Rachel Brenke of The LawTog & the host of the Business Bites podcast joins Christine Tremoulet to share her insights on Intellectual Property Law and how it impacts us as photographers. From Trademarks to Copyright, you need to know about these things so that you can protect yourself and the digital assets that you create. Your photographs are your livelihood – you need to know how to handle something if they are not used properly.
Legal stuff might sound like it should be boring, but Rachel makes it fun & exciting!
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For the transcript, read this full post.
The LawTog, the leading legal resource for professional photographers, can be found at http://ChristineTremoulet.com/thelawtog
The Business Bites podcast can be found at https://rachelbrenke.com/pod/
You can follow Rachel on Instagram at @thelawtog and @rachelbrenke
Christine Tremoulet (Intro): [00:00:00] You’re listening to Reframe Success, and I’m your host, Christine Tremoulet. I believe that you can have a successful photography business and you get to define what success looks like for you. My guests and I will help you with actual advice and information on how to get there. I want you to know that I believe in you, and that YOU are enough.
Now let’s get on with the show.
This episode is sponsored by the InstaLocal Prompt Planner, 365 days of ideas that I created for you so that you’re never at a loss for what to prompt on social media to connect with ideal clients in your local market. Learn more InstaPrompts.com
Christine Tremoulet: [00:00:50] Hello everyone and welcome. Joining me today is my friend Rachel Brenke. As some of you may be familiar with Rachel, but if you’re not familiar with her personally, you might be familiar or have heard of her business, The LawTog. So thank you so much for joining me today. Rachel.
Rachel Brenke: [00:01:06] I’m excited to talk about all the legal things today. All the Legal Things!
You’re one of the only people that gets excited about that.
Christine Tremoulet: [00:01:17] Why can’t you just take a second to tell us a little bit about who you are and how you came
Rachel Brenke: [00:01:22] to be the LawTog?
To be the LawTog.
Christine Tremoulet: [00:01:23] Tog?
Rachel Brenke: [00:01:24] Oh man. It’s a long story. We could be here forever, but the short of it is, I am a practicing attorney. I have my own firm that is called Eden Law.
We are a business and intellectual property firms, so we do copyright and trademark work, primarily serving photographers, but it didn’t start there. In fact, I started in the photography industry as a photographer. Helping to support my family. It’s now a family of five kids and three rescue puppies. But I started photography in order to have a creative outlet and do run a business and to help support my family.
And by the time that I exited law school, because I thought that I wanted the career path of going into criminal law, I fell in love and saw a need that photographers had for protecting their livelihoods. You know, being on the ground floor of helping the mom down the street be able to provide for her family or the single individual who this is their entire livelihood. And so I really, really enjoy having the LawTog, now it is a legal resource for photographers. In fact, we’re really the only dedicated legal resource still decades worth of articles, contract template forms, live videos, free videos, paid videos, you name it.
We have it of all the top legal questions that you guys have. Okay. All
Christine Tremoulet: [00:02:46] right. Because you know, it is really true. You said that, and a lot of people don’t know that about me. But prior to becoming a photographer, and prior to working in the web industry, I actually, I worked in the legal field and my favorite legal stuff that I worked on as a paralegal was intellectual property.
And we worked with a very, the law firm I was at, worked with a very large global company on trademarks and copyrights law. So I used to actually sit and ask the IP lawyers questions about trademarks and copyright and things like, can you copyright a recipe? Which you can’t. Then they would teach me all these different things.
I always found this part of the law fascinating, but I also find it fascinating how many people start or have even run for many years a photo business without a contract with their clients. So coming from my background, that was one of the first things I did. But yeah, let’s just like dive right in there.
Why? Why do I need a contract.
Rachel Brenke: [00:03:56] Oh, why do we need anything in business? You know, you get a logo and get a solid brand so that you attract your clients and so you can be remembered. Your marketing goes further. Why do we work on our craft so we can create a good product? Why do we want to worry about the legality, specifically contracts so we can avoid issues.
You know, one of the things that I feel I’m different as a lawyer, especially being in intellectual property and being a photographer myself, is that I approach contracts as a customer expectation setting tool. You know, one of the things that people don’t think a lot about contracts. Well, there’s a couple of things.
First, the pretty well understood idea is that contracts are there to protect you, right? They deliver it for me and they create the legal relationship, but a lot of people don’t realize is that they set expectations, but not even just like legal expectations. They’re setting expectations with your client.
And you’re starting to build buyers’ confidence. The more information that a buyer has, your client, in this case, the more information that they have about how an entire relationship’s going to go, what they’re going to receive, what they’re required to do, what you, the photographer, are required to do, what you, the photographer are going to receive.
And so the client starts to feel an enhanced feeling of buyer’s confidence, and that leads to easier sales, less problems. You know, one of the top issues that I see when it comes to issues between photographers and clients is lack of information or miscommunication, you know? And we can even bridge that over into copyright stuff.
I know we’re really focused on contracts today, but contracts are that expectation setting tool to provide this information. To create the legal relationship and to help prevent issues. I think that’s one of the big things about how I approach my businesses as well as how I approach my advisement of my photography clients at the law firm is we want to be as proactive as possible because you’re going to spend less resources.
That’s time, money, and energy by being proactive and working to prevent issues as opposed to cleaning it up later on. I think one of the big problems that I see with entrepreneurs in general, not just photographers. I’m not picking on you guys, but is you always think, I’m never going to have that problem.
Well, when you have that problem you’re looking at, instead of a couple of hundred bucks to draft your contract up front, you’re looking at thousands of dollars to resolve an issue. You’re looking at time away from your business. You’re looking at loss and branding value lost in a client who you could have prevented an issue with or easily rectified an issue with who could still gone out there and been a good voice box to refer your company.
And so yes, all of this, what I’m saying, people do not understand that is that contracts are like the epitome. They are the center of all of what I’m talking about and preventing issues, keeping time and money in your life so that you can be focused on photography instead of fixing issues. Because I’ll tell you what, even though I’m the attorney.
I don’t really, I don’t feel good making money cleaning up messes when I know something could have been easily preventable. And so when you go to someone have to clean it up for you, who is the only party that wins? The lawyers. And I’m speaking out against all my own kind. We should not, that should not be the way that we win.
I would rather make less money and have a longterm relationship and see the wins of you preventing issues by the use of contracts.
Christine Tremoulet: [00:07:33] So two points came up for me in this one and what you did, but, but it’s all really good points. One that contract isn’t just to protect me is it?
Rachel Brenke: [00:07:46] No. Is to protect both.
That’s one thing. The pushback that I hear from a lot of creatives and a lot of entrepreneurs in general, but particularly creatives, the pushback is. My clients are gonna be scared of this. They’re not going to understand this, or I’m scared of this and well, but it only protects me. And that’s not true.
It’s protecting both. I mean, if you guys just rewind on the episode and I kind of talked about in my very long soapbox already and climbed up real quick. I was saying it’s talking about what the client’s responsibilities are and what they’re going to receive. It’s also the photographer’s responsibilities under that contract as well.
What the photographer is going to receive. The typical exchange is money for photographs, right, but it’s also who, what is your responsibilities within that? Photographer has responsibility to deliver on a certain timeline. Client has a responsibility to pay X amount on a certain timeline. So it protects both.
And I don’t buy this argument that contracts, deter clients or it makes you, I don’t know. I, I don’t know. I just, to me, contracts make you look professional. You know, think about it. You go to download an app on the app store. What is those terms that pop up? It’s a contract. People are used to it.
You’re not going to deter clients,
Christine Tremoulet: [00:09:08] But that was so, that goes right into my second point though. None of us ever read those terms except do you find that a lot of times people hand a client contract and then later on. Like they don’t actually like should we take the time to explain, not necessarily all the legal terms of the contract, but should we also take the time to articulate the key points in the
Rachel Brenke: [00:09:35] contract to are for sure.
And the thing is, if you have a really well drafted contract lawyer drafted, by the way, whole other soapbox, do not write your own. Do not cobble off the internet. It will cause you more problems than it’s worth. But if you have your contract, and this is what I always, I’ve said this for years. If you find old videos on YouTube of The LawTog even like seven years ago, I’ve always said start with your workflow and your contract first cause they’re going to mirror each other.
Your email confirmations, your followups, all communications that you have with your clients are all going to mirror each other. And why is that? Well, if you start with the legal foundations and you marry that with your workflow, you have a really well thought out document. It’s going to make it so that you’ve talked about what’s in that contract during your workflow.
So it doesn’t necessarily have to be the situation. Christine, where I go, all right, sit down, let me get up the stone tablet and let’s write all the contract. Like it doesn’t have to be a crazy formal thing. I do think for more high dollar. sessions in riskier, more liability driven type of work. yes, definitely sit down and explain it.
But if you’re doing a really good job of making sure that your contract, your workflow, mirror each other and you’re communicating, you don’t necessarily have to sit there and read them line by line like death by PowerPoint, right? You don’t necessarily need to do that to your clients. That being said, it’s extremely important that a photographer understands what’s in the contract.
Why it’s in there and why it works like that or how it works so that you’re able to answer questions when your clients have them, and guess what? Questions are okay. You would rather clients ask a question. And you’d be able to explain it or just, you know, hedge off their questions by explaining it upfront, then no one reading or no one understanding or having a misunderstanding and then having a problem once you’ve already signed and you’re in relationship together.
Christine Tremoulet: [00:11:31] Right. Because, and I did do that sensitive work for years. I did boudoir photography work for years, and so there was language in my contract to address that. like the security. Of their images and how their image files will be handled because that confidentiality was also very important to them. In addition to when would I deliver, how would I deliver, but also how would I protect them?
How would I make sure that their images weren’t going to show up someplace else?
Rachel Brenke: [00:12:03] I mean, it’s so interesting to me all the different ways that you can communicate this. I mean, yes. So the bottom line, to answer your question, I didn’t really say. I think yes, you should always explain, but think about all the ways you can use that information.
You just listed it. You would have some frequently asked questions. Have a frequently asked questions on your site that mirrors what your contract looks like. You know, have it even your standard workflow that every time you communicate with a client, you’re using the sandwich method. Whereas the last piece of the bread, you’ve got bread, meat than bread.
The last piece of the bread is telling them what the next steps going to be. Well, that’s going to mirror your workflow and your contract if it’s drafted properly. And so, yeah, it just, it contracts our normal way of life. They should readily be able to understood and explained. And it doesn’t have to be a crazy big thing.
Easily integrate it and you’ll be good to go.
Christine Tremoulet: [00:12:55] But Rachel, I think that contract language is just, I mean, it’s, it’s really icky and it feels. I don’t know. It just, it almost feels kind of slimy. So I want to take my contract and I’m just going to dumb it down into like normal language.
Rachel Brenke: [00:13:10] Is that okay? I’m going to choke you.
No, I’m kidding. I say that with love because Christine’s one of my clients that I love her. you know what’s interesting there is this idea that we have to use these crazy here to wherefore, right. Type of thing with contracts.
Christine Tremoulet: [00:13:27] Therefore
Rachel Brenke: [00:13:29] for
Christine Tremoulet: [00:13:30] whether
Rachel Brenke: [00:13:32] you know what I have when I received contracts like that and like settlement stuff from opposing counsel.
And there’s typically, they’re older, right? There’s just in the, I’ll go through and I like drip red on it and I redline all the here to wherefores. I’m like, dude, this is not England. Like back in like the whatever years. We don’t need to be like calling out the, anyhow,
Christine Tremoulet: [00:13:52] we’re not in 1787 anymore. But, but to the point of like, should I take my contract and just dumb it down into simple language.
Rachel Brenke: [00:14:04] Well, you shouldn’t, but if you have a good lawyer. If you have a good lawyer who understands contract law, business law, intellectual property law, which is something we can talk about here in a second, because a lot of business lawyers don’t really know that area and they understand who they’re working with.
A creative slash photographer. They should already be actively working to do that because if they truly understand your business, what you are like, what your job is, and the client pushback. They’re not going to write it like that. Someone like myself, and I know a couple of other attorneys who work like Joey Vitale and so forth that work in the creative industry with photographers and such.
We know that you guys, photographers are going to receive objections to languaging like that. It’d be scared of that kind of stuff. So no, it doesn’t have to be all crazy. We can dumb it down, but here’s the problem. You, the photographer should not be the one, quote unquote, dumbing it down. And I hate calling it, dumbing it down, really editing it to me.
More plain, understandable language, right? The most important thing is that it’s readily understood and that it conveys and creates the relationship that you want to have you and your client together. Right? And. Whether, if you are all about the here to wherefores, please don’t send me hate mail. You go on with your bad self.
But majority of photographers don’t want that and we can ha, you should have your lawyer write it that way. And I’ve said that repeated thing through here because writing a contract is not as simple as putting words on a piece of paper. I promise you this, we have to think about all the existing contract fundamentals.
We have to think about existing laws in the state. We have to think about all the implications of intellectual property, especially since photographers are a very unique business, right? Most businesses have a business name and a logo. But they may not necessarily be selling intellectual property. You guys are, you’re selling photographs.
I mean, experience services and all that too. But the end product is, and yeah, so just understand that we need to be on the up and up with this and have youth contracts readily understandable contracts. Be able to explain them and make sure that the lawyer drafted.
Christine Tremoulet: [00:16:20] Well, I think that’s the thing that I keep.
I see very often as somebody who. Is a legal geek is that people go, Oh, I’m going to put this in my contract. And you know, I of course, always tell him I’m not a lawyer. I’m not a lawyer. Rachel is a lawyer, but she’s not your lawyer. This. We are talking about legal general.
Rachel Brenke: [00:16:43] Should I talk about that for a second?
So I’m legally required to give that to. I was like, where’s your disclaimer? Rachel?
Christine Tremoulet: [00:16:50] Rachel is a lawyer, but she’s not your lawyer unless you go hire her.
Rachel Brenke: [00:16:54] Yes. So like anything we talk about here is like general legal advice. It probably would be pretty decent to you use where you are, but always check with local council to help you?
Yes. I am legally required by the bar. Anytime they give an educational talk like this. Yeah.
Christine Tremoulet: [00:17:09] Yeah. So now that we got that the way, but what I see people say is like, Oh, I’m gonna add this to my contract. And sometimes the things that they want to add simply are not legally enforceable in their state, so make
Rachel Brenke: [00:17:22] sure.
That
Christine Tremoulet: [00:17:24] what you’re putting in your contract can be in, talk to your lawyer and make sure it can even be enforced. Your contract isn’t something that you just made up yesterday and you’re like, I mean, that’s your, your business process and things like that. Sure. But what’s in your contract has to be enforceable.
Rachel Brenke: [00:17:42] And not even just that. It’s also a balance. And I think this is where I’m a little difference in like Joey’s different too, and a couple of others right. That we also, we know we’re watching, we know all the crazy things that you guys run into with clients, but we also know there’s a balance in a contract that we don’t want to do what’s called provision stuffing.
You don’t just want to throw every, you know, a contingency for every single situation that can happen, which kind of sounds counterintuitive. But that’s where like the legal advisement comes in. You is a non-lawyer.
Christine, may sit there and see something in a group and all of a sudden you’ve added 25 different new clauses that are very specific to situations.
Whereas I as a lawyer can look at that and go, we can wrap up these 25 into maybe a paragraph. So it condenses it, makes it a less potential for issues. That’s another thing like self drafting contract. You could render the entire thing unenforceable, then where are you? Right? Or it can end up being drafted against you because you don’t know legal principles.
So what I always say in these situations is, and I think, yeah, I’m thinking about The LawTog group, my Facebook group, that is what we talk about as legal issues all day long. And what I encourage people to do.
You go to TheLawTog.com and you look at the contracts, you see what we have included. You don’t even have to buy from us, but look what’s included in the contract.
The bullet point list. Take that list. I don’t care. Then go over to The LawTog group. Watch it for a couple of weeks. You’re going to see some crazy stories. That’s like crazy stories, but understand they’re the outliers, right? Not everyone’s rushing to a legal group to tell you how great my contract saved me from an issue, because you may not even realize that it saved you from an issue, but.
Take the list of description, the list of the issues that you see and take that to your attorney. It doesn’t have to be me. It can be anybody. But take that to them. Don’t try to draft it yourself. So I do think that there’s an element of, Oh, we see problems. Stay on top of it. Cause your contract should be a living, breathing thing.
You shouldn’t be a one and done.
Christine Tremoulet: [00:19:46] Right. Well, and I just, I want to reemphasize that. Writing your own contract, you could create a contract that can’t be enforced. I think that sentence is, is very critical for people to hear. Make sure your contract can be enforced.
Rachel Brenke: [00:20:06] Yep. Yep. And that’s where like, I mean, guys, there’s a reason that we take contract law for an entire year of law school.
There’s a reason that it is a huge percentage on the bar exam. Because contracts are everywhere. No matter what area of law you’re doing, you’re inevitably going to run into probably some form of contract. And now don’t send me hate mail. I know there’s exclusions, but generally speaking in the civil world, you’re going to run into the contract, right?
And it’s not as simple as writing it on a piece of paper, but you still should be actively involved in the process of creating it. And that’s, I think where I try to differentiate myself is when clients come to me. We are going to actively talk about your entire business plan and do an entire business audit.
I’m not just an order taker. I mean, if you want me to write contract A, I’ll write contract A for you and that’s fine. But I may also say, okay, but you probably also need this document. You need this and this. So. I share that to say, when you’re looking for an attorney, look for someone that has more of a proactive approach versus like I rolled up at Bonefish Grill and ordered a lobster dinner.
Right? That’s all I got. I didn’t get upgraded to the, and don’t think of it sales. I mean, if they’re actually a good attorney, they’re going to tell you the things that you need.
Christine Tremoulet: [00:21:19] Right? Right. and we, we’ve mentioned briefly in passing my other favorite love, which is copyright law, because I think this is.
It’s an important thing. It’s a du term that gets thrown around accidentally. I seen photographers say on their website, I give all my clients copyright so that they can print their images, but what they really mean, they don’t really mean that they’re giving them copyright. You know, I’ve seen this in so many different forms.
I’ve seen clients demand copyright of the images, and sometimes those clients I work with now mostly with brand clients. So working with business owners, they do actually know what they mean and what they’re looking for. Should we do like a little high level touch on just
Rachel Brenke: [00:22:06] cause I think it’s important.
It’s something that you should. Be part of your education process for yourself, for your photography business, but also for your clients. And you just touched on like the biggest questions that photographers get or the issues that we see. I mentioned it before, that we are in a unique business in that yes, we have a business name and logo.
So we have intellectual property in that, but we’re selling intellectual property, our end product, our photographs, whether they’re digital, print, album, canvases, whatever. And within that, you’re protected by intellectual property laws, primarily copyright, which is going to protect that artistic expression that’s in a physical form, physical, it can be digital.
Right. And understanding that. If you have ownership, you know, that’s going to depend on a couple of things. Are you an employee of a company and photographing for the company? Probably is owned by the company, if you’re an employee. If you’re just a solo photographer, photographing for yourself, and the only way that copyrights can be conveyed to a client that’s ownership to the client is by contract.
And why does this matter? Well, it matters because copyright is actually a bundle of rights. We call it a bundle of sticks. And I love to visualize it that way because each stick represents a different right? We have a right to distribute, to display, to reproduce, right of attribution, et cetera. Those are the big ones, and what you can do is you can either sell the whole bundle to your client by contract.
You’re going to convey it to them. But do they really need all those sticks? That’s
Christine Tremoulet: [00:23:40] what I’m selling them copyright. When they say,
Rachel Brenke: [00:23:44] I want
Christine Tremoulet: [00:23:44] copyright, and I say, cool, here’s the entire bundle of sticks, but once I give them that whole bundle sticks, I don’t have the right to print it anymore.
Rachel Brenke: [00:23:53] You don’t have the right to print, you don’t have the right to use, you know, and not that, in fact, you’ve given them an entire bundle of sticks when they only needed one and they only needed to borrow one.
Right. And what is that one? They just typically want to be able to, well, to I guess, display and reproduce. They want to display it, whether it’s personal or commercial. There’s a distinction on how you’re going to license. Personal is typically done through a print release. So this is our circle back to contracts.
Commercial is typically done through a commercial license. I don’t like the term print release, but that’s what’s in the industry. Cause you don’t, you’re not actually really releasing anything. You’re extending a personal license to Sally. She can print to her, whatever’s in your terms if you want to allow her to only print up to five by seven or she can print however she wants as long as it’s for personal use.
That’s typically the mechanism. The tool that you offer, you know, to convey that to your client is print release. So circling back to what you said. The majority of personal portraiture clients. So I’m not talking about headshots for, for companies, I’m not talking about marketing materials. Something’s going to go on a book, an album cover, any of that. Personal use.
It may be on my Facebook, my personal Facebook. It can be, simply for me to share with my family. That sort of thing is going to be a. There’s often not a need to actually convey the copyright on it. And majority of those clients, when they say they want the copyright or they just say the rights, oftentimes it’s condensed and they say, I want the rights.
Well, what rights are you, is that client asking for a right to own that whole bundle of sticks or are they asking for the right to simply print and use it personally? And I find that it’s the latter. They just need a license and I’m not sitting here just stand in ivory tower and say you should, you should never transfer copyright cause I see, I hear that a lot.
I think there’s times and places for it. It’s all dependent on what you want to do for your business or you made a good point, Christine, once I take that whole bundle of sticks and I convey all copyrights through a contract to a client, I can’t use those for marketing anymore unless I have it like a license back to me.
I can’t reproduce it anymore. Once I’ve handed that all over, I had no more sticks in my hands. I cannot use those photographs.
Christine Tremoulet: [00:26:07] Oh. And one of my very, very first paying clients ever that she asked for copyright. And her, her husband was an attorney. She knew it. She knew what she was asking for, and fortunately I knew what she was asking for.
I confirmed, you know, is this what you’re asking for? Yes, she did not want me to use them for marketing, et cetera. Then she said, well, I was allowed to have prints that I could show to people in my studio, so I could have printed copies and that was it. And then that’s what we made
Rachel Brenke: [00:26:40] sure the document
Christine Tremoulet: [00:26:41] said. Like.
She owned copyright of them and she, she paid me extra for this. I sold it to her
Rachel Brenke: [00:26:49] at
Christine Tremoulet: [00:26:50] price.
Rachel Brenke: [00:26:51] But that way sh
Christine Tremoulet: [00:26:53] because she wanted to control it. She wanted to make sure that I never used them for marketing in a magazine or also there it was, it was an event and there were guests there, so she wanted to make sure I wasn’t going to hand them over to the media.
That was, and I think that’s the best thing to do. When somebody comes to you with this issue, just ask them like when they ask the question, ask questions
Rachel Brenke: [00:27:16] back. Yeah.
Christine Tremoulet: [00:27:18] Because as soon as she said, I don’t want them in the hands of the media and I don’t want, I don’t want you to use them online or in print for marketing.
I said, okay, cool. Here’s my price for that. And then I said, can I use them in person? And it turned out in the end, I never did. I didn’t need to. And. I just, I never did. I didn’t need them for our marketing piece at all.
Rachel Brenke: [00:27:44] I think the big thing there is don’t freak out if a client asks a question, you know, we said this earlier on, welcome the questions, just be prepared to answer it.
And when a client comes to you, this is all about education, is what we were talking about before. You as the business owner have this responsibility, I think to explain copyright, to understand copyright. And it’s funny you said that she was the wife of a lawyer because even before you said that, I was thinking, and I’ll admit it, guys, lawyers are the worst clients, like they’re the worst photography clients.
And. I semi-joke with that. But it’s kinda true cause some of them have ego trips, but don’t assume just because they’re a lawyer or a fellow business owner that they know intellectual property laws. Some of you are business owners. Well, all of you are probably business owners listening, and some of you may not understand the copyright laws of what we’re talking about here.
And that’s okay because now you’re going to go learn about it. But my point in that to say is you guys have to take the responsibility to explain this. Do you need to send them this podcast or give a 10 minute diatribe about copyright law? No. Simply just boil it down to… ask them what usages or are you wanting?
If they say something, say, well, I’m sorry, I’m not able to offer that at this time. Or, okay, cool. Let me, let me get a licensed drafter that does that. Or think about if you’re willing to sell the copyright on the photographs. I think one of the things too, and we don’t need to go too far, I think down on this topic.
But I think it’s worth a thought. You guys, thoughts going while you’re sitting down going, well, do I want to sell a copyright or not? Is what are you really going to do with those photographs? You know what I mean? Like if they’re just a family session, what are you really going to do with them? I mean, are you actually going to go actually try to put them into stock photos?
Are you actually going to go try to license them to, I dunno. Any media
Christine Tremoulet: [00:29:33] unlicensed them to old Navy for an ad campaign?
Rachel Brenke: [00:29:36] Probably not in my mind. Exactly. I mean, if you are fantastic, then you already know what kind of position that you want to take. You just got to think about it like really, what are you gonna do with it?
And I’m kind of actually one of those people that I, I don’t get my clients. An offer, like I don’t give them the choice up front. My own photography clients, I say to them, you know, I retain copyrights. You get a personal license to use it, and if they have questions, then we, then we come to a meeting of that and.
My goal with that is so that I have the options if I want to license it later. If I want to, put these up for display, then I don’t have to worry about having a license back. Cause remember if I hand him the bundle of six in order for me to use even my own port portfolio online and that kind of stuff, it has to be licensed back to me.
But there’s also an element of privacy too. It’s not even just copyright ownership here. If I’m shooting personal portraiture and like the situation you’re talking about. They simply want to, protect it. I’m okay with that because guess what? I’ve got four other clients behind them that I can use on social media.
Is this one really gonna make or break me? No,
Christine Tremoulet: [00:30:43] and that’s the best thing I think that you can do is sit down and think,
Rachel Brenke: [00:30:48] think
Christine Tremoulet: [00:30:48] through. Your opinions, your beliefs, your choice for your business on how you want to handle these things. I made a choice when I, when I switched and went like full time on doing boudoir photography.
When I did that, I made a choice that I had a very strong privacy clause and, I put all, not all the power because I maintained copyright, but I put the power to display images online, sort of back in their hands. Like I made that part of the conversation with them because I understood that a lot of my clients wanted that privacy.
And so when they came to me and said, Oh, do I own the copyright? I would then say, well, what are you looking for? Well, I just want to make sure you’re not posting them on Facebook because I don’t, I almost all the time I photograph teachers and lawyers, both teachers and lawyers didn’t want their images on Facebook, or even online. So I would then say, no problem, I’ll sit with you. I will get your approval per image before I use them, et cetera. And that was outlined really clearly in my contract, but that was the choice that I made. And there are other photographers out there who also make a choice that their contract says, I can use anything I photograph for marketing, because I’ve photographed it.
Just decide where you stand and how you want to approach it.
Rachel Brenke: [00:32:22] Agreed. And you know, I think the big thing to understand here is that copyright infringement, which is someone using the photograph in a way that you they don’t own it or they didn’t have the license for it typically is not going to be your client.
You know, sometimes, but when I, the the classic case, this is the number one thing we do at the law firm. Why majority of you guys come to me. And which by the way, it’s Eden-Law.com – you can just come through The LawTog. But the number one thing that we deal with is copyright infringement especially and particularly against large corporations.
There’s this ma, you know, you would think these large corporations would understand, Hey, I can’t just take an image off the internet and I’m not saying that you photograph for these large corporations and they stepped out of their license. No. You photograph for a client, you delete. Did that all is gravy with you and the clients, but then it’s posted on Instagram.
Either on clients’ Instagram or you’re on Instagram, and all of a sudden, some large corporation decides to snag and use it. You would think these corporations would be educating their teams, but they’re not, but they’re not.
Christine Tremoulet: [00:33:29] It’s always blamed on, well, we had an intern,
Rachel Brenke: [00:33:33] a rogue employee was my favorite. I about spit my
Christine Tremoulet: [00:33:36] coffee out.
Oh, the rogue employee. I was gonna say, I’ve, I’ve, I’ve seen a lot of, our intern must have done it, but yes, that rogue employee.
Rachel Brenke: [00:33:46] I love it though. You know, and I want to say, I don’t care if it was your dog. It’s still happened. You need to pay. But the reason, and I think this is why copyright is so important, A, we need to understand in our contracts with our print release or commercial license.
We need to understand who has the rights to what and who wants what and what you’re selling. You also need to make sure you have it properly drafted and then you need to prepare yourself for when, not if, but when somebody infringes upon your photographs and you never know. I mean, we have big names that are adverse parties rolling through our firm all the time, and it’s photographers.
They always say to me. Never thought they’d take from me. I only have a couple hundred followers on Instagram. They don’t care. And that’s the unfortunate thing. And so you guys need to equip yourself with this knowledge that this is your product, this is your livelihood, and you should get paid for anytime a photograph is used, as long as you’re the copyright holder and stand up for it.
So educate yourself, educate your client, and be prepared in case someone infringes. Cause it’s not if it’s when.
Christine Tremoulet: [00:34:48] There are rogue employees out there everywhere, stealing images. We shouldn’t laugh about it. But that one last point, and I, I realize years, and you, I’ve, like I said, studied copyright law in one form or another for almost 20 years now.
I, I didn’t realize that until you and I were talking earlier this year about the fact that, if I hand the copyright to my client, now it’s their duty to police the image. So in a way, keeping the copyright means that then I’m the one that is also, it’s almost like it’s a service for them. Then the one police in the image, if, if a family photo is stolen and a major company goes and uses it. They don’t have to go through all the hoops to get that company to stop using it. I own the copyright. I’m the one who’s going to reach out to a lawyer. Hopefully I’ve registered it. That’s a, that’s a whole other episode that we need to record some day, but funds of information on the law.
Talk on how to register and why you should register your images. But I’m the one that’s going to end up policing it and making
Rachel Brenke: [00:36:09] sure
Christine Tremoulet: [00:36:10] that it’s used properly. They don’t have to deal with doing that. So yet another way, if you wanted to spin it as like a perk for your client of why you’re keeping it.
And a minor point here, if somebody has a studio where you have associate photographers or second shooters, you know, like if you’re a wedding photographer, you have seconds. You need to make sure that you have documentation in place with them to handle copyright as well. Because that. That gives them, that gets into the legality of who owns the copyright when you’re an employee and everything, like who’s an employee versus who’s a contractor, and that’s that whole part of contract was still has a lot of bumps in it, doesn’t it?
Rachel Brenke: [00:37:05] Yeah. You know, it’s not a, the, the, the copyright law and the landscape of it. Even in light of the new push that PPA is making for this supposed small claims despute resolution when someone steals your photographs. Yes. The copyright law leaves a lot to be desired. and there’s a lot of changes that need to happen.
So. Hopefully I think that this will hopefully be a change that’s coming, a good change. at least it’s a little step in the right direction. So really my, the biggest things is like what we’ve talked about here, know your rights. Know that in the United States you create it, you haven’t signed it over and you’re not an employee, you own it.
It’s called unregistered. And, but I recommend, and we, again, we could do it a whole other talk. Maybe we’ll do it in the future and copyright and, but you should be registering your photographs because registration does a few things. It elevates the damages. It makes it hard for especially large corporations to ignore your demand letters and they can just simply ignore, because without a registration, you can’t file a federal lawsuit.
Not that I’m recommending it, but they know there’s no real threat of that without that registration. And so. Yeah, it just, it’s, it doesn’t mean you can’t recover when someone infringes, you know, we’d do demand letters all the time at the firm, and we get recoveries all the time. It just . It ends up putting you the photographer in a position that you have to pay out the money, and this is just, this is just frustrates me at the copyright rate system right now, is that the innocent party, the wronged party is the one that has to pony up the money and in order to assert the rights.
But at the end of the day, it’s a part of cost of doing business. And you can reduce that cost by educating clients, registering your photographs, and staying on top of understanding what’s in your contracts.
Christine Tremoulet: [00:38:52] Have a contract.
Rachel Brenke: [00:38:53] Have a contract.
Christine Tremoulet: [00:38:56] I feel like so often that’s a, the rally cry in the LawTog facebook group is, what was your
Rachel Brenke: [00:39:03] contract say? Well because? Think about it. I mean, you get into this legal relationship and then all of a sudden, you know, client asks a question and you’re the photographer, like, well, I don’t know. Or you asked the client a question. The client’s like, I don’t know. How would you have resolve that? By having a written contract.
I mean, if you put everything in one place of who’s supposed to do what, there should be no question. Right.
Christine Tremoulet: [00:39:24] All right. Any of… I feel like you’ve given us so much amazing information. I’m going to link to TheLawTog.com and also, Eden Law. Eden-law.com is the firm. You can be found on Instagram. Everywhere. I would say you can be found on Instagram, you can be found on Facebook you can be found more than once on Instagram,
Rachel Brenke: [00:39:48] I am hording Instagram accounts.
Christine Tremoulet: [00:39:55] Any, any closing tips for success?
Rachel Brenke: [00:40:01] I think the biggest thing is, this was a lot of information. I talk very fast cause I tried to get a lot of info out. I really highly suggest that you go back and re listen to it and make a checklist and understand everything we’ve talked about is something that you should be doing at least yearly.
Like you meet with your CPA, hopefully yearly. Same thing. Get an attorney relationship. I’m happy to do it. We have a host of counsels all across America and
But unfortunately not
Christine Tremoulet: [00:40:30] Canada.
Rachel Brenke: [00:40:32] No, not Canada. I’m working on it. So the you’re first to know, I’m working on it, but we, I just really suggest that you get in with a good attorney. One, hopefully that really understands copyright laws and you guys have seen that it impacts us greatly and.
Create the relationship and educate yourself in this, because I hear it time and time again when I have someone on the other end of the phone who’s sobbing to me because they might lose their business because they didn’t set up an LLC and they’re about to be personally sued, and they’re like, but this is the income for my family.
Or they’re so upset at a large corporation for taking their photograph and putting it on the side of a cruise ship. And. Then I have to say, well, did you register it? Did you take these steps? And I’m like, well, no. And I’m like, well, it’s going to cost more money and time to fight. Like I hate delivering the bad news.
And guess what? You don’t have to wonder what to do. The LawTog has all of this for you. We have business checklists, we have free contracts, we have all sorts of things. So. Really long winded bottom line, re-listen to this episode, write notes, then head over to the LawTog and just even just message the team and it’d be myself or someone else through our chat and say, I’m new.
Where do I start? And we will help you.
Christine Tremoulet: [00:41:43] Yeah, and I’m definitely, I’m a also link to a checklist in the show notes to help people out so that that way you can get information together. But. It’s so, so important. Such an important foundational thing, and a great reminder too, for those of us that maybe have had a contract in place for years that we’ve been using, you know, review it to make sure it’s still saying what we want it to say.
Rachel Brenke: [00:42:14] That’s huge because we’ve had clients who have not gone back and they just keep sending out contracts. They think they’re doing the right thing and they had pricing from five years ago. And they’ve been bound. Oh, yeah. I had this happen to a wedding client. And they, because they didn’t do that yearly evaluation, her prices had gone up.
It had been five years since she had updated her contract and it did not reflect her new pricing.
Christine Tremoulet: [00:42:37] And while we, you know, kind of joked about how none of us read it, the accept the terms things on our mobile devices, when we download apps, some of your clients will actually read your contract and come back to you and say, well, this says this…
Rachel Brenke: [00:42:51] Why are you sending me an invoice for 4,000 more?
You don’t, your contracts 4,000 less
Christine Tremoulet: [00:42:57] Right. So important.
So thank you again for joining us today.
Rachel Brenke: [00:43:04] Yes, of course. If you guys have any questions, please don’t hesitate to reach out. Like, you know, we have the paid for stuff, we have the firm, we have the templates and all that. But really the primary focus of the LawTog is to get you guys the information.
So just reach out if you get overwhelmed and we can help.
Christine Tremoulet: [00:43:20] Okay. Thank you again. You are so awesome.
Rachel Brenke: [00:43:24] Thanks. Have a good one.
Christine: [00:43:25] Thank you again so much for joining us. Show notes for this episode are available at ReframeSuccess.com. If you enjoyed this episode, please share it with your friends and be sure to leave a five star review.
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Thank you again. Until next time!
