Legal Essentials for your Photography Business
Uh, we're going to talk now about legal, but let's talk about what we covered earlier. We did talk about how to evaluate yourself and your business. Remember that part? Figure out where you're at. We talked about building the foundation for your business, setting up, figuring out where you're going to go. And then, we talked about some steps to grow rapidly with your business. Now, we're going to continue that with the legal stuff. That's the very next thing. We're going to talk about the legal documents, contracts, legal things to know. We're going to talk about time management. We're going to talk about social media distraction disorder, and we're going to talk about time tracking, physical chart to track exactly where your time goes each day, and then some other work flow tips, some small things that can save you time to make sure that you're using your creative genius towards being creative and not chasing crazy little things down in your office. All right? So, on to what you guys,...
I'm sure is your most favoritest, excitingest topic of your business, the legal stuff. Because, you're not above the law. Steven Seagal may be, but you are not above the law. It's really important. I think this is very, very common with small businesses, that you don't think about that so much when you're first starting. You're like "Yeah, I'll just. I don't really" "Need a contract. We're just, you know." "They already what I'm going to do." "They're going to pay me hopefully." You kind of go that way. I did that when I started off, and finally somebody was like "Dude, you gotta have a contract. What are you thinking?" I'm like "Oh." Then, I started hearing the stories about people that are getting sued, or that have problems, or going out of business. Yeah, I don't want to be in that boat. So we've got to get legal from the start, all right? So, the first thing, even before your contracts is just really think about your professional conduct. And this, for some people, is kind of a no brainer. Yeah, of course I'm going to operate professionally, but you'd be surprised, especially some of these I don't want to say "some of these", because I was one of them. I am one of them. Wedding photographers that will sometimes push their brides to do crazy things. Trash the dress sessions, you've seen some bad things happen, you know? They get on the internet. People that have messed up on these things, so you've got to be really thoughtful in how far you push your sessions. We all want to have cool, exotic, different looking sessions, and I love that more than anybody, but I'm really, really conscious. Is this safe? Is it smart? Is it going to come back to bite me later on? So, number one: Don't do stupid stuff. All right? Think about the safety of your client, safety of yourself, which is equally important, before you head out to do something. Okay? If you're going to have your bride wading in a river, make sure it is absolutely, absolutely safe, and that you've got safety things in place. I'm not even suggesting that, so don't take that as a suggestion out there in the world, I'm just theoretically, hypothetically saying that. Hypothetically, I've had pregnant women in the river to take pregnancy portraits, but I also had a lot of people around for safety. I went back and forth with the bride many times. She suggested it. I went back and forth with her. "Are you comfortable with this?" "Is this okay? Where do you want to go?" "How do you want to" you know. So, it was very well thought out ahead of time before we actually did it, hypothetically. I didn't actually do that. I never would have done that. Okay, think about that. Appropriate behavior. More important for guy photographers unfortunately. We have to be much more careful if you're shooting seniors, kids, even weddings sometimes. My wife fortunately has worked with me my whole life, so she's like the magic female buffer that we kind of need to have, so if you can get a female assistant if you're a guy and you want to do fashion, even fashion stuff with you know, 18+ year old women, you want to have a female, if at all possible, just to kind of keep things on the up and up always. I know you guys are all good guys. Nobody is going to do weird stuff, but it makes the client feel more comfortable when there is a female, especially when you're photographing females. If you're just doing dudes, like senior guys, or head shots for guys, you know, doesn't matter, but keep it on the up and up and like I said, even if it's not anything about you, it's just to make the client feel more comfortable, and that's a huge thing. Having my wife, and if she can't help, all my assistants are women. Not only because I like women, but I think you've got to have a woman on set if you're going to work with a woman. It just makes it way more comfortable, okay? So, just think about that, dudes out there. Next thing, everything in writing. We're going to talk about that in detail, but this is really important. Even if it's not just a contract, it could be just a line of "This is what I'm going to do," "This is when I'm going to do it" "Here's what I'd like from you." The simple act of putting it in writing for some reason makes it clearer, avoids misunderstandings, it avoids trouble, and I have lots of stories about this which I have shared in very private circles about ways that I've messed up by not having these things clear up front, so it's one of the biggest lessons I've learned. All right, then of course, we're going to talk about respecting privacy. What can you post online? Do you guys know? What can you post online as far as the pictures that you take? Anybody have an idea? What do you guys post online? Anything and everything?
Except for boudoir.
Okay, except for boudoir.
Probably a good idea. Unless you have permission, of course.
If your client signs off, "Yes you can use these online" "In a portfolio, whatever." You certainly can, you know? As long as it's not crossing the line kind of stuff. I mean, even that, probably could, but it has to be approved by the client. That's why we have contracts that when you photograph someone in your contract, it will say "I own these images, I can use them on my portfolio" "Online, wherever I want." And unless they tell you "No, I don't want that." Then, that's what gives you the permission to do it. But, you shouldn't just do it because you took the images because you're the copyright holder doesn't mean you can exploit your clients and put them wherever you want and you know, invade their privacy. Legally, I don't know how it will go out, but from a, Um, what's the word I'm looking for? Just a socially respectful point of view as a business, you can't just do whatever you want without respecting your clients privacy. Okay? So be conscious of that. All right, first things first. Model releases. Contracts will save your fanny, so we have a contract for all sessions. There are different ways to do this. You can use, one of my favorite ways is an iPad, iPhone app called EasyRelease, which is great. Some of you may use that. There are a few other ones, but this one, I used kind of all of them and came back to this one being the most universally, works well. Pretty much, everybody has a smart phone. You can always have that with you, okay? You can just have them sign right there on your phone at the time of the shoot. This would be great for just fashion, commercial stuff, if it's not in your portrait contract already, then it's good to have this. If you forget, let's say it's a spontaneous thing, and you go down and "Hell, meet me at the park today." "Let's go." And you're like great, but on there, "Hey, just sign this real quick." "And we'll get started." Boom, okay? Usually, it's a good idea to get it done ahead of time so you don't forget, okay? Invoices, you've got to have your terms in your invoices, I'll show you some examples in our software later on on what that might look like for your terms. There's also, I created a Jotform. I'll talk a little bit about Jotform. It's an online form. You guys heard about Jotform? Some of you up there? It's a great service for creating forms. We use it all the time for all kinds of things, but I created an actual form that is a model release. I have one for adults and one for children that has to have an adult sign it with. You can use it if you want. If you have a Jotform account, this link will take you to the actual template that I created and saved for you guys in Jotform. You can take that template, put your information into it, and use it, and jot yourself. That's really nice, because it's just a form, just like the EasyRelease, and they fill it out. If it has a place for them to take a picture of themselves, so they take a little selfie to put it in there. There's a place where they can sign with their finger on that and they submit. When they submit it, it emails a PDF to them and a PDF copy to you, so you both have a copy of this model release, and it's pretty straight up. It's pretty straightforward. So, feel free to use that. I created it just for you guys, and you guys out there in the world. If you want to use the one that I have, go ahead. Disclaimer: Make sure you read what's on there and then make sure it applies to you, and that you change anything that you need to change, okay? I'm not saying that it's perfect for everybody, but it's a starting point. I don't know why I have to even say that, but yes I do. Okay. Non refundable initial payment is a good way to talk about what we call deposits sometimes. You might have heard this before as photographers. It's not generally a good idea to use the term deposit, which generally refers to something that is refundable even if the client bails on you and doesn't show up, you know? We always take initial payment from our clients when they hold the wedding or a session to secure our time because that's exactly what they're booking, is your time and you can't book somebody else, and if they flake and don't show up, or they cancel, you know, 20 minutes before, then they lose that initial payment because that is lost time, right? It all makes sense. It's lost time, we can't make that up, we're now out money. But, legally, calling it a deposit might translate to something that needs to be returned if the jobs not done regardless of what happened. But, if you say non refundable, you could say non refundable deposit, and that might hold water, but it's better to say initial payment. Non refundable initial payment, okay? Or, sometimes people say even retainer, but I think initial payment is better. Okay, you've got to limit your liability with your insurance. We'll talk about that, which is right the next thing, too. Insurance. All right. And then, finally, just to reinforce, don't do stupid stuff. Just think before you shoot. So, Jotform, great. I use that for this model release thing, the online model release, if you don't want to use EasyRelease and pay for that app, which is not very expensive anyway. You can actually have like wedding and portrait session questionnaires. They fill out a form. The cool thing about forms online is that most people already used to doing that. They're quick and easy to fill out, you get the answers to the questions that you want, rather than just trying to survey them on a phone, or have them even coming in to the office is sometimes hard, or if you're like what we talked about here, some of you are working remotely, meeting at their house. You want to have all these forms signed before you go to shoot, if you don't have an office to have them sit down and sign them in, then do them online, it's great. You always have your smart phone with you. Here's another form you can fill out just to remind everybody out there in the real world and our virtual pretend world. There is a form on creativelive.kevinkubota.com to stay in touch with me. If you guys can fill that out, it's great. If you want information from what's going on in my world and things that are offered to empower photographers, you can fill that out. Also, I'll put your email in my white list so you don't get spammed if you try to email me to ask a question or something like that. But, you can ask questions, whatever you want. Let's talk about the contract do's and don'ts. This is provided from my friends Elle & Tyrus from ellementsonline. They are lawyers, business people turned photographers, so they are in a very unique position to be able to provide some legal consultation and some forms that you can use, samples to start with. They have do's and don'ts. This will be in the downloads as well. A little small to read right here, but there's a lot of good things that we've already talked about. I'm not gonna go over all the details because you can download this, but here's another on the next page here. The do's and don'ts, and also, there's a three page sample portrait session contract. This is wonderful, it covers everything in the agreement. You just need to change a few little things there, make sure that it works for you. You can design it however you want. That's a great starting point for your portrait sessions. It can be easily adapted to weddings, almost anything that you're going to do except for commercial photography, where there's licensing issues. That will be a little different, but this works really great for that. Through their website, if you need some legal consultation for a photographer or just some cool tips and tricks, you can go to their website, ellementsonline, and they've got, they're amazing people. They're really wonderful. They've come to some of my workshops and spoken at some of my workshops and shared their knowledge and they're super nice, super helpful, and very knowledgeable, so good to have some lawyer experience in the photography mix here. All right, so insurance. Everybody here have business insurance? Haha. I see heads going all which ways here. Really important to think about what kind of insurance you need. So, I'm going to cover just the basic forms that most photographers will need. Indemnification trust. This is something, it's like malpractice. You don't deliver. What if you drop your card, your media card down the drain before you can download them? I've dropped a card out of my camera on the beach once shooting a wedding portrait on the beach. I pulled it out of my pocket, I had it in my pocket, dropped it in the sand and never found it, so I went back, time to download, I'm like "Where's my card? Oh shoot." I remember sticking my hand in my pocket, pulling it out, something out of the corner of my eye, I thought it was like a gum wrapper, but it was actually my media card that fell out into the sand. We went back and scoured the beach that whole night. Went back and forth and never found this media card. So, that would be covered. If they were upset about that and were to sue me for something, that would be indemnification. Equipment. Local and international, if you travel. I travel internationally a lot with my gear, so I want to make sure that my insurance covers it internationally. A lot of insurance doesn't, so make sure you find out. If you have business insurance coverage, sometimes it says in the U.S only, and you have to have a special rider to take it outside the U.S. PPAA is a pretty good resource to start. Professional Photographers of America. I'm a member. I've been for many, many, many years, and they offer lots of insurance options and packages that are tailored for photographers. You can also call your local agent if you want and get insurance, but PPAA is a great place to start because you get the indemnification comes with your membership for no extra charge, so you're covered already. That's really nice. So, the equipment insurance, one thing to think about in general, I don't like insurance. Just personally, you know? I don't like paying for something that I hopefully will never use, but it's kind of one of those necessary evils, but equipment, think about if you were to lose all your camera gear, somebody broke into your car, you went to do a shoot, you stop at the coffee shop your cars broken into, all your gear is gone. Could you, do you have enough savings? Do you have enough resources that you could replace the gear and continue in business? It would hurt, yeah, but you could do it. If you say yes, "Yes I could manage." "I could replace my gear" "I could be back in business in a few days." Then maybe, you don't need insurance. Equipment insurance. If you lost that gear and you're SOL, you're not going to be in business for at least a few more months until you can earn some money and how are you going to earn money because you have no camera, right? You've got no other job, you've got no spouse income, whatever, that's a bad thing, you're out of business, then everything else is going to snowball, then get insurance, all right? So, that's the deciding factor. I'm not saying you've got lots of disposable income, like "Ah, no big deal. I'll spend $15,000 tomorrow" "And buy a whole new camera system. Whatever." It just means you might have that in savings. You may hate to spend it, but you could do it. The reason is is that insurance over the long run, you'll probably pay more in insurance than you'll ever use, and that's kind of what they're banking on, that's why they're a big business, because most people pay them more than they ever use. Makes sense, right? That's why they are in business, so if you don't think you need the insurance, if you can get by without it, you'll probably in the long run save money by self insuring with your savings or whatever, okay? Liability insurance, this is a must. I've heard some people saying that photographers don't need liability insurance. That's bologna in my opinion. I've gone to places to shoot where they required proof of liability insurance a million dollars at least to be able to even shoot there. Even some wedding venues I've gone to and they're really strict. Like, "Let's see a copy of your insurance or" "You ain't shooting here." It's not all the time, but commercial shoots, a lot, if you're going to shoot inside of a business or location, they want to see copies of my insurance, and if you're in a studio and your light stand falls, and I've had this happen one time in my studio where the light stand, somebody's kid ran by, tripped on the cord, the light stand, (dramatic falling sound) comes down and just missed landing on the clients head. That could have been a bad thing. I have had a friend who that happened hit the client in the head, gave her a concussion, had to go to the hospital and she tried to sue him. Understandably, you know? He didn't have his stuff secured down. That's what the liability insurance is important for. You're taking clients out to the river and you're playing in the river, and you're playing in puddles with kids and somebody slips, boom, hits their head. Is that their fault or is that your fault? Well, you told them to jump over the puddle, maybe it's your fault, you know? I wouldn't say that. I'd say "Well, my kid jumped over a puddle." "He got hurt, that's the fact of life." But, there are people who would try to make that your fault. You want to be covered. Health insurance, that's kind of a thing for you, I think that's important. Unfortunately, we have to pay for health insurance. PPAA does have this thing I just found out about. I didn't realize we had this option under PPAA, it's called Call Doctor Plus, any of you ever heard of that? It's this new thing where you can actually get online doctor consultations. I think it's like if you're a PPAA member, 29 bucks a month, or I think it's $19.95 a month, or something like that. 20 bucks a month. Basically, you can call, talk to a licensed doctor, get advice over the phone, you can even do a video thing and say "Look, see my rash? See this rash right here?" "What is this?" And they give you advice and give you prescriptions and everything, almost anything you need just online through this caller conference for 20 bucks a month. You can call and use it as much as you want. I thought it was kind of cool. It's kind of a way to the future, I think. Something to look into. And then disability insurance, of course, if you trip and broke your leg, can't go out and shoot anymore. Is that going to be a big deal for you? Do you have other income or are you really going to need some supplemental income at that point? That's where disability would come in, all right? Think about those things. Okay, here is a quick startup check list. So, we talked about some of these things. Local zoning rules for home based business. You guys might know this already, but you may have some restrictions. You could be illegal right now and you don't even know it. There are some restrictions on home based businesses. How many visitors you can have per day, where they can park, all that kinda stuff. You want to just know that. You want to decide if you're going to be a sole proprietor, LLC, or incorporate. Do you guys know the difference? Kinda sorta? All right, so sole proprietor is basically if you're just doing your own business right now, you get a business card, you get out there, you can be a sole proprietor, no big deal. Get a business name. But, an LLC steps it up to where you have some protection from your personal assets being taken if you're sued. That's usually kinda good if you have a lot of personal assets to worry about. Do you have a house? You have savings, you've got college kids college funds, whatever, all that could be sucked out from under you if something really bad happened, and that would be a good reason to kind of protect it with an LLC. If you're just a single person, you've got really nothing, you're renting a house, you've got not much in savings, what are they gonna take? Do you want my Beanie Baby collection? Take it! Fine! Then, maybe it's not worth paying for the insurance because nobody's going to be able to sue you for much anyway. Inc is another step up, a little more complicated. My business is incorporated because I've got a lot of different avenues, little departments in it, but it also gives you that protection to your personal assets. Okay, business banking accounts. Always have sole proprietor, LLC, Inc, of course, you've got to have separate business bank account and keep your expenses, your checks that you write for the business completely separate from what you do for your personal. Don't co-mingle. Just don't do it, all right? You might, when you're first starting out, you might not think about it too much, but as soon as you decide "I'm a business." Whether it's part time or whatever, set that separate business account, and all of your expenses are paid from the business account, and all your personals from the personal account. That's really important, especially down the line if you become an LLC or an Inc, you could totally invalidate, if a lawyer were to look, if something happened, a lawyer will look at your LLC if you're an LLC and they'll look at your bank account, and they'll say "Oh, they've co-mingled their personal," "They're not really a business." "They're not an LLC. We're going to sue them." "We can now attach their personal assets." It gets kind of tricky, but it's weird. They'll find loopholes, being legit, having that business account doesn't cost you much to do it, it's just a little pain in the butt, because you've got to remember to do it from two accounts, but keep everything separate, all right? No co-mingling. Business license, you can file a DBA. Employer identification number, you can get one of these, they're free. This is helpful a lot of times when you're filing for insurance, so things like that, they want an employer identification number. EIN. You can have one of those, it's free, you file at the IRS basically. If you're an Inc, you automatically get one, but even if you're a sole proprietor, you can get one, and it kind of makes applying for other things for your business a little bit easier sometimes, so it's free, it's easy. It's like one simple form. Sales tax ID, if that applies to you. I live in Oregon, where we have no sales tax, yay. So, I don't have to collect sales tax. I hated that in California, dealing with sales tax. Most of you guys here have to do that, I know. It's a pain, but you've got to have a sales tax ID, so that you can file your sales tax quarterly. Business insurance, we talked about that. Get a CPA asap, that's really important, all right? When I was first in my business, I was doing my own taxes for awhile, even after it was growing pretty big, and I finally decided, "Okay, I'm getting a CPA." So I bit the bullet. It was like three days before tax day and I was just in my room swearing "Oh, I hate taxes! I hate Taxes!" "I don't understand this stuff!" My wife would just close the door and disappear for those 24 hours that I was doing taxes. She said "Just call a CPA." Fine, it's going to cost 400 bucks to call a CPA to do my taxes. Gave him the taxes. There you go. I gotta really rush on this, get it done in time. He says "I got your taxes done on April 15th" "And I saved you $1,000 from what you had come up with." I'm like "Oh, great. So I just made 600 bucks" rather than losing 400. Ever since then, my CPA has saved me money that I know I would never have come up with myself, so it makes sense. Contract, we're talking about that. Talk to a lawyer or consult with one. Set up for credit cards, as much as I don't want to push the idea of more consumer credit, bottom line is, people, buy more when you can buy with a credit card. Like it or not, it's a fact. As soon as I started taking credit cards, this was years ago. I really had to think about it. "Do I really want to deal with all this credit card stuff?" I started off and said "Oh yeah, I like this." People are like "Oh, I can put it on my card?" "Okay, I'll take the bigger package, then." They would bump it right up as soon as they know it was a credit card. Stripe is a great option right now. It's kind of a competitor to PayPal and Square, and merchant accounts. Those are different ways you can take credit cards. If you haven't looked into this yet, I would start looking at Stripe first. You can put it on your website, you can take online payments on your website. You have little phone apps you can take payments on the scene, which is great. You can go to a shoot and say "Oh, just swipe the card." We did that just a couple of weeks ago to a portrait client from out of town. We didn't even see them until we got to meet them at the resort to do the shoot. Claire whips out her thing and (swiping noise) swiped the credit card, got the payment. Boom, let's start. It's so easy, right? That's really important to have. Plan for backup photographers. Back up equipment, have a plan, you know? Talk to other photographers. Say "If something happened and I can't make a shoot." "Would you be my backup? You've got my back?" Bam, high five them, you know? It's like having a god parent or something like that stand in your place. You've got to have that lined up, figured out, because you never know when something is going to happen and you don't want to jeopardize your reputation based on something you screwed up on that you could have avoided by just having a back up, okay? So, equipment, rentals. You know that? You get a back up gear, you want to, if you can't have back up gear, at least know where you can rent something on the fly real quick. Rental houses, know the prices, have it all figured out. I used to have a list that I kept, an ongoing list of my gear that I absolutely need for any shoot, so that if something happened, I could just, in an instant, pull that list off, email it to a rental place, they send me this stuff right now, ASAP, and I would get it, you know, the next day. Have that ready to go, rather than having to sit there and figure out "Okay, this is what I need." Assistants and interns. Assistants like I mentioned earlier, I think we talked about that, did we talk about assistants a little bit? The importance of having an assistant? Oh man, it makes your life so much easier to have an assistant on shoot, whether it's to buffer, or just to carry your gear, make your life easier, make your work better. You really work better, I work better when I have an assistant to take things off my mind. Interns are great because if you don't have money to pay an assistant, how about an intern? There are a lot of people in town, in my town especially, I've put out a thing on craigslist, or just word on social media that I need some interns for a special project, whatever, I get tons of people just wanting to help. Not because they even know me, it's just people at a local college or whatever. They're like "Ah, yeah. You're a photographer?" "I want to help." You can always get help if you put it out there and you ask. You want to think about your Google business listing. Your local. People use Google a ton for local businesses now. So, Google, Yelp, make sure you're hooked up, your business is registered, you've got everything you need in there. Think about how your Google listing shows up, too to your potential clients, okay? And then a business line of credit. Something to think about with your bank. It's good to just have that. You don't need to use it, but again to have it as a back up so if you had something you had to purchase. I had this happen years ago with a big commercial job where they needed to purchase a lot of stuff, or I needed to purchase a lot of stuff to be able to make this job happen. It was going to get reimbursed eventually, but I didn't want to wait til they paid me to back it back, so I had to, you know, they signed a contract, but I had to go and purchase all this stuff for props, and extra equipment, and gear. I just didn't have enough to do it. I didn't want to tap out credit cards, so a line of credit seemed to work better in that situation. Then, it was paid off within 30 days anyway, so it was no big deal, but if I hadn't have had that, it would have been a lot harder to do. All right, now we have time for a few questions. Yeah.
Back up photographer you talked about, how difficult or was it difficult to find backup photographers?
Yeah, it really depends on your network. For me, it wasn't too hard because a lot of my friends are my direct competitors, which is kind of cool actually. My best friend is an amazing wedding photographer in Bend and we shoot almost the same thing. We shoot things together a lot, and he's the first person I refer people to, and he would be the first person I would call as a back up. It helps to build that network, and we're actually going to talk about that, building your local network as well, but you have to kind of, you know, the first thing is building relationships like we talked about earlier about maybe starting an organization or something to bring photographers together, to build your network of people that you can trust and rely on. And then from that, it's going to be obvious who's going to be able to be a good back up for you. Worst case, just put a craigslist ad out there and say "Hey, back up photographer needed once in awhile." "Let's meet and discuss." And some other photographer who's looking for extra work might just respond, you know?
So you meet and give an audition?
Yeah, give an audition, do like an interview, whatever. Make a new friend out of it. Start an organization out of it, or something like that. Coffee club, photographers coffee club. Yeah?
About the CPA, do you look for one who specializes in photographers and if so, where do you find them?
I didn't because there aren't any in my town. I just asked around and got referrals for a good just all around CPA, and they, I don't know, I don't know if there's really a need for a CPA that specializes in photography, but it sure wouldn't hurt. If you can find one, great, but mine wasn't, yeah. Any others? Yeah.
For street photographers, what is not appropriate to post online and always need releases?
Yeah, street photographers. So, if you're a street photographer, doing fine art, or just candid stuff on the street, that's a really tricky one because a lot of times you can't get a release technically. You need a model release if you're going to post that. Say if you're posting it on your business site, you know, it's your business or whatever, and you post it, legally, they could say that you're making money off this picture so there needs to be a model released image. That's one reason it's good to have that model release on your phone so if you take a good picture and then you could then track that person down and say "Hey, would you mind? I'll send you a copy of the picture." "I'll give you 49 cents or whatever, but sign us up." Which is really hard to do, honestly, but legally, that's what you're supposed to do, to get a model release for that. If you're posting pictures of people and you can recognize their faces and it's on your site and you're a business and you're making money, if they saw that, they technically could, It's not likely they're going to sue you, but they would make you take it down. They could make you take it down pretty easily. Most people take a chance on that. They're like "Well, worst case is they're gonna" "Send me a cease and desist. Take it down." And I will. Very rarely are they actually going to bring a lawsuit unless there's some serious abuse or slander or something going on there, but that's the legal advice on that. Even though I'm not a lawyer. I should not be giving legal advice to anybody out there, just so you know.