The Legal Side of Photography with Attorney Ruth Carter
The TOGCHAT Photography Podcast
When it comes to the legal side of photography, too many photographers keep their heads down and hope for the best. It goes without saying that is a big risk. The legal aspects of being a photographer don’t need to be risky and they don’t need to be difficult to understand. My guest this week puts it in simple terms.
Ruth Carter is an attorney based in Phoenix Arizona who specializes in Intellectual Property, Internet Law, Business Law and Litigation.
Ruth has written three best-selling books on guerrilla marketing and social media law and has been featured in the Wall Street Journal, Entrepreneur Magazine, and on NPR.
In addition to speaking to numerous camera clubs, Ruth is also the creator of the online course Lights Camera Lawsuits: The Legal Side of Professional Photography.
Ruth who uses they/them pronouns makes the law easy to understand and that is exactly why I wanted to speak with them. Regardless if you are shooting for fun or profit, I am confident you are going to gain some valuable legal knowledge from this conversation.
Transcript | TOGCHAT Resources
Lights Camera Lawsuits: The Legal Side of Professional Photography
The Legal Side of Professional Photography with Attorney Ruth Carter
Do you copyright your photographs? Do you use a modeling release every time you photograph a model? If you photograph the model in front of a giant wall mural, do you get permission from the creator of the mural? Do you use contracts with all of your clients? I know some of you are already hanging your heads because you hate this topic and don’t understand all the legal stuff, you’re going to thank me for this interview.
I found an attorney who is easy to understand and is very open with infection. Stay tuned.
You’re listening to the TOGCHAT Photography Podcast, the only podcast dedicated to the HOWS and WHYS, behind creating consistently great photographs. Here’s your host, Joe Edelman.
Ladies and Gentlemen welcome to The TOGCHAT Photography Podcast. I am your host Joe Edelman and my mission is to help photographers like you to develop a better understanding of the HOWS and WHYS behind great photography.
This week. My photography thought is actually a light bulb joke. So you’ve been warned.
How many photographers does it take to change a light bulb? The answer is 100. One to change the bulb and 99 to say, I could have done that because I saw it in a YouTube video.
I know I’m going to take flack for that one.
Next up is a TOGCHAT exclusive interview.
My guest this week is Ruth Carter. Ruth is an attorney based in Phoenix Arizona who specializes in Intellectual Property, Internet Law, Business Law and Litigation. Ruth has written three best selling books on guerrilla marketing and social media law and has been featured in the Wall Street Journal, Entrepreneur Magazine, and on NPR. In addition to speaking to numerous camera clubs, Ruth is also the creator of the online course Lights Camera Lawsuits: The Legal Side of Professional Photography.
Ruth who uses they/them pronouns makes the law easy to understand and that is exactly why I wanted to speak with them. Regardless if you are shooting for fun or profit, I am confident you are going to gain some valuable legal knowledge from this conversation
So let’s dig in….
Ruth Carter, thank you so much for joining me on TOGCHAT. I really appreciate you taking the time.
Ruth Carter: [00:02:31]
Thank you so much for having me.
As mine. And I have to tell you I’ve been binge-watching the question and answer videos that you have on YouTube.I love your energy. And I really appreciate the practical explanations that you give as answers to all my listeners. If you haven’t seen these, you really should check them out. It is a short question and answers theories with practical, easy to follow answers. And I also appreciate that the answers tend to lean more towards practical solutions, which I really respect. So Ruth, thank you for sharing and posting that really awesome.
Ruth Carter: [00:03:09]
Oh, well, thank you. Actually, all those questions come from real people who watch the videos who say, okay, now I have this question. So that’s where they all come from.
If you would please share with my audience a little bit about the work that you do.
Ruth Carter: [00:03:21]
Sure. I am a licensed attorney based in Phoenix, Arizona, and my practice focuses on business. Intellectual property and internet law. And then on top of that in my not so spare time, I am also a model. So I like to say that I work on both sides of the camera without ever picking up one myself.
Why internet law instead of some other type of legal practice? I noticed on your website; you talk about getting hooked on the social media aspect of the internet when you were in law school. What led you to that?
Ruth Carter: [00:03:53]
When I was in law school, I started doing flash mobs, like those various kind of cranky things and unexpected performances coming out of nowhere. And all the people I did those with were like social media, marketers, professionally. And so through them, I got involved in it myself. I got involved in blogging and we always had the questions of how far can we push the off?
Before crossing the line. And so that just naturally evolved into areas of first amendment, copyright, trademark privacy, and everything linked back to the internet. A lot of it came out of having to know for myself what I could and couldn’t do online. And then in turn, having to help other people figure out the same for themselves.
I would assume by now that’s probably become a substantial niche in in the legal field, especially with a lot of the bigger YouTubers who are really pushing the envelope constantly. I guess, there’s a demand for that at this point?
Ruth Carter: [00:04:54]
Demand for it. And then there’s also the issue of people trying to make a name for themselves and taking it way too far, causing controversy, sometimes legal problems. And yeah, one thing I’ve learned over the years, it’s definitely much easier and cheaper to prevent problems by doing a bit of homework on the front end than having to clean up the mess on the back end when people don’t do that.
That’s great advice for any small business owner, definitely words to live by. On your website, you use the tagline everything you need to know about contracts, copyrights and more, I think that’s a great way to divide our conversation. To begin with copyrights. I think the most common question that I get from photographers regarding copyright is, Do I need to file a copyright for my photographs, and do I need to file a copyright for every one of my photographs, or only the ones that I want to sell or put on social media? What’s the right answer?
Ruth Carter: [00:05:53]
So the answer to every legal question starts with it depends. And let me preface this by saying, I am here today to provide just general legal information. Nobody walks away thinking that this is legal. Having said that, copyright registration is not required to get copyright rights.
You get copyright the moment you have an original work of authorship fixed in any tangible medium. So for a photographer, the moment you snap the shutter ad, it’s either an image on the film or a digital image in your camera. You have copyright in that image. There are really only three situations in which it makes sense.
To register your copyright. One is if you’re going to sell your copyright, because by having the registration, it adds more value. It demonstrates that you own what you claim you own because who would register a copyright. They don’t own. If you are going to license your copyright, it’s valuable to register it, and then the big one is if you are planning to Sue in response to a suspected copyright infringement situation, because in the US you can’t sue for copyright infringement, unless you’ve registered your copyright with the US Copyright Office. So that’s kind of a gray area for some people where they have trouble wrapping their head around.
You have a copyright, the moment the image is created, but you can’t sue for infringement unless it’s registered. And when you register determines if you’re eligible for those statutory damages, where you hear about people claiming that they are eligible for $150,000 per image in the US.
Now, that’s separate if I understand correctly – so please feel free to correct me, but that’s separate from the idea of I found somebody using my image on social media and I want to file a copyright Takedown notice. That’s not really the same thing as filing for damages, etc. That’s just having the image removed, so they’re no longer using it. Correct?
Ruth Carter: [00:07:53]
Correct. I think what you’re referring to is the digital millennium copyright act MCA, where you can send a DMCA take down. Notice if you see somebody. Using your photograph without your permission, it’s basically a situation where instead of dealing with the person who you believe stole your work, you’re dealing with the company that hosts the website, where the image was found.
So yeah, you don’t have to register in that situation. You just have to send a note. To the website that complies with the six requirements of the law. I’m not going to go into that, Google it. And it’s only something that’s really worthwhile to do if the hosting company is a US company, because let’s say it’s a Canadian company, Malaysian company, Australian DMCA is an American law.
So if they’re outside the U S they probably don’t care what the US law is, so that’s something to be mindful of. But in general, if your goal is to just get someone to take down your photo and you don’t want to deal with them, you want to deal with their website. DMCA takedown is one way to do that.
Is it a fair statement to make that most American based web hosting companies, and even the social media platforms, are reasonably compliant with the DMCA takedown notices? I do run into photographers with the attitude that there is no point in filing a complaint because it will likely be ignored. but my experience has been that they do take care of the situation if you file the complaint properly.
My experience has been that they do take care of the situation. If you filed a complaint properly
Ruth Carter: [00:09:28]
They do take care of the situation, because if they don’t, then they could be held somewhat liable for the situation if you do continue to pursue it and sue. The challenge with the DMCA is it’s not the web hosts job to determine if infringement has happened.
Their jobis to comply with the takedown notice when they receive it. However, once an image is removed because of a takedown notice the person who posted the image can just respond with a counter, take down. Notice that basically says, Hey, got your notice. I don’t know what this person’s talking about.
I’m not using their image. Please put the photo back up and the web host has to let it go back up because that’s not their job to determine if infringement has or has not happened. So it’s a great way to get images removed when you’re dealing with somebody who probably doesn’t know how the law works in a DMCA, takedown is going to scare them into not doing that again.
But for the savvier person who either doesn’t care or is being a jerk, they know they can get the image put back up with a simple counter, take down notice.
What would be your recourse if you’re a copyright owner, and you file a DMCA and this savvy website owner has decided “No I’m, I’m not going to take this picture down.” Maybe they’re claiming it’s a derivative work or fair use whatever, but they’re not willing to take it down. What recourse do we have? It’s not like we would be suing for value or would we? Is that a situation where the filed copyright would really help?
Ruth Carter: [00:11:02]
Yes, because once a DMCA takedown notice fails because they’ve filed a counter notice.
Then you may be in a situation where the only option left that’s going to have any weight is to file a lawsuit. Depending on the circumstances, you may be in a situation where you may end up paying your lawyer more than what you would collect in the lawsuit.
If it’s an image that I have not filed for copyright, I could still use an attorney and use the courts to sue to have it removed, but I would not be able to sue to have it removed and then claim you owe me X, thousands of dollars for damages, am I understanding that correctly?
Ruth Carter: [00:11:45]
You would have to find a claim you could use that wasn’t copyright infringement because the requirement for a copyright infringement claim is you must have the registration completed before you filed that lawsuit. So you would need another grounds for filing.
Ah – ok. Another thing I find is that many photographers think that since it is dealing with the government it must be some really convoluted difficult process. What is the process for filing a copyright? And should I hire an attorney like yourself, or can I do it myself?
Ruth Carter: [00:12:19]
Yes. Should you do it yourself is a question you have to answer on a case by case basis. So you can register your own copyright. You can go through copyright.gov, create an account, submit your own application. It is not the most user-friendly process. They could have probably done it as a one-page form, but they turned it into like 12 tabs that you have to go through one by one.
Especially, if it’s a situation where you are registering your own work, you’re like, why am I putting in my name and address over and over again? It’s redundant. I tell people if you want to do it yourself, you can. I recommend you give yourself a full afternoon. I make sure it’s quiet and have your favorite beverage waiting for you when you’re done. I did my own copyright registration the first time for my first book. And I knew what I was doing. I had a law degree, I even have a certificate in intellectual property and I knew what all the legalese meant. It still took me an hour just going through it the first time, because it is just not intuitive or user-friendly. For people who want to incorporate copyright registration into their workflow. I recommend that you hire a lawyer for an hour to walk you through your first registration. And then once you know how to do it, you can do it yourself. If you’re going to register a collection, it’s even more complicated than I definitely recommend that you have lawyer assistance to do that.
What defines a collection in terms of registering copyrights? I have heard that you can cut down on costs by registering a collection or large group of images all at once. So, in addition to what is involved in that process, are there and reasons I shouldn’t do it because I am potentially putting myself and my rights at risk?
Ruth Carter: [00:14:14]
It used to be that if you registered a collection. And let’s say two of the images were used without permission that because they were in one collection that you only had one claim for copyright infringement versus had they been registered as individual works, you would have had two claims that’s gone away.
As I understand it, you now can file two claims based on a collection. So there are fewer reasons to not do a collection. At this point, the challenges with the collection, it actually has to be a true collection. Meaning you can’t just take every photo you’ve ever taken and be like “There’s my collection”. There has to be a cohesive theme, whether it’s photos from an event, Or I helped a photographer do a collection registration of photos of vintage cameras. And that was his collection. It is more work on the front end because you have to have all of your images in the right size.
And the right format has to have a certain name. You have to have an Excel spreadsheet of the list of your files. By like file name and title of each one and you have to upload them in that order. So it’s little things that make the process bigger, but given that a single application is $55 and I believe a collection is also that much.
So, a hundred individual applications versus one application for a hundred photos, you can see how it’s much more cost-effective in the long run.
There are a few web based utilities to help with all of this. The one that comes to mind is Pixsy.com. They offer help you find cases of image theft and then also help you file DMCA takedown notices. You upload your images, especially images a you have potentially shared on social media or that you have in an electronic portfolio on your website, you upload them into their database and then they scour the internet constantly monitoring and looking for those images, and they have a tool where you can just click a button and it’s going to send that website owner a message to let them know they have your image posted without permission and ask them to remove it. They have also automated the and simplified the process of filing a copyright for an image. Is this a reasonably safe process in your mind or is it a situation where I might be saving a few bucks, but I am leaving myself open to not being able to recover value from my images?
Ruth Carter: [00:16:47]
I guess what I would do in that situation is read their terms of service to see exactly what they are doing. I would look at their track record and say, this is what they offer. How does it play out in real life? Is it quality? I’m trying to remember what are the rules for copyright registration by a third party? I know it can be done because publishers register the copyright of books that are owned by authors.
So I know that can be done. So as far as, so thinking off the top of my head, I don’t see why not in theory, as long as the practice matches. And it makes sense for your business to do registrations. I don’t endorse just Willy nilly. Let’s register everything. If there really is no reason for you to do it in the big picture of what you do, that sounds like a waste of money.
But otherwise, if you are someone who will sell your copyright or license your images, you do want to sue. I would make sure those registrations go in at the right time to maximize the damages you could collect in the event of a loss. That’s how we, the only thing I would be concerned about with using a third party provider, even if you’re using a lawyer, it’s still, the timing really matters.
So I want to make sure that you have those I’s and T’s dotted and crossed respectively to make sure that you’ve set yourself up for the best outcome to the worst case scenario if it happens.
It sounds like you should be filing the copyright as soon as you have completed your work on those images or completed the collections, because the longer that they are in the Library of Congress database, the more you can recover: correct?
Ruth Carter: [00:18:26]
Yes. There’s a window of time in which you have to register your work in which to get those maximum damages it’s within. Oh gosh, I am not going to be able to quote it at the moment, but it’s small. It’s one to three months after like one has to do with after creation. One has to do with after publication, the paper doing internet based. Putting something on the internet, it does not equal published under the law. So it has to do with the date of creation. So you do want to have it very soon after creation that work gets registered.
Given that today’s cameras and smartphones record exif data that embeds dates and times into the file, is there any legal value to that data. Do the courts consider that information at this point?
Ruth Carter: [00:19:13]
Yeah, definitely metadata can help you to show when an image was created, what device was used to create it. So that way, if it’s a, he said, she said situation over who owned it, who created it first? Having the metadata that maybe shows what device was used.
And you can say, this is what the metadata says, and this is my device. And so you may not be able to definitively prove that you took the image, but you can put out more at more and more evidence to demonstrate that it was you who took it, or at least your device compared to them who maybe they can’t say that this metadata matches a device they had at that time.
Even the idea that maybe you posted the image on Facebook a month before somebody else posted that image. That’s also going to work to your benefit. I realize that that doesn’t guarantee you a win, but it’s one more piece of evidence that you’re telling the truth. Is that correct?
Ruth Carter: [00:20:09]
Okay. So I file a copyright – how long does it last? Do I own that copyright in perpetuity, or is there an expiration date, kind of like trademarks and patents? How does that work?
Ruth Carter: [00:20:22]
So trademarks and patents do have to be renewed at a certain period of time. Trademarks can be renewed indefinitely, as long as you keep using it.
A patents maximum life is 20 years. Copyright does not require any renewals, but if they do expire that’s when you hear about works entering public domain for a work created by an individual, it is the life of the author. Plus 70 years. So you have to think about who gets to, who gets your copyrights when you die, and consider putting that in your will.
And then if a company created a copyright, it is 120 years from creation or 95 years from publication. Whichever happens first.
Wow, okay, and unlike the patent situation, that’s not something that you can renew in a hundred and twenty – it’s expired at that point. It goes into the public domain?
Ruth Carter: [00:21:18]
It’s expired. It’s public domain. On January 1st, I like to do a Google search of what just entered the public domain. And see what’s newly entered. And keep in mind. Our current copyright law went into effect January 1st, 1978, for things that were created prior to that, a different copyright law will apply.
Oh really? Is that longer or shorter? What are the big differences?
Ruth Carter: [00:21:42]
It’s shorter. It used to be that every, this is the rumor that every time Disney’s copyrights were about to expire, they would petition Congress to change the lot, to make it longer. So that’s, that’s how we got that.
Who knew we had a mouse to thank for that right? That’s pretty cool.
Ruth Carter: [00:22:03]
Disney is very diligent about protecting its intellectual property.
You mentioned earlier about the issues with international enforcement of your copyright. What happens if I take a picture and I post it on social media, and someone uses that image for – let’s say product packaging. Do I have any real recourse that’s not going to cost me more than what the photo is worth? Also, are there countries that have an exchange or respect for each other’s copyright laws, or is that just my wishful thinking?
Ruth Carter: [00:22:34]
Well, we do have, what’s called the Berne Convention. It’s a. It’s an agreement between countries where each one agrees to respect the copyright laws of the others, but that doesn’t add to enforcement.
It just says we respect what your laws are. So I saw this happen where the artwork was used for attendee badges at Phoenix Span Fusion used to be called Phoenix Comicon. And it was a mashup of Angry Birds and Marvel Superheroes. They were like, so it was angry birds wearing superhero costumes.
And that was on one of the badges. And shortly after the event, this image of the angry birds in the costumes was on a t-shirt in Malaysia. So the artist has rights. They could register that work. They could file a lawsuit. In the US saying, this XYZ company has violated my rights, but then you have to serve that company in Malaysia.
So that means you have to be able to find them and to be able to navigate the situation to serve them. And let’s say you get them served, they’re probably not going to respond. You’ll get a default, you’ll get a court order that says you win. You get XYZ amount of money, but then you have to collect and good luck with that.
So in general, if you’re getting out of the country, unless it’s a bigger name, entity who you, who was allegedly. Violating your rights. It’s not worth it. I did work on a situation where I had a client who used video footage owned by an entity in Switzerland, and they were posting it on YouTube with commentary.
So it fell under fair use. And this company who owned the copyright in the original footage kept sending take down notices. And we were actually able to bring a claim in California, where YouTube is based against the Swiss entity based on copyright and serve them. But it was complicated, it had to be translated. It was a pain in the ass, but it was a situation where we won. We had the means to collect because it was Switzerland versus if it was like middle of nowhere, Siberia probably not worth it. So you have to look at the totality of the circumstances to determine. What’s well, what’s worth pursuing.
You just mentioned Fair Use. I’ll admit I struggle with this because I don’t entirely understand the guidelines. Even when I do my YouTube live streams, there are times where I may be discussing an article on one of the photography blogs and I tend to avoid showing the web page with the article which my understanding is – I could show it. My wife is a college professor, so of course for education, there’s a whole different kind of set of guidelines for fair use so as it applies to photographers and what do we need to know about fair use?
Ruth Carter: [00:25:40]
Fair Use is based on the premise that everything is created, that is inspired by something else. So the line between what is a derivative work and what is fair use?
Is very fuzzy, muddy, muddled. It’s not clear. If the law were clear, we wouldn’t need lawyers. So if you are using somebody’s work for education, especially if you are in an educational setting, like a high school college, you can probably use whatever you want under fair use. As long as you are using it to teach, there have been stories about, allegedly, Disney sending take down notices or, cease and desist letters to daycares for showing Disney movies. I can’t verify it, but if you are doing commentary critique, those are areas where fair use. Applies. And so if you are like putting up a photo of like photographers, you’re putting up a photo and you’re going to critique, like what they did like original image versus final images.
And what did we do in Photoshop to make this happen? And saying like, this was good and this, this is what I would have done differently. That sounds like critique and commentary to me. So that’s probably okay. Likewise news reporting is protected by fair use. So that’s why you’ll see TV newscasts using anything they find and using it in their story like, oh, well we found this on Facebook.
Like, Hey, there’s this great big fire. And this guy posted footage from his house without having to give compensation or credit or anything like that. And the person would be like, Hey, that’s my stuff. It’s like, yeah, they’re the news. They can use whatever they want for reporting the news. So, and then you want to look at, is the person building on the original work in such a way.
That they’re not interfering with the original artists’ ability to make money. Like parody is protected by fair use because yeah, the idea is nobody’s going to go looking for the original yeah. Except yours as a viable substitute. So if you’re in that situation where like, yes, it’s similar, but different enough, I’m not stepping on the toes of somebody else.
I’m not interfering with their ability to make money. That’s a good indicator that what you’re doing is fair use. We even saw that with Richard Prince, he did this thing, which I disagree with the court’s ruling. He took people’s. I think it was Instagram photos with the comments, turned it into something for a museum, added one line of his own, like what his own comment would have been the rule it up on a museum wall and was selling it for like $90,000.
I looked at that and say, Jerk like you are ripping off these people. And then the court said, Nope, that’s fair use. So did you, can’t you can’t always predict.
The scenario that you mentioned were – if I were looking at somebody’s photograph and saying, “If I would have done it, I would have done it this way”. Let me take that one step further. If I said, “I don’t like the way they did it and I would have done it this way”. Is there an argument for that photographer or that content creator to be able to say, wait a minute, he is trash talking me and my work and that’s impacting my ability to make money? Does that loophole work, both ways?
Ruth Carter: [00:28:57]
I guess the question would be for me, what are you saying when you trash-talk them? Because just saying I don’t like their work. I don’t like XYZ. That’s your opinion. That’s like going on Yelp and saying, I didn’t like the restaurants’ food. That is your perception, your experience. Versus if you go on and say, This artist kicks puppies and they don’t kick puppies. Then we call that defamation.
So as long as you’re not stepping over the line, that way, just merely disagreeing with somebody and saying you don’t like their work. The fact that they say, Hey, you’re hurting my business because you’re saying bad things about me. Maybe that means that other people just agree with my assessment of the quality of your work. Like that’s not my fault that you’re not a better photographer.
How can I protect my photos on social media or better yet, can I protect my photos on social media? If, if I post a picture on Facebook or Instagram, is there any way for me to actually protect it and make sure that it will not be absconded and used for some other purpose?
Ruth Carter: [00:30:04]
Probably not. I mean, even if there’s something that interferes with someone’s ability to download a copy, they could just take a screenshot of it and then just re-crop it. So. No, you probably can’t stop somebody from stealing your work. You want to have your ducks in a row so that you are prepared when it happens that you just know, okay.
I already knew that when my, my, my work got stolen, I wanted to do XY and Z. You had, you’ve done all your homework so that when it happened, you just know, okay, here’s the game plan. This is what I do.
Talking about that game plan? What is the right game plan? I see somebody is using my photos without authorization on social media. Do I go all testosterone and send nasty messages, or do I get an attorney right away? What are the best steps to take in this situation?
Ruth Carter: [00:30:52]
When I’m dealing with a client who has a copyright issue like this, I asked them, how do you want this to end? And depending on what they want tells me what path I have to take to help get them there.
So if it is a situation where they just want the person to stop, then that’s either a situation where we want to do a DMCA. Take them. We want to send a cease and desist letter. And depending on the circumstances, it may be a situation where I help the photographer or the artist, whoever owns a copyright craft, a letter to the person that says, Hey, I love that you love my work. But,This is why you can’t use it. And I really hope we can resolve this without getting lawyers involved, something to that effect, even though no one needs to know I’m already involved. And then if that doesn’t work, then they get the nasty gram from me saying respect my client’s rights.
You have to take it down. Otherwise, we will consider further legal options. So I would tell my clients never threaten anything that you’re not willing to follow through on. Don’t threaten a lawsuit unless you’re willing to pull the trigger because otherwise if they say, all right, like sue me, what are you going to do?
Like you have to be ready to do that. Otherwise, everything you say from then on holds. So, yeah. So do you need a lawyer involved from the beginning? Not necessarily. You just have to think about how I want this to end? How would I want this situation to end and work backwards? And then that tells you what you need to be prepared to do.
I think that’s a great lesson for any photographer that’s dealing with this. Before we get into contracts, let me ask you about photographers working with models, shooting for fun, for creativity for art, so we’re not talking about a major company and a big commercial shoot. Who owns the copyright to the photo if the photographer is photographing a model or another person
Ruth Carter: [00:32:44]
The copyright owner is the person who creates the image. In terms of photography, it is the person who clicks the shutter. So the photographer owns the copyright. The model has rights to their image. So if you don’t have a model release, you may be in a situation where you own the copyright in a photo you’re allowed to have it. You’re allowed to. Manipulate it in terms of like your craft, you know, Photoshop it do whatever. But without that model release, you can’t make money off of it. You can’t use it to promote your work. You can’t put it in your portfolio. You can’t enter it into contests, but in terms of, is it okay to have it? Is it okay to work with it? Yes. A lot of people assume that because they’re in the photo, they own the copyright and that’s just not true.
You talk about selling it or profiting from it. That would also apply to putting it on social media then if I am understanding correctly. It would be inappropriate without a release. Is that correct?
Ruth Carter: [00:33:45]
Exactly, because if you are somebody who is a professional photographer, there’s an argument that every time you post a photo, you are promoting yourself as a professional. Therefore always have a model release. If the person is identifiable, if it’s a situation where like, let’s say you’re bodyscaping and there’s no face, there’s no tattoos there’s no identifiable birthmarks. There’s no issue there. Or say you’re doing something cool like shadows and you can’t identify the person then that’s okay. But if it’s an identifiable person, you need that model release.
Ok – let’s take this a step further. It is trendy – we see it on Instagram all the time – to photograph a model and in some cases even products like a car – in front of other pieces of art. An example would be a giant wall mural on the side of a building. I know you recently weighed in on a case like this, but that’s something that I think we sometimes innocently forget that the mural was created by someone which by default gives them copyright over it. I realize that lack of thinking isn’t an excuse for the law, but what are the ramifications and what are the appropriate steps to take as a photographer if I want to photograph somebody in front of a mural and possibly use that image for commercial purposes. What should I be doing first?
Ruth Carter: [00:35:10]
Whoever owns the copyright gets to decide how they respond to suspected infringement. So if they either don’t know or don’t care about what you’ve done with their work, you will never get in trouble. And in our Instagram based world, we do see situations where people put up paint or paintings on walls with the intent of people to stand in front. To do photos,
Ruth Carter: [00:35:35]
Exactly. I just passed a set of them this morning in that situation, if there’s an implied license of, we want you to do this, please use this hashtag. So in that situation, you probably don’t have to worry because there’s an invitation to use this as your background, but let’s say it’s a situation where it’s a building with this really cool mural and you want to do someone somewhere.
Kid comes to you and says, I want to do my senior portraits in front of it, or in the situation I weighed in on a car dealership, put their vehicle in front of this mural, take a bunch of photos. And that was part of their marketing campaign. They got a cease and desist letter from the owner of the copyright of the mural saying, no, you can’t use my mural without a license.
So it’s the same thing as if you were putting wall art on a set for a TV show, you have to get a license for that. So what I would do is I would look at the mural to see if there’s some type of signature on it because most likely whoever did the mural owns or co-owns the copyright or at least used to own the copyright.
And they can tell you, here’s who currently owns it, or this is the license requirements. If you want to use it, alternatively, if it’s on the side of a business, you can ask the business, Hey, who did your mural? Do you know who owns the copyright? Because there may be a situation where as part of the contract between the business and the artist, the business acquired the copy.
So you have to ask permission from who owns the copyright, because there’s no value in getting permission from somebody who doesn’t have the authority to give it to you. And I’ve seen situations like that.
I realize it’s not a guarantee, but do you find from your experience and let’s use the car dealer and the mural situation… had that car dealer taken the time to at least do the research to find out who the copyright owner was and then make sure to ta the artist or reference the artists or give the artist credit do you find that that artist would likely have been a lot less ticked off? I realize that providing credit is not a pass for the law, but in your experience, are you finding that those little gestures – a basic respect for the creator and their work, do you find that will often diffuse the situation or is it not that simple?
Ruth Carter: [00:38:10]
It depends. So this is similar to the idea that there are so-called gurus out there who tell you, you can use any photo that you find on the internet. As long as you give an attribution and a link back to the original for somebody who only would want an attribution and a link back. Great. But in other circumstances, what you may be doing is committing copyright infringement, admitting it, and because you’re linking back – telling the person about it. So likewise, in your idea of what if this dealership had given credit to the muralist, they’re admitting this is whose work we’re using and depending on the circumstances the muralist is saying, okay, so you know that you should have gotten permission and yet didn’t and. Screw you pay me. It’s up to the copyright holder to decide.
And that folks, is why we talk to lawyers. I thought I had such a simple solution and Ruth, you just completely burst that bubble. It makes total sense when you explain it that way. Let’s go ahead and talk about contracts a little bit. When do we need a contract and what are the most important things to include in a contract?
Ruth Carter: [00:39:22]
The best way I know to explain a contract is it is a relationship management document. It puts everybody on the same page from the beginning of the relationship explaining who’s responsible for what. Who’s getting, what, and in the worst case scenarios, how are we going to resolve these issues?
The best way I know to explain the contracts is from the big bang theory, the relationship agreement between Sheldon and Leonard, where they demonstrate that you can put anything in a contract, as long as it’s legal. So like Sheldon has to ask Leonard how he is every day, even though Sheldon doesn’t care, you can do that.
I have written a contract for one side, had to attest to the other, that they are a sexy bitch. So, you know, as long as you’re not selling heroin or a kidney or your soul, you actually have a lot of leeway in what you put into your contract. Thinking about photographers things you want to be clear up, like, what is the scope of the work?
If it’s a situation where somebody is booking a session and then I’m thinking like senior portraits where like you book your appointment, you have your session and then you get prints. So he’s back when I was a senior in high school, we don’t, then we only could have prints. There was no digital.
And so. You kind of have to look at like, what is the relationship between these parties? And I like to think of it very visually and map out the life span of this relationship and then make the contract fit. So there may be an initial deposit and that deposit only reserves your appointment. Then there’s a second payment for your actual appointment, then there’s a third payment for the actual deliverables.
And so you want to make sure, like, you know, you want to map out the relationship and then make the contract fit. What is the scope in terms of who, what, when and where, who owns the copyright? I would make sure that it is clear who owns it. So that way, when you are dealing with somebody like families who.
Didn’t go to law school, aren’t professional photographers, don’t understand copyright that it’s made clear. This is what you’re getting. This is what you’re allowed to do with it. I would think now with all photographers, that is just a requirement. Everybody has to buy digital images because you’re not allowed to take pictures of my pictures to put on your Facebook because that’s going to kill my quality and you’re not allowed to crop it.
You can’t add filters, you know, things like that. Dispute resolution, how are you going to resolve problems? Is it going to be mediation, arbitration litigation, thumb wrestling, like, you know, your rules, your contract, your rules, you get to decide mediation. Arbitration litigation are the three big ones which law applies.
And I look for a provision that says, All the terms of the contract are in the contract. So in the four corners of the document, nobody can come along and say, oh, but we had this text message or, oh, we talked about this. It’s like, no, no, no, no, no. If it’s not in the contract, it’s not in the agreement.
And it supersedes any previously made statements between the parties.
That brings me to a question and I probably shouldn’t admit this to an attorney…
Ruth Carter: [00:42:45]
I’m not your attorney. Go ahead.
I will admit that I have been very fortunate to avoid any kind of litigation in my career – I have a had a few run-ins with attorneys sending me letters, but in each case, I was able to provide them with enough proof and email communication that they told their clients to drop it. But the only time I have used contracts was with corporate commercial work and even then I generally used boilerplate contracts from groups like PPA, NPPA and ASMP and then I would just add addendums where needed and if I was dealing with a model for a portfolio, or a portrait session I didn’t use contracts, but what I did do is work with a series of very detailed email templates that spelled out as much detail as you just outlined for the contract. I spelled out everything down to what can and can’t be done with pictures. I got into delivery times and schedules, policies for canceling, and payment, but indeed, that’s not a legal document where both parties have signed and agreed that everything contained within this email is covered by a legally binding contract. For those types of interactions. Portraits and such, is that adequate? Are you protected as a photographer with that, or are you still kidding yourself if you think that’s going to protect you?
Ruth Carter: [00:44:05]
So in the event that there isn’t a written contract signed by both parties and things go sideways and somebody gets sued. The first thing that the lawyers are going to have to do is figure out what was the agreement between the parties. And so for less than what you would have had to pay, to hire a lawyer to draft your template, to begin with, they would be piecing it together based on.
Emailed text messages, the actual actions between the parties to determine what was the agreement between them. And then do that. It’s not the worst thing that can happen, especially in your situation where you are very detailed. Particularly if you have an email from the other side saying, yes, that’s fine.
Or yes, I agree. But let’s say you were working with say, you know, I’m an Arizona. I was a photographer and I was working with a model and they moved to Nebraska and then they sued me in Nebraska. If I didn’t have a contract that says we will resolve all disputes in Phoenix, Arizona, I may have to go to Nebraska to deal with the situation.
So it helps eliminate headaches by having everything all in one place in one single document. Because a lot of times when things go sideways and somebody comes to me saying, I am having this dispute with a model or a photography client. My first question is, well what does your contract say? It avoids. A lot of headache, heartache and draining of your bank account. When you can just produce one document that says here it is.
That’s great advice and you touched on my next question when you talked about paying a lawyer to create you a template for your contract. I was going to ask you if we need to have a lawyer do it or in absence of a lawyer, what about the generic contracts that we can get from photography organizations like PPA, NPPA, ASMP? Most of these organizations have had their lawyers draft these templates and then they make them available for download to the members. If I am understanding your advice – you would still recommend taking one of those contracts to an attorney and saying “I want to make sure this is adapted for my business and that it covers everything that I need to cover in my state. Am I correct?
Ruth Carter: [00:46:30]
I think so. I think templates are a great place to start to look for ideas because photographers are not lawyers. And there may be provisions that would be included in a template that you have never thought of. But then when you read it, you’re like, that makes so much sense. But like you said, generic contracts are generic and so you may need to have it customized to your needs.
I would also. Ask your lawyer in advance, which is more cost-effective. If I bring you a template and ask you to re to review it versus having you just draft it from scratch. Because if you are dealing with a lawyer like me, who has written lots of photography contracts over the years, I will basically use my own work as a template.
And it will be faster, therefore cheaper for you than if I was reviewing somebody else’s contract line by line. And if it’s an US eight page contract. It can get expensive, but for another lawyer, it makes sense to bring them a template to review. If they don’t have an arsenal of previously created contracts, or if you say, I want a contract that has all these provisions, and this is how I want to do my business and give those pieces to say, here’s what, here’s the base material wrapped up? What makes sense to you? Do whatever’s most cost-effective for me?
How do we find the right lawyer? Obviously, we can go to Google and type in lawyers and the town where we live, but there are corporate lawyers, criminal lawyers, tax attorneys – what is the right adjective that we should be looking for? Do we need a different attorney for our copyright and intellectual property as opposed to our contracts? How do we find the right attorney?
Ruth Carter: [00:48:12]
So ideally you would work with a lawyer who does both business and copyright law, because those are the two big things you’re going to deal with. So that way they can address both major aspects of your work. And ideally, if you can get somebody who does transactional work and litigation, so they can register your copyrights, they can draft your contracts.
They can write your cease and desist letters. They can take people to court. Goes in that direction. It’s all in one. Those are harder to find compared to someone who just does intellectual property just does business. So you have to think about your lawyer as somebody with whom you’re going to have a close relationship with.
They’re going to need to know the details of your business. There. They’re going to be the person that you go to when. You screwed up and you need them to help unscrew it. Know. So this is somebody you have to be comfortable with. So you want to look for somebody who has the knowledge base, who understands your business, and who’s a good fit for you personality wise.
It’s worth it to do your research, get recommendations from other people in the photography industry and find somebody who is a good fit for you.
That’s great advice. I am sure it can be overwhelming. I know quite a few people who never considered talking to an attorney until they needed an attorney, which is really not the right time to go through that process.
Ruth, I could talk to you for hours, I really appreciate all of the information you have given and especially the fact that you give it in a practical and easy to understand way. You not only have written a few books – and I have the links to them in the show notes, but I noticed on your website that you have a course that’s called Lights, Camera, Lawsuit and it is all about the legal world for photographers but I was dumbfounded by the price. At $49 dollars it is pretty much a no-brainer for any photographer, but in your own words, tell me what I can get out of this course.
Ruth Carter: [00:50:12]
This course came out of doing multiple talks for photography clubs, where I was hearing the same questions over and over and over again. And because I realized photographers will spend a thousand dollars on a lens. They will not buy an hour with a lawyer. Is it just how it is.
(laugh) Ruth you have just described every photographer that I have ever known. (laugh)
Ruth Carter: [00:50:37]
It’s true! And working as a model. Every time I am signing a contract for TFP work, except for the one that I wrote for the client where like I am both his lawyer and I modeled. Every TFP contract. I looked at, my first thought when reading it. Yeah. I can fix this. There are decent contracts out there, but there are a lot of contracts that could be a lot better.
I should say. They’re decent, not good. So I don’t know where they got them from. I’m not dissing any source. So I wanted to create a course that dealt with the issues of, you know, starting a business because a lot of photographers are silver, private earners, and I just go, oh God, don’t, don’t do that.
You’re asking me. Lot of heartache later. So contracts copyrights, one of the rules about being, and I had to, I had to create a whole separate business to be able to create this course so that there was a clear differentiation of, I am a course creator. I am not your lawyer. I’m providing legal information.
You can’t say that to your client. So I had to create a whole company for that and there’s rules. Not being able to create templates when you are a lawyer, but there is nothing that says I can’t take my contract and split it up across 25 slides and say, here are sample terms that you can pick and choose as you want.
I’m not selling contracts, I’m giving suggestions. So if someone happened to take those 25 slides, put them on a word doc, that might be a really good contract. Um, I deal with issues. Contracts copyright. I get into some privacy issues. And the one thing I love about this course is once you purchase it, you have access to it for life.
So, whereas if you meet with a lawyer for an hour, a year later, you may have forgotten what you heard. Whereas with the course, you can always go back and rewatch. And if new things happen in the law, I can add more lessons. Right now it is at 23. If I want to add three more. It’s free for everybody who’s already purchased.
So it’s a way that I can continue to provide quality information for photographers at a price point. That is manageable folks.
Folks, I really do encourage you to check it out. The link is in the show notes and Ruth even has some sample slides from the course on the website so that you can get a sense of what the content is like and how easy it is to understand.
Ruth, I really appreciate your transparency and the information that you have provided today. I know this is going to be helpful for a lot of people and an eye opener for a lot of folks who have been kind of pushing these things aside and not giving the proper attention to contracts and releases and copyrights. So I thank you so much. I wish you the best of luck and, I’m gonna cross my fingers that I can get you to come back on in a couple of months because there are so many things that I would love to hear your perspective on. So thank you again so much.
Ruth Carter: [00:53:33]
My pleasure. Anytime I’m happy to come back.
There you have it folks… if you didn’t learn something from this conversation, you probably already have a law degree. I will try to get Ruth back on the show in a few months. The knowledge base and the way they share it makes it very easy to understand and connect to. Bottom line, don’t ignore these topics. There is an old phrase, “it’s not a problem until it is a problem” That is not the approach to take to the legal aspects of your photography and especially not a photography business. I would encourage you to take the approach that “if something can go wrong, it will go wrong” and make sure you are protecting yourself by using the proper releases and contracts and by filing copyrights at least for your most valuable images.
I would sincerely encourage you to check out Ruth’s Online course – Lights Camera Lawsuit: The Legal Side of Professional Photography – at just $49.00 it is filled with tons of practical advice presented in easy to understand ways. Full disclosure, I am not being paid to promote Ruth’s course and invited Ruth on the show because of their expertise and willingness to share.
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Ok folks, that will do it for this episode of the TOGCHAT Photography podcast. Stay safe, have a great week and until next time — please remember these words…
Thanks for listening to the TOGCHAT Photography Podcast. Now go and pick up that camera and shoot something – because your BEST shot, it’s your NEXT shot! Adios!