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The #1 Legal Mistake Photographers Make

Have you ever wished that you had a lawyer on speed dial?

(Me too.)

To help with all the confusing legal Q’s on contracts, usage, theft, entities, and coverage, such as:

What do I need to include in a contract?
What if a client hates her pictures and wants her money back?
What happens when someone steals my photos?
What’s the best biz entity for me? What if I’m not being paid yet?
What insurance coverage do I need?
What’s worth pursing action and not pursuing?
When do I know it’s time to get a lawyer and how do I find a good one?

Well, I’m excited to announce today’s guest blogger, Rachel Rodgers!

I recently did a shoot for Rachel and her law team. Rachel is a business lawyer, who runs a non-traditional law firm for innovative companies and entrepreneurs. She’s worked with photographer newbies as well as established pros, and has been featured in Forbes, Entrepreneur, Fast Company, MSNBC, and many others.

Today, Rachel will give us critical info to avoid The #1 Mistake Photographers Make.

And on Thursday, Rachel and I will have a sit-down legal throw-down conversation packed with info on all things legal for photographers. She and I will cover all Ten Legal Mistakes Photographers Make (I’ve made them all) and How to Avoid Them, as well as answer all your burning legal Q’s. (More info at the end of this post.)

And now, over to Rachel…

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You are a powerhouse photographer either on your way to, or having already built, a sought-after photography business. Your clients love you, your work is rewarding and you’re loving life.

Unfortunately, there are lot of legal issues that affect a photographer’s business so its not all gumdrops and fairy tales. Taking care of your legal needs as a photographer can be really confusing and overwhelming. Its a lot more fun to just ignore it and hope for the best, right?

Um … no.

Creating a proper legal foundation may not be fun, but it’s what smart photographers do to make sure they don’t have to worry about things like time-consuming and costly contract disputes, unintentionally giving away their intellectual property, and paying way too much in taxes.

The good news is that taking care of the legal stuff does not have to be hard, expensive or incredibly time consuming. For example, you can protect yourself and your business from a whole host of legal issues simply by having a solid contract with every client. Which leads me to the number one legal mistake I see photographers making:

#1 Mistake:
Not having a solid contract (client service agreement) for each client.

This is an epidemic. A lot of business owners, not just photographers, do business without any contracts at all. Which is a terrible way to do business. Why? Because the whole purpose of a contract is to prevent disputes by making sure that all parties to the agreement understand exactly what is going to happen, what is going to be exchanged (services, products, cash), and what happens if things don’t go according to plan (cancellation terms).

How can you avoid making this critical mistake?

For photographers, because your intellectual property can be so easily stolen, its even more imperative that you have clear terms for how your photos can and cannot be used by your clients and clarify exactly what your clients are purchasing (are they purchasing all rights to the photos or just a license?), and you need to ensure that you have your client’s permission to use the photos for marketing and other business development purposes.

Necessary items to include in your contract:

How many calls/emails/meetings with you can the client expect?
How many photographs can the client expect to be shot, showed?
Will you provide hair and makeup stylists, wardrobe?
When and how will the photos be delivered?
When and how will the client pay you?
What happens if payment is late?
What is and is not included in the price (retouching, copyright)
What happens when a client fails to show up at their appointment?
What happens if a client doesn’t love her photos?

Customizing contracts to suit your business

Spend some time thinking about your policies, and then set them down in the client service agreement so that you are crystal clear on what happens in different situations, and the client is crystal clear on what she can expect.

If you have specific rules on set, list them. You might prohibit or allow alcohol (for adults), you may limit the number of guests, you will probably want rules about food or drinks and cell phones. This is also the time to let the client/model know what to bring, props, outfits, etc.

Special clauses for nude or boudoir photography

Photographing models in the nude or semi-nude requires some specific clauses in the contract (and often in the model release as well.)

Because of the sensitive nature of such a session, you will want to set forth policies that you are comfortable with and that will make your model comfortable. For example, many boudoir photographers limit who can be present during the shoot. It’s a good idea to mention that, as the photographer, you may need to reposition the model’s lingerie or touch her to get the pose right.

You’ll want to consider, and diplomatically set forth in the contract, what circumstances will wreck the deal. If the model shows up intoxicated, or is suffering from bad tanning or botched Botox treatments, you may not be able to get satisfactory images.

You’ll also want to make sure (require proof) that your model is 18 years of age or older. The laws that prohibit child exploitation vary from state to state, and are often enforced on the discretion of local law enforcement. Furthermore, persons under 18 are not legally able to sign a contract or a release.

Important boilerplate items to include

And don’t forget the boilerplate which is all of the legal language you see at the end of an agreement. It may seem really monotonous and irrelevant but it is incredibly important. If you ever have a problem that escalates into a full blown dispute, that boilerplate protects you and can save the day.

Boilerplate must-haves:

The Limitation on Liabilities clause prevents the parties to the agreement from suing each other for additional, extra, and over the top damages.

Recovery of Litigation Expenses (also known as the attorney’s fees clause which is easier to say but not nearly as impressive). The typical attorney’s fees clause allows the winning party of a lawsuit to recover their attorney’s fees and other costs incurred to bring the lawsuit to enforce the agreement.

No Guarantees clause states that the service provider (that’s you, pretty thing) cannot guarantee a particular outcome.

Transfer of Intellectual Property is mega important because it states how and under what circumstances the intellectual property is transferred from the service provider to the client.

Entire Agreement; Modifications; and Waiver. This clause states that what is written in the contract is the entire agreement between the parties. That means that emails, conversations, and other statements made between the parties are not a part of the agreement. This section also requires that any modifications to the agreement be done in writing.

When and how your client should sign the contract

Be sure to send your agreement to clients at the very beginning of your engagement using an electronic signature software like HelloSign. Electronic signatures are totally legit. This not only lets your clients stop procrastinating on signing your agreement, but also helps you stay more organized and on top of your contracts ensuring that you have a signed client service agreement for every client. And it gives scanners everywhere the right to gracefully bow out of this whole contract signing operation. They can retire with fax machines in Barbados or something.

The best protection you can arm your business with is having proper contracts in place between your photography business and your clients, with terms covering what rights to the photos the client is purchasing, the terms of the client’s license to the photos, cancellation clauses, payment terms and all that beautiful boilerplate that is sure to save your ass one day.

Because your photography deserves a great business backing it up – one that’s armed for whatever might pop up.

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Got more legal questions?

We’ve got you covered…

I’m hosting a no-holds barred conversation with Rachel that will be posted here on Thursday. We’ll chat about the Top 10 Legal Mistakes Photographers Make and How to Avoid Them. Plus, she’ll be answering all of your legal Q’s.

Join me and our special guest, Rachel Rodgers, for a fun convo and legal throw-down…

The Top 10 Legal Mistakes Photographers Make
& How to Avoid Them

Thursday, Feb 5th
No need to RSVP. If you’re on our list, we’ll send you a reminder.

Ask your legal Q here by leaving a comment by Tuesday evening, and Rachel will tackle it during our chat.

See ya here on Thursday!

Love,

Christa

ps. Rachel, overachiever that she is, not only took my questions and answered them for you, but she also did 1000% better and created an awesome guide specifically for YOU! Legal Nunchucks: For Photographers started out as a blog post for me and is now an info-packed 64-page guide with all you need to know and essential tools you need (contracts, templates, checklists) to avoid legal disasters, save money, and keep you and your clients happy. Plus you guys save $100 off until this Friday Feb 6th at midnight EST. Check it out.