Running a photography business comes with big legal implications that are important to understand; if you don’t, you could find yourself in hot water. From forms to copyright law, this post outlines everything you need from a legal standpoint to establish your business:
- Becoming “biz legit”
- Having the appropriate legal forms
- Understanding contract privity
- Copyright law
- Photographer shooting rights
1: LEGITIMIZING THE BUSINESS
The process of setting up a legitimate business can differ depending on the state, county and city where the business is being established. However, there are a few basic things to evaluate.
Type of Business Structure
There are a variety of business structures to choose from, such as sole proprietorship, LLC and corporation. Choosing the structure that’s right for you depends on the type of business, initial investment cost, personal choice of liability, and tax liability.
Sales Tax Permit
Photographers, because they sell products and services, are required to collect sales taxes that are remitted to a state government’s taxing agency. Some jurisdictions require that photography session fees be taxed for sales; others do not. Either way, a photographer is required by law to charge sales tax on products/services sold to a client. In other words, the photographer is merely working as the middleman between the client and state government.
Every photographer should have liability insurance and equipment insurance. Liability insurance safeguards the photographer’s business, especially for photographers who work with specialized clients (i.e., newborns or weddings). Equipment insurance protects the artistic tools of the business, such as cameras, lenses, laptops, etc. Investing in these two types of insurance is critical so that unforeseen circumstances don’t derail the growth of your business.
2: LEGAL FORMS
A portrait agreement outlines the responsibilities and expectations of both parties — the photographer and the customer. The portrait agreement acts as the foundation for all photography services provided and steers the entire business transaction. At a minimum, a portrait agreement should include specifics (parties’ names, photographer name, monetary exchange, promised product/services, deposit amount), cancellation/late policy, expectations (turnaround time, guaranteed quality of product, how/when products will be delivered, etc.), and a notification of copyright.
A model release is signed by the subject of the photography or the parent/legal guardian if the subject is a minor. This document provides the photographer with the necessary permission to take and display photographs. A model release is not an essential requirement for fulfilling a photography services contract, but it is required if the photographs are used on public mediums such as social media, websites or portfolios.
This is another optional form needed when digital files are sold to clients. A print release is the legally operative document in which the photographer provides the client permission to reproduce the purchased digital files. The document should outline the restrictions and privileges given to the client. Note: This document does not release copyright. Ownership rights still are intact.
This isn’t required to be a separate form, as it should be integrated in the portrait agreement. But a copyright notice is critically important in the digital age. Copyright is the ownership rights to the photography produced, and copyright is retained by the photographer until the photographer contractually relinquishes ownership. A notice of copyright can be given to clients when products are delivered to remind them of federal copyright laws.
Here are some keys to think about when using legal forms:
- Get it in writing!
- Electronic delivery is a great way to be efficient and paperless. Utilize digital embedding within a website (such as using Machforms or Gravity forms) or email forms as a PDF file to the client.
- Every contract must have the proper specifics, both parties must have the capacity and intention to enter into agreement, and the consideration (i.e., giving of money in exchange for photography services/products).
- Photographers who cannot afford to hire an attorney or purchase drafted forms should sit down and think about the specific things they want in a contract. Simply write them out. While legal forms should be drafted in a certain manner, writing out specifics of the business transaction is better than nothing.
3: CONTRACT PRIVITY
Many business owners, unless they happen to have a law degree or study the law in their free time, are unaware of the “privity” of contract theory. This theory is the relationship between two contracting parties. For example, high school seniors oftentimes are the subject of a photograph, but many are too young to legally commit a portrait contract. The parent or legal guardian must be the signing and obligated party to the contract. The parent or legal guardian is the actual client, while the high school senior is a mere beneficiary of the contract. Therefore, any obligations to be executed — and issues that may arise — must be directed to the parent or legal guardian. Understanding the difference between subject and contracted party will help you avoid potential legal complications.
A model release must be in place for minors, including high school seniors.
Right of privacy is a big legal issue and should be adhered to and understood as much as possible by business owners, especially photographers. A model release is signed by the subject (or in the case of a minor who is a high school senior, the parent or legal guardian). Releases typically provide the photographer with the right to use of the photographs for portfolio, studio samples and other marketing uses. Depending upon jurisdiction, the age of “majority” varies, so it’s imperative that each business owner research this age. If the high school senior has not reached the age of majority, the parent or legal guardian must sign the model release. Unless it is otherwise written in the contract in similar language, you are unable to use the photographs for marketing or portfolio use until you obtain the model release.
Here are some keys to remember:
- Even when the high school senior initiates customer-photographer transaction, the parent or legal guardian should be the signing party.
- Always double check the photography model’s age prior to entering the contract.
- Don’t push out high school seniors from the process; simply remind them that this aspect is required between photographer and parent/legal guardian.
4: WHEN IS A MODEL RELEASE NEEDED?
A model release is a legal document that provides the photographer permission to publish the photograph as defined by the elements listed in the release. In the cases of minors, the model release is signed by the parent or legal guardian. For adults, the release is signed by the subject. A purpose of a model release is to provide the photographer with permission to use the photographs for portfolio, studio samples, marketing, and Internet uses.
- Model releases can be inserted as provisions into your contract.
- These always should be in writing.
- You should always have a model release — even when working with friends and family.
- Shooting in public areas does not generally require a model release for all people in the public area. Always double check the local laws, which vary state to state.
- If you have a client who refuses to sign a model release, consider whether or not it’s worth turning down the session if you can’t use the photographs publicly.
5: COPYRIGHT 101
A copyright is a legal device that gives the creator of a literary, artistic, musical, or other creative work the sole right to publish and sell that work. Copyright owners have the right to control the reproduction of their work, including the right to receive payment for that reproduction. An author may grant or sell those rights to others, such as publishers or recording companies. Violation of a copyright is called infringement.
Copyright is a property right. Under the Federal Copyright Act of 1976, photographs are protected by copyright from the moment of the work’s creation. According to the U.S. Copyright Office, the owner of the “work” is generally the photographer or, in certain situations, the employer of the photographer. Even if a person hires a photographer to take pictures of a wedding, for example, the photographer owns the copyright to the photographs unless the copyright is transferred — in writing and signed by the copyright owner — to another person.
The subject of the photograph generally has nothing to do with the ownership of the copyright to the photograph.
If the photographer is no longer living, the rights to the photograph are determined by the photographer’s will or passed as personal property by the applicable laws of intestate succession.
Protecting copyright goes beyond mere ownership. Actions can be taken to protect digital art, such as uploading watermarked, low-resolution files to a website; disabling right-click saving; and offering watermarked, web-sized files to clients for their personal use.
Infringement can occur if claiming another person’s work as your own, scanning a photograph, any manipulation of a photograph, downloading sneak peeks from the web, and taking a screenshot of the gallery.
To ward off copyright infringement, it’s best to inform and educate clients from the beginning.
Provide them a contract containing the copyright information, a follow-up copyright notice and reiterate the copyright information in a print release. If infringement occurs, it’s best to approach the client in a professional manner: Cite the contract and request that all copyright-infringing actions cease. If the client fails to cease the infringing actions, there are a few options to move forward: (1) a Cease and Desist Order –- given by a judge to order a person to stop a certain act; or a (2) Cease and Desist Letter –- given by the copyright holder to the infringer.
Here are a few thoughts to remember about copyright:
- Copyright is formed at creation of the photograph.
- Copyrights are protected by federal U.S. law.
- Educate and remind clients of copyright law and all the responsibilities they receive upon purchasing prints and/or digital files.
- Keep in mind that many clients are unaware of copyright law; a gentle reminder may serve better than a formal cease-and-desist document.
6: PHOTOGRAPHER SHOOTING RIGHTS
When a photographer hits the pavement for a session, there is a conglomerate of shooting rights outside of the client and photographer relationship to keep in mind. For the most part, a photographer can shoot anything in plain view within a public place. This includes individuals who are in a public place while shooting. Photographers are not expected to get model releases for individuals in public areas. What an individual knowingly exposes to the public is generally allowed to be photographed free of a model release. Use common sense in determining what is a public place. Obviously, public restrooms, changing rooms or peeking into a private home’s window are not covered under this rule.
Things get a little trickier when the property is either privately owned or is generally open to public but the owners places restrictions on photography. If a public property is generally open to the public (e.g., a restaurant) a photographer can take photographs unless informed by the owner that photography is not permitted. If a property owner requests that photography cease, you must stop. If the owner asks you to stop and you refuse, you can be held as a trespasser in the eyes of the law once the invitation for you to be there has been revoked by the owner. It’s better to ask permission to photograph in order to avoid legal battles or face embarrassment in front of a client. When in doubt, ask for permission.
Keys to shooting rights:
- Get permission in writing.
- Always abide by permit application guidelines and fees.
- Consider offering compensation to the landowner if he or she provides permission.
- Always have an agreement between you and the property owner that outlines the responsibilities.
Want some help to make sure you’re on the right path?
Check out legal forms that are photography specific. These are drafted by a photographer/lawyer for photographers. All come in Microsoft Word files, so they can easily be lifted for insertion into websites and contract applications — or anywhere else you need them to be! All can be customized to suit your branding and contract needs.
Legal Forms include:
- Photography specific contracts (affiliate) including portrait, wedding, boudoir, senior, newborn, birth, etc.
- Model Releases
- Print Releases
- Cancellation of Contracts
- Product Delivery Agreements
- Amendment of Contracts
- Payment Plan Agreements
- Credit Card Authorization Forms
These legal forms can be used as is, can be amended to suit your personal preference, or can be used with your own attorney as a baseline (read: reduces attorney costs).
Free Legal Ebook
Want step-by-step legal guidance for your photography business including legal information every photographer should know? Snag a free copy of the Legal Lens (affiliate), a free ebook from Rachel Brenke.
Get 15 pages of protection and knowledge, including:
- Business Forms Every Photog Needs
- Contracts 101
- Are Digital Contracts Legal?
- Copyright Laws
- Copyright vs Print Release