eSignature Legitimacy for Photo Licensing Agreement in United States

How to eSign a document: e-signature legitimacy for Photo Licensing Agreement in United States

today we're joined at the studio by Jason Hines he's a lawyer and will be talking to us about contracts for creatives specifically for photographers this is part 2 of his talk part 1 was about copyright check it out if you haven't and well Jason is based in Canada he does talk about a lot of the things that are different in the US there's a lot of information in here and we hope it brings a lot of value to you thank you Jason for teaching this for free as well as letting us put it up here on YouTube let's talk about contracts which kind of goes back to what we're talking about a few minutes ago contracts don't have to be scary they don't have to be intimidating I don't want to be confusing and they shouldn't be confusing I will say that an ounce of prevention is worth a pound of cure okay almost all of the disputes I've seen over the over contracts arise because you go to sort something L after people have a falling out or there's some disagreement and you open the box and look for the contract and there isn't one or it doesn't have a lot of the information that you need it doesn't have all the details so the more you can be proactive and do these things upfront and think about these things upfront and that's part of the reason I'm here today just to give you an awareness of these issues you'll be in a better position to understand what your rights are to manage those rights and enforce them and deal with any fallout when things go sideways okay things may never go sideways for you and if that's the case I'm happy for you but sometimes they do and I've seen it firsthand if you don't have things in writing it's a real mess and the lawyers say something is a mess that's code for it's expensive okay if it's fuzzy and it's a mess it's really expensive all right so here's what it comes down to okay it's not complicated you really want to sit down the who the what the where the when the why and how much okay that's it and we'll go through some key examples over the next couple of slides whoo so the first thing to think about from a contract is who are you are you individual do you have a team of people working with you are you registered do you have a registered company are you working as an individual photographer is there a partnership what's the legal nature of the business okay you'd be surprised how often people don't understand this I've had clients tell me that their company name is X limited when I look at the information Gold not that company doesn't even exist you've been working out this for ten years buying and selling things where the company doesn't actually exist the name is totally different they don't pay attention to that stuff it's very important get your legal name right figure out who you are okay who you doing business with who are your clients are you doing business with a bride and a groom that comes up sometimes are you doing business with a company if you're doing business with two people or three people please get them all to sign the contract make them all personally liable if you're doing business with a bride and a groom right you want both of them to be on the hook when there's money Owen right you want to make sure that let's say they have a huge falling-out if your contract is only with the groom he may not be very interested in paying his bills okay I hate to say it things do go sideways sometimes okay get people to sign the contract figure out who you're doing work for and who you're taking instructions from get them to sign the contract what what are you doing what are you what are you being asked to do what do they want are you setting up a one time relationship it's just a one-off thing is there an ongoing relationship what's it look like try to understand upfront and have a discussion with the client about what they're actually looking for what their expectations are if you're doing a photo shoot how many shots are you doing is it a time shoot like it's 30 minutes and whatever you get in the 30 minutes is great is it I want to get a hundred good shots of something and then we'll take the best ten have these conversations up front not everybody's gonna be interested in this but just be aware that these are things you want to think about this is a big one who's going to own what afterwards okay the default rule is the author is the first owner so the photographer is the first owner maybe you want to change that maybe they're willing to pay you premium to be the owner of some portion of the work maybe they just want digital prints and you can use everything else you can continue to have a light maybe you give them a license to the digital for social media purposes figure out what you want to retain figure what you want to use and how much they're willing to spend for it okay yeah and she takes pictures of my poetry book so she would be the number one author but when we're creating contracts together how do we put that together because it would be images of my work so I want to understand that little better she's taking images of the like promotional images of the book or is it yes no not her okay well let's think back to first principles you're the author of the book in poetry so you you're the first owner of the book on poetry she's the author of the photographer for the foot photographs so she's the first owner of the photographs so between the two of you you got to figure out who was gonna own the photographs maybe you're okay with that relationship right maybe she's she's you know you put them up on a website use it to promote the book you pay her some fee but by large she retains ownership and you just get a license to use them on your website maybe that's all you need right if you go on a big mass you know branding tour maybe you're you know selling books all across the country you want to put them on some standees some other promotional materials maybe now there's gonna be a different relationship okay so it's sometimes hard to know upfront where things are gonna go but just give that some thought all right the other thing practically is and don't take this the wrong way but how easily can her work be replicated okay I'm assuming you still have the book and if things there's a falling out here is it you just okay so there's a falling out here and she doesn't want to ever give you her her books are the photographs of the books again well you could say well I miss Jess but I'll take someone else's I'll get someone else to take the photographs in my book okay and you'll sort that out the wedding thing isn't quite so interchangeable right if the first wedding photographer absconds with the photographs I'm not going to get married again just the purposes of having some nice photographs okay so understanding how replace all the work is can actually be really significant in both in determining value but also how much time you spend figuring out the contract right I there probably isn't a contract between you guys on the photographs I'm not surprised right do you guys have a deal oh that's good that's good I'd bury him good good and put it in writing even better okay if you do wedding photography please put a put a written contract in place if you're not you're just setting a book yourself all kinds of all kinds of problems okay that's a good question you know what use isn't what use is being contemplated understand the use if it's private use for a wedding I mean you can sort of figure out most of the time how broadly these are going to go there's some exceptions you've had a really interesting situation with your photographer with your photographs that's a bit unusual I think by large that's largely private use for wedding photographs versus commercial use for advertising where they may show up in all kinds of prints do you want to restrict subsequent private uses remember if you're commissioning a photograph the person commissioned in the photograph has some inherent rights to use them for private use I can post them on social media maybe you want to lock me out of that right maybe you want to restrict it and keep it much more locked down you can do all that through a contract okay where if you're doing a photo shoot where is it being done is it a specific location is it multiple locations we talked with this already what countries laws this is really important what countries laws govern the agreement pic Ontario Ontario is a nice place to do business right we have nice courts they're pretty reasonable they're not the fastest but you're not gonna get some crazy decision from maybe a judge maybe in Alabama and I'm currently fighting a case in Alabama so I can say that with some honesty when you know figure out start dates what time what time what day does this contract start are there specific dates for a shoot are there dates when the proofs will be delivered a final delivery date for something final like final prints digital's when you get paid this is a nice one it's nice to get paid I like to get paid I'm sure you like to get paid do you want to get paid up front I'm gonna get some percentage of the money up front I think these things through put them in the contract how long do you miss to our originals how long you store digital prints for Isis pecked by now most people are storing them for of time they can be downloaded and at some point you just wiped that stuff away because storage is not free it's cheap but it's not totally free how much how much are you getting paid is there a certain payment schedule have you figured it out in advance what about the things like out-of-pocket expenses who's paying for those venue fees travel costs all of that stuff figure that stuff out in advance what about cancellation what if they cancel you're gonna keep a deposit is the deposit entirely non-refundable is part of it with fundable is there a blackout periods that if you cancel within seven days you know if you if you cancel a year up you can probably read book pretty easily if you cancel the day before well you're basically giving up all the revenue because you're you can't just rebook something 24 hours beforehand right so having windows when you can't cancel and panel use an associative that yes you sign for something you've got three days to change your mind good question I don't know that's basically what there's are like cooling-off periods consumer protection rules I'm not aware of anything like that per se that doesn't mean it doesn't exist so yeah I don't know good question I I imagine there is I'm just thinking now I think it's kind of industry specific I think like things like cell phone contracts or even maybe even buying a car there's rules around that I don't I just don't know about photographs I'm sorry this is seven days yeah okay oh yeah okay so there you go it's good to know right I mean these things are and then my contact at the theater like you have seven days together yeah but the dealership tried to give me a hard time and then yeah it only four brand-new credits very useful yeah it's pretty it was for new cars so I'm not really sure but but it but I could you write about industry specific I think I think it's highly specific and that's a relatively new phenomenon right like we had this theory and sort of contact law for a long long time that if you're going in to enter into a contract you could just negotiate right you can negotiate with Walmart they'll be fair to you won't they the reality is they're not right they're gonna screw you over so you have no bargaining power like zero so we have seen in the last couple of generations the rise of a lot of consumer protection ISM which is really meant to give the purchasers who don't have a lot of bargaining power some rights some rights to back out and so on so maybe there is gonna be something like that in the photography side I've never seen it interior design makes sense I mean that those are big ticket items lots of money being spent the interior designer is gonna go out and out of pocket for a lot of things right so oh no no okay well there you go so now that's again I'm learning I didn't know that there's photographers that say you should never use the term retainer that means that they could get their money back you should always think ah compatible deposit yeah which retainer is more like I've got your money and I'm holding it in trust until I until I've done the services you prompt that I promised you and so I'm sort of pretending that I'm gonna keep it safe for you until until we actually spend it so it is technically refundable a non-refundable deposit I think is a very different concept I would use I would certainly use things like non-refundable if it's not a fundable right if it's a hundred dollar booking fee for a session you want to make it clear that you know this is non-refundable right if I'm if you say well give me the cannot fund a little pause of a thousand dollars and I said well I'll just give you five thousand hold the rest as a retainer and if the I back out and I'll tell they'll take that four thousand back okay just make it clear right so just if you don't today here's a great rule of thumb if you don't understand what a word means ask somebody or explain it and they're in the written document right if you think retainer means when I say retainer it means that I get to keep your money if you back well that's what that's gonna mean okay but you're better to try to find the right word and that's what lawyers do most the time we're just reading dictionaries trying to find the right word for things it's just don't tell anybody we're not really that smart so cancellation is a big one what if they cancel here's an even bigger one when can you cancel I'm sure you've had clients that are huge that are a huge problem at some point it's not worth your time so can you build something into your contract that lets you get out of there because I'm done with these guys I don't want to be involved in them anymore so think about that think about what the terms are and you can probably get a sense when you meet somebody for the first time that they're gonna be really easy to deal with and Lord they're gonna be a huge nightmare so maybe you put a premium on somebody when you know someone's gonna be difficult maybe you build in a huge premium to say look this is gonna be a rough go maybe it's worth the money but you know be ready to walk away if it's the right thing for you okay but build into the contract because you guarantee if you do it people are gonna be pissed off okay you releases you probably know a lot more about this than I do personally but make sure you get the right releases you can build those into the contract releases for personal use for commercial use if there's releases involved in certain venues we talked about the perimeter stitute the Eiffel Tower wanted something new I'd like to learn more about so maybe you get a release from the Eiffel Tower if you want to have it in the background for a certain wedding photographs I don't know good to know limits on liability you know acts of God injury illness what happens if you get sick what happens if they get sick what happens if Jane and John don't get married on July 7th 2017 what happens if the digital files are caught in a fire do you have backups if you don't have backups what happens if they are lost who's responsible for that putting all these things and thinking about all these things they don't all have to be in the contract but these are the kinds of things you should be thinking about if you're not already already doing so and the more you can specify these in the contract the better right ideally you don't want have liability for any of these things right if there's an act of God if there's rain or hail you don't want that to be a problem things like extras we talked about the fees for travel fees for assistance if you have to buy something some contracts with the videographers I'll come back to this in a second venue fees retouching you know not just the fees but how much control are they gonna have how much control they're gonna have overall on the selection of proofs and all that stuff black and white versus color if you if you have a certain style presumably they knew that going in but maybe they only want black-and-white photos maybe you don't work in black-and-white or you don't like your stuff in black-and-white this gets into your sort of reputation and your sort of moral rights issues some contracts with videographers and some contracts with other vendors generally can be a little bit of a problem right because if you're kind of the head contact the main contact for the client and all of a sudden there's three or four people or even one person that's working for you as a subcontractor effectively you're sort of stuck in the middle right so if they don't deliver on whatever they promised you know they're there there's now a contract between you and the subcontractor and the third party the client may not have a direct contact a direct contract with the subcontractor okay which means that you're on the hook for if they don't deliver the product it can be damaging to your reputation it could be time-consuming it's just for you to chase these folks down so you may want to consider restructuring the relationship where you know if you if you bring in someone who's a videographer and say hi you know I'd like you to meet so-and-so you do your own deal right I'm not I'm not the intermediary I don't wanna be the man in the middle of the person in the middle chasing this person down so the client can do their own direct contract with the videographer and with other subs that's gonna depend on all kinds of things the nature of the relationship how long you may have worked with this person how trustworthy they are you know I would say if it's a new relationship if it's a new subcontractor I would be very careful about putting yourself in a position where you're exposed we do a lot of work with international law firms I work for law firms all over the world and vice versa so if they send us work we send them work and when it's in the usual course of business a firm I've been working with for a long time they will bill me and I will build a client because I know they're gonna do the work I've known these guys ten years they're gonna send me a reasonable bill and the clients going to pay the bill but I'm stuck in the middle if one person doesn't deliver or screw something up or if the client doesn't pay I'm now in the middle for new relationships with new firm or where there's a lot of dollars and cents on the line like if it's something really really big I'll basically kick it out the door and say no I'm not in the middle anymore you guys work this out together I'll sort of sit as a third party consulting but I'm not going to be on the hook for a hundred thousand dollars of legal fees if something goes sideways between this between you two ok any questions about contracts ok there's lots of precedents floating on the internet yeah are they signing off the rights to all of the 147 other people that are gonna be at the cutting what do you think I'm going to say that any of those people could tell me at any point that I can't yeah yeah so is there like when it comes to a model release I'm kind of like if I see the photo here at public I can still use that if the news typically you see people walking makes their but it's never their face right but in fact is it the face that they could say no this is my face you can't use that yeah typically what you you're starting to engage with our privacy rights so the right of somebody sort of to remain private and not have identifiable characteristics displayed so that's what really gets engaged and that's part of the reason you see people from behind and not necessarily the faces I certainly don't think that you can you can sign off and wave 147 people individual rights of privacy what I have seen in practice and I've been I've been in one wedding where there was a it was actually four there was a TV show shooting there I was on one of those what was the name of the show something like that yeah I was like when they remake old wedding dresses it's not like that anyways it was a and what they had was they had prominently posted at different points in the venue was they said hey dummy we're shooting a TV show your face is gonna be on TV if you don't like it basically leave you have to go and they worded it much more professionally than I did I put on their wedding website like you but who will be photographed during it because it's such paint if I go and blog an entire wedding oh look at this sweet little ring bearer and then the ring bearer is mom it's like you cut every single photo that includes a spring yeah [Music] for a TV show just 8 by 10 photo Koreans just being like hey this is going to be photographed videotape is going to be a Bond film media like right next we show if at least an attack I'm sure they can still copy be like excuse me yeah if you don't like it put some clown makeup on it yeah no yeah I would say I would say I with my next wedding yeah don't talk Karen its fused but I have to say first couple years very marriage he was the one who was always watching his wedding shows we're looking at the dresses I'm like are you planning your next wedding she's like maybe maybe I would say put it on the website it's one idea but I like the idea of it being physically at the location because neither one's gonna go to the website and the more people you catch with that and that's why they're everywhere right the more people you catch with that the harder it becomes for them to argue later I didn't know right you didn't tell me I mean if it's everywhere at the venue then there's no way they can avoid it you know like your drunken shenanigans are going to be captured by a photographer right yeah yeah that's true it's like I mean if you don't know that today with that like the rise of social media I mean I did really stupid stuff as a kid and none of it was documented I have to say that's not the case with my kids anymore so I thought times have changed yeah they're children consequently berserk so in fact like posting that you have around any HSN you don't you know it's it's I think that's I mean that's heard of how you react to those kind of situations as well all practically speaking people get pretty defensive of other kids so yeah I think that's a good good mattre yeah I know I was being a bit tongue-in-cheek there yeah if you have any concerns you can just sort of let them know or maybe there may be like certain areas where they could be seated right like they're not gonna show up in the main shots or where you if you know kind of who the red flags are you can give them an orange sign to hold up or something or green-screen screen the face or something we actually don't control like we we save you things like you can't have other photographers at your wedding yeah they don't control their asset they're gonna take camera out they're not about to stop their ceremony yet excuse me yeah every time for me to sign off on but I feel like there is some like awkwardness about what we believe that our rights are versus what sobriety or even Utley can even do about it yeah I mean that's one of the that's a good mini segue into my next sort of slide which is kind of what to do when somebody's being a bad guy and you know we talked about it earlier there are rules and then there are how are those rules are interpreted how people individually interpret them how people disagree and how those things lead to fights and that's why we have litigation that's why things that end up in front of the courts the first thing you can do is you can do nothing which is sorta to your point like a lot of times you know if somebody pulls out a little sort of you know digital camera it's taking a few shots during the ceremony probably not gonna be a big deal for you if somebody shows up with the huge zoom lens and is there with like a professional package year and three assistants totally different story right also now they're competing with you and that's totally offside so your response is going to be measured by the significance to your business but also what you had in the contract right the more you have in the contract like that at least you have legal rights to fall back on if you if you need to in some cases if somebody takes your photograph you may just want to ask for a photo credit all right like sometimes they'll be something on social media where somebody's using your photograph and they're clearly they're clearly violating copyright law or you think they are but maybe it's actually good publicity for you right maybe it's actually a good segue back to to get more work as long as they can say hey I'm happy for the kid using this just give me a shout-out maybe put a link to my Instagram account or something like that so that they can say you know here's this great photographer because maybe they're actually singing your praises and talking about how great you are right - that's on the theme of criticism if it's positive criticism maybe that's really really good for you so don't immediately react and say this is necessarily bad PT Barnum's to say there's no such thing as bad publicity right all publicity is good publicity you might want to just request they take it down right I mean that's you know sometimes these especially certain social media sites will have a way to just request to be removed you can send a DM to the person there a lot of times people don't realize right like people don't often think about what they're doing on the Internet is being infringing copyright right it's a little bit more obtuse if when you're going and downloading something from BitTorrent or sneaking a camcorder in to watch The Avengers movie and record it right that's pretty obtrusive they know what they're doing is probably offside but you're just reposting an image on the website you find or taking an image and posting it in a different context they may be doing it innocently so sometimes simply requesting they remove it might get you the result you want there's something called the Digital Millennium Copyright Act the DMCA which gives you the right to file a more formal notice and takedown requirement which allows you to actually send the request to the site that's hosting it and there's every website every social media site will have like a DMCA procedure you can go it's a simple procedure you can walk through it fairly easily without too much help from a lawyer basically here's me this is my content you need to take it down they typically respond by taking it down the other side I didn't have the opportunity to contest that and say no either it's fair use or fair dealing or you're not the copyright owner but you know they could baby basically do a counter challenge and it could be reposted but it's a quick way to get something down if they're not voluntarily if they're not really cooperating or the content publisher the person who posted it isn't really cooperating you can go right to the site and actually use the site's resources to do that you can get involved in sending a cease and desist letter could be friendly could be pretty nasty sometimes it's you know a simple email from you might actually sort of escalate this a little bit it could involve getting a lawyer involved to write letters we do this kind of stuff all the time you know we typically can make a good assessment pretty quickly as to whether something's offside or not and what your rights are but it's also a question of how much you want to spend right not just money because it does get it expensive to go after some of these things but also your energy and your stress level right I'm doing some work for a small on a copper issue for a small client out in Woodstock and you know somebody's taking some of her stuff it's a borderline case we're trying to keep the cost down but she's also very frustrated with this it's very personal to her it's something she's been working on for the better part of a decade so you know it's not just about the money for her it's very emotional so you have to decide whether having it out there and is gonna be worse than sort of the hassle of going through the fight because it can be a little tough it's sort of your point about Disney Lindsay like if you get into a big fight with Dinsey Disney you can expect it to a be expensive and B be stressful and not over you know in 24 hours and at the end of the day and this is not recommended and recommended at all is you can go to litigation right you could take someone to court we saw some cases today where the parties actually went to court over something sometimes they win sometimes they lose but inevitably it's very expensive if if you want to talk dollars and cents you know you're looking anywhere from twenty to thirty forty thousand dollars to hundreds of thousands of dollars for more complicated cases okay so not a pretty way to go but it is out there if somebody's really offside you know the Disney case right if it really was that important and they really was making a big show of this you know it might be worthwhile taking them to task and trying to try to fight the good fight any questions about those okay a couple of links here and I'm gonna circulate the slides through Lyndsey's so anyone who wants to have my slides fair use for dealing share them I don't really care this is this is a sideshow for me I don't teach professionally so I'm happy to have people use my content this is a pretty good site actually for photographers and I tried to incorporate some of their tips into some of the stuff we talked about today it's not current that's my only comment some times what they're saying may be a little bit dated and that's one general comment for a lot of the stuff you see on the Internet first of all you may have to figure out where it is because there's a lot of us stuff there's a lot less in Canada this is a Canadian one and it it's kind of updated whenever it's updated right there's nobody sort of making sure it's updated 24 hours after something changes so rules change all the time the laws change all the time so just be careful when you get into something where you think you might be running afoul of something it might be worth giving me a call or we're talking to someone to try to get some more information the Canadian Copyright Act is a good reference I don't know that you're gonna ever want to spend time reading it but if you ever want to think about something like architectural works right buildings you can you can google it and you can scroll through and you'll see the section which can help you even guide in your search we're trying to find something on the internet and then another one that's kind of useful the US Copyright Office the US gets a lot of criticism but they do a good job with their IP rights of having information available for people to read and just you know manuals guidelines presentations on copyright law ethic hues that kind of stuff just a good sort of central land launch page for a lot of that stuff keep in mind it is us centric right duh obviously I didn't recommend the Canadian one because I don't have a lot of respect for the Canadian copyright office they're not very good at what they do that's my personal opinion sorry if that offends anybody I do a lot of work with the Canadian and the US side the u.s. they have faults but they have their together the Canadians are a little bit backwards on a lot of stuff I find them really frustrating so I also don't trust the Canadian content okay that's I'm not to go on a soapbox here the Canadian content I find you get from the government is really out of date and it's often really in conflict with the law the u.s. does a much better job of actually saying this is the way things are and they're based on the so no news okay that's it for me any questions I'm happy to stick around either in group or 101 after thanks [Applause]