Copyright, Trademark, and Intellectual Property for Photographers

Lesson 8 of 15

Boilerplate Clauses

 

Copyright, Trademark, and Intellectual Property for Photographers

Lesson 8 of 15

Boilerplate Clauses

 

Lesson Info

Boilerplate Clauses

So let's go through boilerplate yeah so boilerplate I mean it's a really weird name but boilerplate is all the confusing stuff that's at the end of a contract right? And you'll see it time and time again in a lot of different contract so might be in a client service agreement you might see it in terms and conditions on a web site you might see it in an independent contractor claw contract so this stuff stays the same no matter what kind of contract that you're looking at relatively the same so these things are really important a lot of especially great of entrepreneurs tend to cut all this stuff out I've actually seen you know, people, photographers, filmmakers, all kinds of creative entrepreneurs and non creatives too actually delete all this stuff out of their contract that's crazy don't do that ok, this stuff protects you it's really, really important I'll give you example of how it does that. So one thing that's in here is a limitation of liabilities clause right? So let's say some...

one comes to your set you take a bunch of photos and you tell them here polls like this on the stairs and they do some special fancy post you know with like that's really elaborate or whatever and it's kind of awkward or whatever but it looks awesome right? So you have them do that and then they bust their ass and fall you know and break their ankle you're liable for that so that's why it's really important to have insurance but it's also important have a limitation of liability is closed so that way you're limiting your liability to a certain amount okay, so that's what that clause does so aa lot of times the limitation of liability is klaus will limit your liability to the amount um the value of the contract right. So if the client paid thirty five hundred dollars for the photo shoot then you can limit your liability to thirty five hundred dollars you can also limit your liability two hundred bucks you know it's up to you there are different state laws related to this so the way that this is often drafted is to say that it's valid in any state that allows you know limitations of liability so that's what that clause does it's your friend okay, it protects you if something goes wrong which if you're in business long enough something will definitely go wrong so recovery of litigation expenses so this is if you have to sue a point so let's say you have an agreement with a client you preserve the copyright, you sell them the service you sell them a very limited license to use the photos and then they start using it in all kinds of commercial settings they take your photo, they sell it to a magazine they use it in all kinds of ways that they're not supposed to and you send them a cease and desist letter and tell them hey can do that and they keep doing it anyway so you have to take them to court if you have to take them the court this is going to be your very, very best friend because it allows you to recover litigation expenses and we all know that attorneys are not cheap, okay? And litigation is not something that you can usually do on your own, so you have to hire an attorney and pay five thousand or ten thousand dollars for them. Tio prosecute the case and get this person to pay for misappropriating your work. You want to know that not only will you get damages from that person for stealing your stuff, but you will also get your attorney's fees covered, so that way, you know that attorney can get paid and doesn't come out of your pocket, and I've had clients who made decisions about whether to sue someone or not. Just based on this cloth, I had a client who is a consultant working with a big company worked for them for several months got paid on time every month until all of a sudden they didn't and it became three more months and they were owed eighty thousand dollars in consulting fees that they did not get paid and so they were trying to decide do I take them to court or do I just take the loss, which is a huge loss right? They've already paid their team they've already done the work and so the way that they made the decision is the recovery of litigation expenses clause they didn't have one and so it would cost them like twenty thousand dollars to litigate the case, especially because the client was very aggressive and they knew their small client right? They know their small business and they're taking advantage of them and their ability to a ford legal help, right? So they want to make their life difficult and that result in a lot of fees so they have twenty thousand dollars in legal fees that they have to cover in addition to maybe they a win maybe they won't I mean, they pretty pretty much had a slam dunk case, but that factored into their decision about whether they could sue or not. So make sure you have that clause in there and then you want to have an independent contractor clauses of photographer you're often working as a freelancer, so you want to make it very clear that you are not an employee that you're an independent contractor warranties is what I would like to call the pinky swear clause so that's you just guaranteeing the professionalism on dh you know, providing certain warranties too how the quality of your work that you're providing professional work and not, you know, amateur work on dh then the other thing is the entire agreement modifications and waivers clause so that's basically saying that um that's the entire agreement and it cannot be changed with an email so if you've got an agreement with a client and you figured out the terms and you've signed the agreement in the client says, hey, you know what this deal is it working for meeting in war? I want to change this or that that doesn't mean anything what matters is what's in the four corners of the contract and what's been signed ok, the fact that they want to change something the email is not going to do it even if you talk to them and say, hey, you know what? You can change that no still doesn't work has to be in writing and this helps that so that way if you say something out of turn and then it turns out you know what? I really should have said that you're still ok because the only thing that matters is what's actually britain in your agreement ok, so lastly I wantto show you the governing law venue and mediation clause, so this clause is basically preserving your right tio have the law that's applied to the contract be a specific law that you chose is it right for specific states law that you've chosen so what that means is, you know, as a photographer aa lot of photographers travel around the world they travel all over the country to do their work but you don't want to be defending yourself all over the country write if you know somehow god forbid you lose all the photos from someone's wedding and they want to take you to court for it in california but you live in new york and that's where you you know, run your business and running out to california to defend yourself in a lawsuit appear in court all the time is going to be a real challenge, right? So this clause prevents that from happening by making the applicable law your state so you can make, you know, insert companies state you would insert your state state of new york as the law that's being applied and as the venue so if they want to see you they're going to have to come to new york to do it which is a deterrent right? If your if your clients out of state most likely it's going to be hard for them to come to another state and sue you so they that may deter them from doing it another important thing to include is a mediation clause that's a second half here right? And so what that does is it makes it so that if you have a dispute, you and your client are required to go to mediation first. Now I'll tell you right now, mediation depending on the organization you use, control could cost, you know, five hundred dollars to maybe, like, fifteen hundred dollars. Ok, this organization, conflict prevention, c p r institute for conflict prevention resolution. They charge fifteen hundred dollars. Half is paid by the client. Half is paid by you. And then you go sit with the neutral and work it out. Okay? I've done a lot of mediations. This preserves business, relationships and it's way cheaper to resolve disputes than to go to court. Always, always wait. Shippers. So, that's, why? I always included mediation club. Very important for every small business, especially photographers who often work alone. You've got a small business. This prevents the legal fees from getting out of control. Okay, so, it's, very important. So one other thing I want to cover is model releases. Now, most of you know that you have to have a model released on your bill. Snus. A model releases a legal document in which this subject of the photo releases you from liability for any claims that they might the subject might have against you, you know? Related to the photo. So that means that if you take a photo of someone and they say, hey, you violated my privacy rights by taking this photo and selling it to this magazine, the model release prevents them from making a claim against you, okay? For privacy issues or any issues where they say you're misappropriating there, their photo, their image, their likeness, so model releases very important. I think most photographers, no, you have to have it, but this also, like I said, preserves your intellectual property and here's how if you want to sell your photo that you've taken to a magazine, almost every magazine or major publication is going to rip choir that you also provide them with the model release that was signed by anyone who appears in the photo, they want to see that because they want to avoid legal issues, they don't have problems, right? So they want that model release. So my recommendation to you is that get assigned model release any time you can okay doesn't have to be super hard. You can put it in elektronik forum there's, aps for this, like hello sign where you can have them sign with their finger assigned electronically if you're on the street taking photos, so just make this part of your regular business same thing with client service agreements. You know, get your template there a couple of different ways that you can do that you can either work with an attorney to create one for you, thie other option is you can get a template from a reliable source. I'd recommend getting it from an actual lawyer who sells templates or from, like, a professional organization, so you want to get it from somewhere reputable, not just any old place on google. Um, you know, get it from someplace reputable and then customize it for your business in the ways that we've talked about here, okay? And then also add the model release to it so you don't want it to be the same document that you want the model release to be elektronik lee on how a sign as well. And so whenever you're on boarding a new client soon as they say yes, I want to work with you. You send them your contract electronically through hell. Sign. Have them sign elektronik. Lee, you send them your model release have that signed as well. And boom, you're good to go. Okay, so that's, how you want to do it? Every time you're on boarding a client, you send it electronically. Elektronik, lee elektronik signatures air just as legit as you know, a pen to paper signature and you know, the other benefit is that you're not waiting for the client to scan it, you know, printed out to sign it, and then scan it back and send it to you. If you do that, you're never going to get it back, so send it electronically. You'll get it signed quickly, always on your model release. And that will protect you from ninety percent of the legal issues that you could have in your business. And it also preserves your right to the intellectual property.

Class Description

Whether you photograph weddings, capture senior portraits, or shoot high-fashion images, understanding key concepts like intellectual property, copyright, and trademarks is an essential part of succeeding a working photographer.

Join Rachel Rodgers to explore the core concepts of intellectual property that every photographer should know. You’ll learn when and why you need model releases. You’ll also learn how to create client service agreements that protect your best interests. Rachel will also guide you through common infringement issues many photographers face.

The skills you learn in this course will enable to you to be your own best advocate, and both defend and profit from your images.

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