.

I don't entirely trust the advice of someone who stands to profit from it.

If this reasoning were valid, no one would hire anyone for anything.

if I follow her advice her company would make around $1,500.

Her firm might bill $1500, but you have no idea about their overhead so you have no idea how much they would "make."

Giving a client 4 pages of fine print to sign should not be required.

Is there something big that I'm missing? ... I retain the copyright (in other words, the client can post the images online, but they can't say that they created the photos.)

Yes, you're missing the whole concept of copyright. Your copyright gives you the sole right to make copies of the photos, not just to claim that you're the photographer. Your profit is based on making copies of the photos and posting them on line. If you're letting the client print or post the photos on line without restrictions, or if you're agreeing to keep them out of your portfolio, you're not taking advantage of your copyright at all. And you're missing potential sources of revenue.

I'm not exactly sure what kind of "issues" I should be worried about.

Final advice:

The main issue I see is that you're not deriving any revenue from printing or posting the photos. You're letting the client do all that for free.

You should be able to find an appropriate small-photographer/client agreement on line, either inexpensively or free. Consider LegalZoom, or Nolo, someone like that.

It is not necessary at this point in your growth for you to register all of your copyrights with the Copyright Office. It would give you additional remedies if you registered them all immediately, but you're small enough that preparing for lawsuits is not likely to be an important part of your business.

I also recommend you learn more about copyright and how it applies to your business.

On preview, pay attention to Zalzidrax and the other comments above.
posted by JimN2TAW at 2:32 PM on January 5, 2018 [4 favorites]

Best answer: One thing to consider regarding the contract: do you consider yourself as providing the service of a photographer as a work for hire for your clients, meaning you're just the mechanical production of the photos, and they own all rights to the photos thereafter; or are you a photographer who is providing your services as an artist and are selling the subjects of your photos copies of your works of art?

A lot of professional photographers -- from high-end wedding photographers to school photos -- are the latter, because they want more money every time the subject of the photos wants more copies of the images. Or, to protect their works of art from being used in ways the photographer does not want them used.

Neither version of wrong though, just perspective for what the lawyer is suggesting with the contract they're advising. Right now, where you're not telling customers what they can do with the photos but are filing copyright on some yourself, you're in a nebulous world, legality-wise. If you're happy just being paid for the sitting and delivering a CD of photos and don't care what's done with them, great, you can be #1 but you shouldn't be filing copyright on the images that were done as paid work for someone else, barring a contract that says otherwise.

(As someone mentioned up-thread, what you're doing isn't something special and there should be boilerplate documents which fit the bill without spending a lot on a lawyer.)
posted by AzraelBrown at 2:36 PM on January 5, 2018 [3 favorites]

Best answer: I tell the clients that they have sharing rights, but that I retain the copyright (in other words, the client can post the images online, but they can't say that they created the photos.)

So this is the part that makes my head spin. Copyright is the Right to make a Copy.

By telling someone, "you can make copies of my photos in X way but not Y way," you are licensing your work: allowing someone else to make copies. It sounds like you intend that they could use it on Facebook and on their Christmas card, but if they wanted to use it as the cover of a CD they were putting out on a major record label, you'd want additional payment. The problem is that a verbal statement to use the picture for "personal things" is not a legal concept.

I suspect this lawyer was trying to help you, because you do need to protect your rights to your work. One way to do this would be to have a written contract that spells out what you mean by "personal use" and what you mean by "my use," so that you can effectively police their uses. Another way would be to officially register your copyrighted photos, so if they are misused, you can use this as proof you own it.

On preview, JimN2TAW got me!
posted by holyrood at 2:39 PM on January 5, 2018 [4 favorites]

Yes, it is absolutely overkill for your business model. The idea to have a contract is wise, but you should be able to find a template online for free that suits. She is definitely trying to drum up business.
posted by ryanbryan at 2:42 PM on January 5, 2018

Best answer: You don't really understand copyright and should spend some time reading up on the basics. Then you'll have a better idea of what having a contract can give you, and what terms you would want -- things that are good to know before you spend money on paying a lawyer to write up a contract for you (or you might find that you are perfectly happy using something from legalzoom).

I offer small photo sessions (such as family photoshoots, graduation pictures, and pet pictures.)

So it sounds like your current business model is based on giving your clients the photos for "sharing", and you are perfectly fine with whatever they want to do with them as long as they don't claim they took the photos themselves. Which I'm assuming means not having to give you a photo credit.

It seems to me that if that's all you want, you feel you got your money and they can "share" all they want, you don't really need a written contract. You still have a contract, it's a verbal contract. (IANAL and all that)

But if you would want to be paid more if someone used your photo as a professional headshot, if you would want to be paid more if someone (perhaps the pug) became famous and was sharing your photo with their 200,000 followers and printing it on calendars, if you would want a photography credit if the photo appeared in a magazine, you need to have something in writing that has more details. It's really not clear what "sharing" includes.
posted by yohko at 2:58 PM on January 5, 2018 [1 favorite]

Response by poster: Thank you so much for all the helpful info! I'm beginning to understand. Some more info I thought might be pertinent: In most cases, the photoshoots are like our example of the pug: Important only to the owner of said pug. They aren't photos that I would consider timeless art. However, I have done a couple photoshoots with models who I contracted for the photoshoot, and in those cases I wrote up a detailed contract that everyone signed and received a copy of, stating that I was the owner of the photos and I could use them however I wanted. I took that extra step because my express intent with those photoshoots was to make art.

When it comes to deriving profit from posting my images online, I am not expecting to ever resell an image of someone's pug or someone's grandfather. My profit comes from other potential clients seeing the images in my portfolio and saying, "Gee, I'd like to have a picture of my poodle." That's basically the extent of how I would use a typical photoshoot image for additional profit after I've been paid for the photoshoot itself.

It's painfully obvious now, but I didn't realize that "copyright," literally meant, "the right to make copies." I thought it just meant that you created the thing, so only you could tell other people how to use the thing. (Which is also true, right?) I think I need to find out more about licensing, and make it more clear to others (and myself) how they are and are not licensed to use my photos.

Thank you so much! Please keep answering as it's incredibly helpful!
posted by quiet_musings at 3:01 PM on January 5, 2018

Best answer: you shouldn't be filing copyright on the images that were done as paid work for someone else, barring a contract that says otherwise.

This is incorrect. A "work for hire" is not simply "paid work for someone else." As a rule, the presumption is that a work is not a work for hire; it must specially qualify as one. OP is clearly an independent contractor and her work will generally not fall into the relatively narrow set of circumstances under which an independent contractor's work would qualify as a work for hire.

(Honestly, when you see a legal term, you should take the base assumption that it does not mean what it might mean to an ordinary English speaker...)

OP, not being your lawyer, but being a lawyer, I'd say you should use a form contract, but you probably don't need to spend $1500 for it. There are form contracts out there for almost everything these days, and it doesn't sound like you'd need a more tailored one. Looking at form contracts may help you get a better understanding of what your rights are; right now, it doesn't sound like you clearly grasp what rights you actually have over a photo you take. This may lead to conflict with clients down the road which a more technically accurate agreement over who can do what might avert.

As for copyright registration, given the nature of your work right now, it may be overkill. People have correctly pointed out that you will only be able to recover (likely minimal) damages if someone infringes prior to registration (or continues the same pattern after). The question is the likelihood of infringement vs. the work involved in registration. For what you're doing, the chances seem low, but it is your livelihood we're talking about here. I don't imagine you'd enjoy hitting the viral lottery with a photo and having everyone reproduce it for free. So registration isn't ridiculous--but I wouldn't pay anyone a lot of money to do it. You can do a group registration of all photos published in the same year; the form is online. You have three months to register without losing any rights to statutory damages, so doing it once a quarter would be optimal.
posted by praemunire at 3:05 PM on January 5, 2018 [8 favorites]

Oh, you can see the registration fee schedule here.
posted by praemunire at 3:10 PM on January 5, 2018 [1 favorite]

Best answer: You might want to read a book like Legal Handbook for Photographers: The Rights and Liabilities of Making Images (at least the chapter on intellectual property) or one of the other guides to legal issues for photographers, which will give you a good overview of how copyright works and what licensing models are common in the industry. Once you know the concepts involved, you'll be in a good position to ask meaningful questions of a lawyer or understand and use an inexpensive form contract.
posted by zachlipton at 3:11 PM on January 5, 2018 [4 favorites]

Best answer: I thought it just meant that you created the thing, so only you could tell other people how to use the thing. (Which is also true, right?)

No! If you buy a book, the author, who owns the copyright, may not tell you where you can read it, whether you can mark it up, whether you can use it for a doorstop - or resell it. If someone has the right to put one of your photos on their phone, you can't tell them who they can show it to, nor what they can say about it.

You can restrict how they make copies of it, which is almost all uses of digital content. They can't make posters or book covers or coffee mugs with your artwork without your consent - but not because they can't use it; those things all involve making copies.

Digital copies are weird. The law gets all wonky around digital content. It wasn't designed to deal with IP that you literally have to copy to use. (These words I am writing, they are copyrighted by me. But in order for you to see them, they get copied to my ISP, sent to Metafilter's servers, then to whatever servers your ISP has, and whatever device you're reading them on. The whole "copy" thing gets really difficult to manage. And I have to grant permission for all those copies, or the internet doesn't work.)

Artists/authors/content-creators/other copyright holders have the right to license copies, or withhold it. In the US, there are exceptions for fair use, including reviews, critique, and parody. (In not-the-US, there are exceptions for similar but not exactly the same reasons.) Some countries have "moral rights," meaning the thing can't be used in a way that reflects badly on the artist (as defined by complex laws); the US basically doesn't have moral rights.

The Copyright Handbook by Nolo Press is highly recommended by many indie authors and artists; all their legal books are well-researched and keep up with recent changes.
posted by ErisLordFreedom at 3:27 PM on January 5, 2018 [2 favorites]

This book may also be of interest; it began life as an ACLU guide for artists to their rights and the law. The ACLU discontinued the series ("The Rights of ..."), but the author of this specific volume revised and updated it and released a new edition under a slightly different title.
posted by Eyebrows McGee at 8:41 PM on January 5, 2018 [2 favorites]

Best answer: You don't state where you are, but your state will have a Your State Volunteer Lawyers for the Arts. Explaining this and helping you draft a contract that is both within the market norm and offering sufficient protections and recourse to you is what they do, for people exactly like you, for free or very near free.
posted by DarlingBri at 9:26 PM on January 5, 2018 [1 favorite]

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