“How to Succeed in Business Without Really Drinking” Tips about copyrights and model releases.

“fuzzy martini” View of a neon sign at sunset in San Francisco using manual focus for blur. © 20 15 Michael Kerner  |  All rights reserved.

5 tips on copyright agreements and model releases for photographers.

When I thought of the title for this blog, I originally thought it was going to be about how to get clients now that I don’t drink anymore, therefore how was I going to succeed? Since then, I’ve been working on my copyright agreements and model releases and realized that succeeding for me isn’t about the not-drinking part – it’s about the business part. Over the past several months, I’ve been taking business classes and going to workshops about agreements and intellectual property issues. What I’ve learned may be obvious for some, but for someone in the process of going pro, let me explain.

A friend recently asked me what the ‘bare minimum’ is for dealing with copyrights and model releases, and while I am NOT a lawyer, I can share from my perspective what I’ve learned so far and can pay forward. Here’s how I answered the question summed up in 5 tips:.

1.  There aren’t any copyright police. This means that even tho you own the copyrights to your work you’re responsible for protecting your copyrights. A really good way to protect your rights is to have a good offense and water mark your images and have an agreement of what rights are being granted. If you post something online and it doesn’t bare the “© 2015 Your Name” or the water mark of your logo, it can be considered as part of the “public domain” – and then you have little or no recourse if someone uses one of your images for profit and you want to take action. I go the extra step of embedding my copyright information into the file info of my files. For help with water marking – contact me for a lesson, or just search online and there are some really good step-by-step blogs already out there.

**Tip: to type the © symbol: press and hold the “alt” key and type “0-1-6-9”

2.  Protect what’s important to you with an agreement in writing. For me, there was a situation where I sent my work to Architectural Digest for consideration for publication on behalf of a client – I didn’t have an agreement in place and the copyright ownership was not documented. I really don’t want to be in this situation again, so I took action to protect myself in the future. After a lot of research, my conclusion is, and again, I’m not an attorney – unless the client gets a ‘work for hire’ agreement (which there wasn’t) or I am an employee (which I wasn’t), – I own my copyrights. The question then for me was how to put an agreement in place and what that looked like?

“I was looking for a cookie cutter solution – what I found was a lot of no-cost resources to help me make my own recipe for the wording and clauses that were important to me along with some of the basics suggested by the experts.”

With some trial and error, I’ve got a boiler plate agreement I use that covers the terms of the project, how I’m being compensated (whether it’s for money, trade, recognition or marketing exposure, or other); what copyrights are being granted for what, where and for how long, and where and how I’m to be credited for my work. It’s one piece of paper on two sides. It’s also suggested that I have an email footer that explains my position on what I are sending and who owns the materials, since a lot of work is delivered or shared electronically, which I’ve added to my email signatures.

“By reserving my rights, I can do things later with my photos. Like if I want to sell prints, publish a book, make greeting cards or whatever else may come along down the road.”

3.  Get a model release. This may seem like a formality, but doing it has changed how I do business. For me this is a chance to a) have a conversation with my client or model and get to know them better; b) answer any questions they may have about copyrights, portfolio and marketing usage and watermarks; and c) makes clear in writing what the terms of our agreement are and what rights are being granted. Probably the most important thing for me is, it gives me the freedom (rights) to promote my work. I’m only as good as my portfolio, and I need to keep updating it. (If you’ve ever wondered how photographers post “sneak peeks” of shoots right away on their blogs or facebook pages – this is how they have that permission – and yes, it’s okay to ask for model releases for wedding clients.) [11232015_blogger's note: this usually only applies when I'm working - not when I'm at parties or a public event, but if you have questions, you should consult an attorney.]

4.  Don’t be a dirt bag. This may sound simple, but after reading yet another book about case law, it dawned on me: don’t be a dirt bag. If you’re doing something shady or making a profit with someone else’s images or likeness, then there’s probably a name for it and it’s probably against a law. In other words, just because you *can* make money off of something, doesn’t mean you necessarily *should* make money off of something. Situations vary, so research is helpful here, or consulting an attorney.

5.  DIY is OK. I was a bit daunted and intimidated by going into this area of my work. When I started I thought I had to have an attorney (which I couldn’t afford) draw up contracts and releases. Turns out someone has already done that and published them in a book you can buy on the interwebs, which, ironically, I was told about by an attorney – go figure…. The one suggestion I can pass along is to read everything first and do what works for you. I was using a Model Release that was way more than I needed, but then found language in a different resource that I could include as a clause in my standard agreement that covered what I what I wanted covered. (This also goes for eventually registering your images with the Library of Congress and registering your copyright in the event of a dispute – which is another step in the process.)

And with copyright issues, there’s the part of the law about “fair use” For the most part, if I share something on social media, I consider it to be open for “fair use” (technically it’s a legal term, one I won’t define ’cause I’m not a lawyer), but posting on social media is an effective marketing tool for me. Anything I post almost always has my copyright notice or logo on it -or if it’s a proof -or in my portfolio. When possible, I request for my clients to give me a photo credit when they post my work online, and especially if the work is going to appear in print.

To summarize, it turns out that I can get clients just fine without drinking, so what “How to Succeed at Business Without Really Drinking” boils down to for me is:

I have value as a photographer.

My work has value.

By putting that value in writing, there is evidence of my value.

You have value.

Your work as a photographer has value.

Until next time, just keep shooting.

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Sources and Resources:

Business and Legal forms for Photographers 4th Edition by Tad Crawford

Business and Legal Forms for Graphic Designers 4th by Tad Crawford and Eva Doman Bruck

The Law (in Plain English) ® for Photographers 3rd Edition by DuBoff & King – (bloggers note: this one has a bit of snark in it about us photographers…but it is a good reference on case law around 2009.)

The Professional Photographer’s Legal Handbook by Nancy E. Wolff

Copyright for Photographers: Why Copyright Matters & How to Protect Your Images; A copyright resources courtesy of Professional Photographers of America

U.S. Small Business Administration

SCORE (Service Corps of Retired Executives)

Your local public library

© 2015 Michael Kerner  |  All rights reserved.

www.kernercreative.com

To Cloud or Not to Cloud?

10 things to consider when backing up your photographs and data these days:

note: As I was writing the draft of this blog, the hard drive being backed up failed and hasn’t restarted again. #justintime

1.   It’s easier than you think. Use a system that makes sense to you. I don’t rely on back up software, there’s another layer of tech to go wrong when I’m in a panic. I just find something other than my main hard drive (it used to be CD ROMs and DVDs, and is now a 500Gb hard drive) that I can copy my files over to. That way I know my way around how they’re stored and can recognize my own systems – usually. I’ve worked in several office and corporate environments and rarely have had an “automatic back up” help me in a time of distress. Usually if my system went down, there went the client to the system and I was SOL. Literally. My research and experience on the subject have lead me to simply making a copy of my files somewhere other than my hard drive.

2.  It takes less time than you think. I had 5 years worth of work on a hard drive on a desk top that hadn’t been backed up complete. Sure, I had made safe copies of paid gigs, just for security, but not a complete copy of all the files. One day I went to turn the computer on and it wouldn’t boot up. PANIC. OMG. Realizing that the humidity may be playing a role, I waited a couple of days for things to dry out and then kept warming up the drive by leaving the system on. Eventually, it booted up and haven’t turned it off since. I bought an affordable 500Gb hard drive at Radio Shack and over the course of a day and a half transferring each year at a time and my other business files, the copy is nearly complete. When I’m really paying attention to what I’m doing, I’m backing up jobs as I do them.

3.  Peace of mind. In 2009 I had a virus infect my system and it took out my desktop. To this day I’m unable to access those files and that work history and it is a constant reminder to me that I don’t want that to happen again. I can get very frustrated with myself, and can do my best today to learn from my experiences. I figure NASA creates redundant systems to put human life into space and that’s important to everyone, so I can borrow some best practices from them and put them to good use.

4.  Every so often a request comes in for a photo of something that someone remembers that I took. It’s an honor and nothing is more frustrating that having to turn down the request because I haven’t done the responsible thing and created a back up. One memorable gaff of mine is having a bride ask for a duplicate of their wedding reception images, the edited version of over 1000 images. I mistakenly sent her a copy of the unedited disk and it didn’t go unnoticed, besides embarrassing, it was unprofessional of me.

5.  Related to #4. Having my portfolio of work to go thru every once in while can be very helpful. Especially when someone in the community passes away. Those photos become ever so more important and meaningful.

By having the same material in more than one place, it’s less likely to be subject to permanent loss due to hurricanes, floods and fires etc, or relationship break ups or personal tragedies. When more than one person has a resource, then important family heirlooms can be copied and replaced.

6.  In conjunction to #3, it’s nice to know that I can get to my work any time I need to without having to worry about having an internet connection or whether my subscription based cloud is accessible. Whereas I believe most cloud services are based on the assumption of constant connection, I’m old school and my assumption is that I’m connected when I choose to be connected and for how long.

7.  Knowing my past. I went thru a period of insecurity and doubt about what was appropriate for me to use in my portfolio. Eventually, with outside help, I came to the realization that the work could stand on its own merits, detached from where I was on my personal journey at the time. I came to appreciate and understand my past from a new perspective and value it all the more.

8.  Having eggs in different baskets. This is especially true with family history documents and photos. By having the same material in more than one place, it’s less likely to be subject to permanent loss due to hurricanes, floods and fires etc, or relationship break ups or personal tragedies. When more than one person has a resource, then important family heirlooms can be copied and replaced.

9.  Evolving technology. My case in point here is that I have a copy of the original install files for Adobe Illustrator from the late 1980s. Cool huh? But it’s on a 3 ¼ floppy disk…kind of like having a vinyl collection these days. Where am I going to get a drive to read that? I’m usually aware of having a CD or DVD rom drive and I still have my Zip drive to read those archives. Without a crystal ball, I’m always looking for a safe and common denominator.

10. Discipline. I kept putting off backing up my data for all of the usual reasons…I was too busy, I was on a deadline, I had other things to do, what if a big project came in and my system was tied up with this back up business, it would take too long, I didn’t think I could afford it, I would do it wrong….and on and on. Well, it’s the week between Christmas and New Years and I’m out of excuses.

© 2014 michael kerner | All rights reserved. No portion of this may be copied or reproduced without permission from the author.