Legal Questions for Wedding Photographers
The minute I met Katy Carrier, I liked her. It was an instant connection and we bonded over awkward stories from law school. The main difference, however, was Katy finished school (Hey, look, ma…I’m a drop out!) and has since become a successful lawyer here in Los Angeles. The best news is Katy’s firm, Carrier and Associates, specializes in creative businesses and event industry professionals. Yes, she specializes in all things weddings, so when I have a legal question in regard to photography, I go straight to Katy.
Last week I asked on Facebook if there were questions you wanted answered, so Katy is here to respond to the most popular questions…I hope this sheds light into complicated issues facing photographers.
Every individual has a right to privacy and a right of publicity, which allow them to control how their likeness is used commercially. This means that even if you own the copyright to the photographs, if the individual’s face is visible and discernible, you still need permission to display those photographs, which is generally achieved by a model release agreement (whether a stand-alone agreement or as part of a longer service agreement). Without a signed model release from the client, they do have the right to request that you take the photos off your website and you need to comply with that request. Moving forward, I would suggest always including model release language as part of your standard written client agreement. Of course, since only your actual clients sign the contract and not their guests, this model release language is not enforceable with respect to using the guests’ likeness since your clients cannot sign away their guests’ rights. In order to truly have permission from the guests, they would need to personally sign a model release. If you choose to use images from an event on your website/blog/Facebook, etc. without permission from guests who are shown in the images, you need to be aware that you may be asked to remove the image(s), and if so, you need to comply. While the average person would likely just ask you to take the image down, you do run the risk that someone in the photo is a model or a public figure like a politician, or just an intensely private person, in which case that individual may be more zealous about controlling how their likeness is used (and could decide to file a lawsuit against you).
If someone uses images of you without your consent in a commercial manner (i.e. in connection with their business), you would be able to invoke your rights of privacy and publicity, and demand that the photos be taken down off the blog, website, etc.
In California, sales tax must be remitted for the full amount of the purchase price for your photography services if you are including any tangible goods (discs of images, albums, prints, etc.). You are not allowed to separate out the services from the tangible goods in order to only tax the price of the goods and not the services. If you truly only deliver services and then deliver the images digitally, under the current tax laws you would not need to charge sales tax, but if a client then wanted to order an album or other tangible product six months later, you would have to charge them sales tax on the full amount for your original photography services as well as on the cost of the album or other product.
You’re in luck! I just launched www.LawForCreatives.com, which features contract templates for photographers and other creative professionals. They are self-help legal documents that are tailored to your state, and each contract comes with an explanatory guide to help you understand the language and customize the contract for your specific business. We’re giving Jasmine’s readers a special discount on contract templates purchased through 12-31-12; just use the code JSTAR during checkout for 20% off of your entire purchase!
A DBA, or “doing business as” name is essentially just the name that a sole proprietor works under, while a limited liability company (“LLC”) is a separate legal entity that must be formed with the state. With a sole proprietorship, the owner is personally liable for any business debts, so if you were sued by a client for breach of contract and the client won, the money awarded to the client could potentially be paid out of your personal assets after your business assets are depleted. With an LLC, you are creating a limited liability business structure, which means that you are limiting your personal liability for business debts, so that a judgment against your company would only be paid out of the business assets and your personal assets cannot be touched (so long as you’re complying with the formalities of maintaining the LLC). The decision regarding whether to convert from a sole proprietorship to an LLC generally involves an assessment of what kind of personal assets are at risk (i.e. do you own a home or have a lot of personal savings?), as well as deciding whether you want to invest in the additional costs of setting up and maintaining an LLC. In California, each LLC is responsible for payment of an annual minimum franchise tax fee of $800 regardless of your profitability.
I would say that one of the most common issues I see is misuse of independent contractors. There are very specific rules and regulations surrounding 1099 independent contractors (as opposed to W-2 employees), and failure to comply with these regulations can result in really steep penalties and fines for businesses. Check out this recent post on the Law for Creatives blog for more information about independent contractors. Template agreements for independent contractors are also available on Law for Creatives.Many thanks to Katy for helping wedding photographers navigate our way through legal considerations! On that note, here’s some legalese I’m highlighting on my blog to show my mother not all was lost during my time in law school.
**The above information is not intended as legal advice and does not create an attorney-client relationship. If you have questions about the law as is pertains to you and your business, it is suggested that you consult an attorney who can assess your specific circumstances and advise you accordingly.**
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