The Essential Legal Guide to Running a Photography Business
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The following excerpt is from The Staff of Entrepreneur Media, Inc. and Jason R. Rich’s book Start Your Own Photography Business. Buy it now from Amazon | Barnes & Noble | Apple Books | IndieBound or click here to buy it directly from us and SAVE 60% on this book when you use code SIDEHUSTLE2021 through 6/20/21.
Let’s cover some of legal issues most critical to your success as a professional photographer.
Photographers own the copyright to their images from the moment of creation, according to the Copyright Act of 1976. Once you click the shutter, you’re the creator and copyright owner without having to register it. This means if unauthorized use of an image occurs (and it frequently does), you could be entitled to compensation.
However, if your images aren’t registered and someone uses them without permission, the only thing you can collect are usage fees. If an image was grossly infringed on and you feel entitled to additional compensation, including attorney’s fees, you won’t be able to collect punitive damages without a copyright registration. So it’s in your best interest to register your images for copyright protection.
Visit the Library of Congress's Copyright Office for instructions and guidelines on how to file for legal copyrights for your images. For general copyright information, visit www.copyright.gov/help/faq/index.html.
Although your work is copyrighted as soon as it’s created, using a copyright notice (i.e., ©2019 Jason R. Rich. All rights reserved.) may be important because it informs the public that the work is protected by copyright, identifies the copyright owner and shows the year of first publication.
For many professional photographers, dealing with copyright infringement continues to be a huge issue, especially when it comes to having copyrighted images show up online. Even if you don’t mind if other website owners use your images, they need to tell readers/viewers who the photographer is (provide a photo credit) and potentially provide a link to your website.
Many photographers put a watermark on the image to establish ownership. This can easily be accomplished using a photo editing application such as Photoshop, or an application, such as Photopolish, that’s designed specifically to add a watermark to digital images.
Most photographers also upload images using a much lower resolution than they were shot in. This ensures that the picture will have a poor, grainy quality if someone tries to use it. It’s always a good idea to add metadata to your digital image files that identifies you as the photographer and image copyright owner.
When do you need permission?
Technically, you can shoot anybody or anything you want on public property as long as it’s used for an editorial purpose and you’re informing people about something that’s a matter of public interest. Of course, there are exceptions to this rule, such as private events.
There could also be potential problems when shooting other people or on private property. Some public areas, such as parks or beaches, restrict professional photographers from shooting unless they acquire a permit. Do your research before just showing up for a location shoot. And be sure to obtain the proper releases from anyone you’re photographing so you’re covered legally.
Get it in writing
It is good business practice to get any agreements or permissions in writing. It doesn’t have to be complicated, and terms and conditions may vary from one project to the next, but the following topics should always be considered:
- Assignment. Provide a detailed description of what the project consists of. Are these editorial images to be used in publications, for a commercial assignment to promote a client’s products or services, or for an event, such as a wedding?
- Duration. The contract should state the exact date(s) this assignment should take place.
- Location. Has the location been predetermined, or will you need to scout for appropriate sites? If the latter, you’ll need to bill the client for the additional time involved.
- Additional equipment, props, or models. Many shoots require the use of professional models or special props and equipment. If you’re responsible for obtaining these, the client should be billed separately.
- Copyright/Ownership. Unless this is a work-for-hire assignment, you generally retain the rights to your images while granting limited usage to the client.
- Fees. Be sure to stipulate how much the payment is and when it’s expected (e.g., upon receipt of invoice or 30 days after receipt) and if there will be a late-fee penalty.
- Deposits. Depending on the scope of the project, advance deposits in the amount of 25 to 50 percent may be required. Specify in the contract what portions are non-refundable and when the final balance is due.
- Travel and expenses. The client is responsible for any expenses incurred by you during the commission of an assignment, including hotel, rental car, airfare, mileage, equipment, etc. If you anticipate significant expenses, you can require the client to pay them in advance or obtain a deposit for the estimated expenses. You may also want to negotiate a per diem, which would cover incidental expenses such as meals.
- Creative judgment. Typically, an authorized representative of the client will be present at a shoot to answer questions and instruct you regarding the desired images. In the event that doesn’t happen, add a clause to the contract stipulating that the client must accept your judgment in the creation of the images.
- Completion date. State when the client can expect to have the desired images in hand.
- Rescheduling/changes to an assignment. Specify what additional fees will be incurred if an assignment needs to be rescheduled or changed. Include any expenses related to the change.
- Cancellations. Clearly spell out what the client is responsible for in the event of a cancellation. Will all or a portion of the deposit be withheld? How many days can a client give notice of cancellation before additional fees are imposed? Usually the closer to the scheduled date, the higher the penalty. Don’t forget to include charges for any expenses that have been incurred.
- Liability. There should be a clause in the contract that holds the photographer harmless against any claims, liability, or damages that could arise from the client’s misuse of the images.
- Previews. If the client is given proofs or previews to review, make sure they understand these images are your property unless stated otherwise.
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