Intellectual Property & Working with Others


Intellectual Property 101


Lesson Info

Intellectual Property & Working with Others

I have already said this, I said it multiple times. We as an industry, we need to stand up. I feel like we need to educate our clients, and we also need to defend our work. It's not required in a, I just gave you guys this whole spiel about how you need to have a document between you and like a second shooter. That's because you have an employment relationship, or an independent contractor relationship in play. But when you have your photographer and a client, you don't have to claim copyright, whether you're gonna register or not. You don't have to put that in your contract. You get that by operation of law of everything we've discussed. The publication and fixed changeable medium, right. You receive that with that original work. However, I do think it is beneficial to put a note in there. Typically it's best served within like your print release, just reminding them that the copyright ownership is remaining with you. If you are a commercial photographer, that's probably more often wh...

ere you're gonna run into people who want to buy out the copyrights. And there it's more commonly accepted, I think, in the industry between a personal portrait session and a photographer. You're also charging a little bit more for that as well. One thing to keep in mind, when it comes to commercial stuff, because I photograph a lot of commercial. It just is a relevant crossover from the work that I do. I have no problem selling it. I can have them licensed back to me use in my portfolio. So a lot of people freak out thinking, "Oh my God, if I sell the copyrights, "I can't ever use it in my portfolio." Why not? Sell it to them, and get them to license you back a irrevocable license to use in your portfolio. That way you still get the benefit of being able to display and use the images in marketing, but again, remember you lose the rights of enforcement. At that point, the only little stick that you hold, the little ownership stick that you have, it's not really an ownership, it's just a license is being able to use it. You can't enforce it and beat someone with that stick. You gotta be the owner that has all of the sticks to beat somebody with. Could you reiterate the name of the copyright registration website please?, G-O-V. Great, super simple. And from Sarah Beth, "I got married and changed my name. "I have a photography collection copyrighted "under my previous name. "Do I need to copyright that photography collection again?" No, and I assume it's affixed to your personal person, and not an entity, which is a good. I'm glad this question was asked, because we typically recommend, lawyers at my firm. We recommend that all the intellectual property be assigned to the entity. So it's in the entity's bucket of assets. So when you create the trademark, have it attributed to the entity. Just like the example that I gave where the graphic designer was able to license it out to that large company. It was just a lot cleaner with it being within her entity, so that way all of the licensing and the trademark assignment was done from the entity name. So in this situation, I assume she's done it under her personal name, which is not a bad thing at all, but no, in my long-winded fashion, the answer no. You're still the same person. You have not changed. Cool, and can you talk a little bit about trademarks, and copyrights, and how they relate to the pond? The pond? Across the pond. Across the pond. (laughs) So I kind of answered this a little bit earlier with the international stuff. I highly recommend if you're doing business here and going over, whether you're going to live over there, or to work over there, still obtain your federal registration here. And actually this is a good question. 'Cause we should touch on the fact that there may be companies in other countries that utilize our images, and there are some countries that we have no convention ties to. There's not really much you can do. If their hosts are in our country or in one that's connected, you have a better chance. But some over in Asian countries, there's nothing. There's absolutely nothing you can do, which is really unfortunate when they're being scraped. You could still try to go through the process that I talked about with like the DMCAs or take downs, but they don't technically have to adhere to it. So it's best to register and have it all, and just know what the rights and enforcements that you can do with countries that are connected to us, and honor our registrations, but some other countries, you're just not able to do anything about. Thank you. And a question from T.D. Scott. "If you provide your second shooter with the equipment, "do you own the intellectual property?" So that's a really good question, and I wanted to expand on that a little bit more with this working. So when you are working with somebody, the reason that I go ahead and have all employees and independent contractors sign all of those documents so it's cleaner, their status may change. And it comes around to this question that was just asked, because you may start off with somebody as an independent contractor, and you're completely like hands off. They use their own equipment, they show up only at certain times, but then everything else is like they have full reign to do what they want, and they're falling on the independent contractor side of the spectrum. But what if a couple of weddings later you decide to provide them the 5D Mark III or whatever, or 17 or whatever version they're on now. Like what if you start giving the equipment. You start getting a little closer to that line of employee. You could also go back the other way. Maybe you sign on and you're treating them as an employee, and then you start moving towards independent contractor. That by itself, the use of equipment, is not completely dispositive. The way that you pay someone is not completely dispositive. It's this control test. You have to look at the sliding scale. How hands off are you, and what is the intention and relationship all the way through how much control you have over the person? Something like that. You give them the gear, they're handing over all the cards. You're paying them on a consistent basis. You're telling them where to stand, what to wear, and all of that. More than likely, they're going to be found to be an employee. Which is good news, because if you didn't have them sign anything, by default, you could end up being the employer. Bad news, if you're not paying your employer tax, you can get pinged for that too. So just keep that in mind that with these statuses, not only for intellectual property ownership, you also have to consider that if you're treating someone like an employee, and you're not paying your taxes on it. And they're really cracking down on this, because a lot of people are doing that to try to skate the system. Especially with using virtual assistants and this onslaught of independent contractors. Which actually I was just reading, I think Business Insider, and it said in a couple of years, two or three years, the majority of the virtual workforce is gonna be like 75% independent contractors. Which I wasn't surprised about, but then I was like, "Man, that's a lot of intellectual property "being thrown around, and who is it connected to?" Do people truly know? Great, a couple more and I think we'll move on. From Broderick Pride, "Is it possible to still register "an image if it was published "after the 90 days that you mentioned?" You can. I mean, yes, you can, but in order for infringement enforcement, it's better to do it within the 90 days. But yeah, so if you guys are playing catch up now, go sit down after this and do it. You definitely can do that. Cool, and question from Emmy Condo. "If I'm an employee photographer, "does it mean that the company can erase my name "from the photo credits? "And meaning that they could only include their names "on the photo credits?" How does that sort of, what's the structure there? My first instinct is yes, but I would also look to see what their employment contract said, because maybe it was something they agreed to do. And that would be something you would need to negotiate. I can't speak. Negotiate when you're coming onboard with them, or if you find out, "Hey, I would like to be credited for this." And the same thing goes. If you guys have second shooters. You know, everyone's all over the place with how, who gets credit, who doesn't get credit, what can be used in portfolio. Maybe your second shooter wants to use in a portfolio, but you don't want them to. This is what circles around to contracts as well, to define, can they use it, can they not use it. My recommendation, and I apologize if you're not a wedding photographer. I hope that you can see to translate this to your own specific situation. But with a wedding photographer and second shooters, the easiest one for us to work with, that contract needs to outline everything like what you just said. Who owns it? Probably be the primary photographer. Are they able to use that for marketing in their own business? That would be a license. That's intellectual property. You'd be giving them a license. And I say giving. With a client, you're selling, but here you're contracting a license for them to be able to use. Maybe you never want them to use those images in the course of their marketing. Maybe you put a timeline on it to say nine months from the date of the wedding, so that you make sure you get all that steam out of that one wedding or that client. Another thing should be the solicitation of clients. We talked about this a little bit with contracts. Can your second shooter sell those images to the couple as well? Just because all of this is common sense, and you would think, you wouldn't want to do that to somebody else, and that's what the industry norm is, there's people everyday who are finding ways around it. But if you put it all out there in a contract, then to whit, you're able to define what the rights and responsibilities are. And then you'd also have a claim against them should they skirt around it, and do something out of what is the norm. Great, we're ready to roll. Fabulous. So we've kinda done a good amount of the intellectual property when working with others. The big thing is, you don't know what you don't know. When you are going to work with others, don't just present them with these documents. We talked about on the contract section, for much of what I just talked about here, the major ones to have are the confidentialities, so they're not sharing your client information or proprietary information. Non-solicitation, so that they're not soliciting your clients or potential clients. And then the intellectual property and acknowledgement form. I highly recommend that you don't just decide to say, "Okay, second shooter, you're coming on board. "Now sign all of these documents." Sit down and explain this to them, 'cause how many of you had no idea about statuses and how all IP worked, and all of that. Explain to them so they better understand. And you didn't have to raise your hand. (laughs) But how many of them did not understand, because they didn't listen to the class? And it's okay, they just don't know what they don't know. I talked a bit about the Etsy logo earlier. This is a very common problem. Nothing wrong with Etsy. I love Etsy. But many try to get on to get logos on there. Even if it's marketed to be original, it's probably not gonna be original. There was a situation, I was not the attorney for this, but I watched it happen to a photographer. And they purchased a logo that was supposed to be original off of Etsy. They did not do any of this intellectual property rights sign over. They had no enforcement of it. They ended up finding that a bunch of other people were using it, and then what. She had to do all her rebranding and everything over again. The business name was still the same. But it was just unfortunate, because of the logo. There was also talk that supposedly the logo designer was being approached by a couple of the people she had sold to, and was erroneously signing over the rights to multiple people. So she was signing over rights that she didn't really have, so it was actually the first person, legally speaking, had the actual rights to it. But anyone coming after that, I don't even know what happened with all of that. I was just thinking, "Oh my God, this is like a perfect example "as to why if you are hiring someone to create something "for you, you need to really strongly discuss "with them upfront the intellectual property ownership, "and making sure that it's not also not being created "for somebody else." But maybe you can turn it into a financial thing. Maybe you can own it and license it to other people, much like that graphic designer's business name that I talked about earlier. So back to the steps. What is their status? I want to expand a little bit on this for, less intellectual property, but for more for business. I mentioned it earlier that not only can their status change by mere operation, the more that you control them, the more likely they're gonna be an employee. Typically you pay an employee through the W-2 payment system. You pay employer taxes. If their status changes from an independent contractor to employee just by mere operation of behavior. You just start giving them gear. You start training them more, you can get in trouble for not paying business taxes on it, and that will kill some small businesses. That will kill photography businesses that are just starting out. So please make sure you're on the up and up with that. I love CPAs, I think they have a good place. I think oftentimes that they don't truly understand how to explain this W-2, 1099. They just think, "What do you want to call them?" And it's not enough just to call someone an independent contractor. It is best to put it in that agreement that I have with the second shooter. What status I intend them to be, that's not a be all and end all. 1099s work, you guys probably know a lot of this. This is the most common that people are using now. 1099 is the form that you give if you pay them over $ in a calendar year. Little fun side note, you don't necessarily have to pay a CPA to remit a 1099 for someone over $ if you've been using them through a payment processor that already generates a 1099 for you. 'Cause I was paying my CPA for years, and then people were like, "Why am I gettin' two 1099s?" Because they were getting one from PayPal, and then I was also paying the CPA to generate one as well. So just that's a nice little fun tidbit on that. We talked about how to avoid this. Communicate the requirements up front. Whenever I'm going to, I put in the job description right off the bat what I'm going to require, and the thing is, think about this. Maybe in your mind, you're going, "I don't have any intention of ever trademarking." I don't care. But you never want to be in that position where they can stop you from utilizing something that's for your business. I am totally fine with getting a license. I just wanna make sure that it is irrevocable license. I don't want them to have the option later on to revoke anything that they've created for me. Super important. You probably have seen that language. It's like irrevocable, perpetual, non-worldwide, from the three tenths from the moon. That type of language. Like you've seen that before. Alright, so we've talked about how to avoid it, but what if you didn't get it signed over. Go back to them and ask. Maybe you're ready to do the trademark, and you didn't have the rights. Just go back and ask. Have them sign it over now. All is not lost, because it wasn't done. If they say no, then you're kind of at a fork in the road, and you gotta decide, do I need to rebrand or not?

Class Description

Understanding how to create and defend your intellectual property is one of the trickiest issues plaguing photographers today. Join Rachel Brenke, TheLawTog®, as she gives you a 101 crash-course to make sure all areas of your business are covered, not just your photographs!

The Brenke Group, LLC, doing business as TheLawTog® (“TheLawTog”) provides an online legal portal to help customers identify business and legal problems commonly encountered by individuals in the photography industry. TheLawTog is not a law firm and does not and will not perform services performed by an attorney. TheLawTog is NOT a substitute for the advice of an attorney. Instead, TheLawTog provides templates and education to individuals who voluntarily chose to prepare their own legal and/or business documents, submit templates to licensed attorneys for modification, and/or for education purposes prior to contacting a licensed attorney.