I Use Photoshop. Sue Me.


Hey there folks!  I’m back.  It’s been a LONG while, I know.  I moved to Florida, changed my business model, my teenager got a boyfriend, I got a puppy and, well, life has been BUSY. But it’s 2016 and one of my new year’s resolutions, along with eating whole foods and cutting out/down on alcohol and sugar, is to blog more.  Let’s hope the blog thing lasts longer than the eating/drinking thing.  (Hey, cut me some slack – you did catch the part where I said my teenager has a boyfriend, right?  Mama needs some wine every now and then.)

Anyway, so I mentioned a new business model.  I have closed my portrait studio and, while I am still accepting portrait sessions on location, I am focusing more on landscape photography.  The reasons for this require an entirely separate blog post but for now let’s just say that this beautiful beach town in which I live inspires me to get outside and shoot more of Mother Nature.  So I photograph sunrises, sunsets, moon rises, moon sets, rain, fog, waves, stars and even a little wildlife (and I don’t mean the high school seniors).  And to show this work I have joined several photography groups on Facebook where local people post their images of the area.  Some of the contributors are pros.  Most are amateurs and/or hobbyists or just people who take cool pics with their phones and want to share.  It’s fun and the people are great and supportive.  One difference in these local groups compared to the all-pro groups I am in is that the majority of folks in these groups talk about Photoshop like it’s an evil stepmonster.   I am constantly being asked if my images have been “altered” in Photoshop and I see others comment things like “If you use Photoshop, it’s cheating” or “You should post images straight from the camera” and “If you have to fake it, don’t make it.”   Um, no, no, no, no.  Or, maybe sometimes but mostly, no.  My images all go through either Lightroom or Photoshop or both.  Every. Single. One.  And I don’t cheat.

Images Need to be “Developed”

A camera – even a $10,000 one – can only do so much.  Do you remember film and darkroom days?  Maybe you are too young or you didn’t do much photography back then because it wasn’t as, yes, I am saying it – “easy” – as it is now.   But, I do.  I used 35 mm film.  Film that had to be loaded into my camera and when I finished the roll it was tucked all safely inside that dark little yellow and black or green and white canister waiting to be developed.  There was no such thing as “straight out of camera” (SOOC) unless you were looking for a black square.  Film had to be processed.  And how it was processed determined how the images would look.  We had options.  We could decide how long to expose those negatives.  We had filters we could use both on the camera and in the darkroom to get different effects.  We could decide what paper to use.  Did we want high contrast or low?  Did we want muted colors, saturated colors or black and white?  We could expose one frame several times directly in camera to get cool effects.  We could dodge and burn to make one part of the image lighter or darker.  We could even get crazy and merge two or more images into a single image.  I could go on and on about the creative options available to develop a single image.  There were hundreds of ways to create an image back then.  Today, Photoshop gives us millions more options but it’s the same concept.  When a digital photographer takes an image with her camera, that image still needs to be processed.

I majored in photojournalism.  I know how to shoot.  So, I use my manual camera settings to get as close as possible to perfect in-camera.  But I still must develop my image so that it looks like what I saw and what I want to portray.  First, like with a negative, I can’t post my images SOOC.  They are shot in a format that isn’t supported by most computers or web pages.  I shoot in RAW – a format that has so much information that the image is far too large and complicated to be posted directly.  So it is absolutely necessary to put every image I shoot through photo editing software.  Further, RAW is also a format that is meant to be “developed.” When I load my RAW image into Camera Raw (Photoshop) or Adobe Lightroom (another photo editing software that works with PS) it typically doesn’t look anything like it did on the back of my camera.  It is flat and dull.  It is simply a “negative” and it needs developing. I then choose the correct exposure, desired contrast, the right amount of highlights and shadowing, I choose the white balance and color balance, much like I would in a darkroom with my filters, papers and chemicals.   Once I get the adjustments just the way I want them, I can then export the image in jpeg format so that it can be printed or uploaded to web pages and “posted.”  Most of the time this developing is all that is needed.  Sometimes, however, a little more adjustment in Photoshop is required to give the image the professional touch my clients have come to expect.  I always try to make sure my image looks like the actual scene looked when I photographed it.

You may be asking,  “why not just shoot in jpeg?”  I don’t for the same reasons I didn’t use polaroids for my pro work back in my film days.  I’m sort of kidding, as shooting in jpeg can give you a wonderful images.  But I’m a pro – why wouldn’t I shoot the best quality image I can shoot and why would I give up the chance to develop my own images?

Digital Manipulation isn’t “Cheating” (with honesty caveat)

There are, of course, some images where a little more Photoshopping (surely this is an acceptable verb now, right?) is desired.  For example, I recently photographed the full moon rising over the beach and there were some boys surfing in the moonlight.  With my naked eye, I could see the sand, the dunes, the waves, the moonlight sparkling off the water, the clouds on the horizon and the full details in the giant full moon that had popped out of the ocean like a jack-in-the-box.  But, alas, as good as technology is nowadays, my camera just couldn’t capture that entire scene properly.  I could either choose to expose the foreground properly to see everything but then the moon was a blown out circle.  If I then exposed the moon properly to see all of its glorious detail then the rest of the scene was pitch black.  So, what’s a girl to do?  Post the SOOC image that looks nothing like the real scene looked?  Yeah, no thanks.  Or do I create a composite in Photoshop using two images merged together?  “CHEATER, CHEATER PUMPKIN EATER!!” Really?  If my image depicts the actual scene as it looked to the naked eye is that really cheating?  Should we all just accept that our night landscape shots including moons have a big blown out circle in the middle of the image?  Ugh – how boring.   Would it have been cheating to create the same image using a film camera and darkroom techniques or is it just Photoshop that is cheating?  Cuz, frankly, it’s really no different.  I DO think all photographers need to be honest about the alterations they make in this regard. Nobody likes a liar.

Okay, so what about more extreme Photoshopping?  For instance, dropping in a gorgeous sky where there wasn’t one?  Or moving objects, placing objects that weren’t really there, enlarging moons so they are like something out of E.T. or other extreme digital manipulations that aren’t “real?”   This type of editing is most certainly not acceptable in certain genres such as photojournalism where the need to depict a scene accurately is of utmost importance.  However, there is a place for this type of digital art so long as the artist is honest about it.  Again, it’s not cheating so long as the artist acknowledges the manipulation and isn’t trying to fool someone into thinking that they possess mad skills allowing them to perform the impossible.

So you see, Photoshop (or other digital editing software) is not a bad thing.  It is simply a necessary tool.  A tool used by pretty much every professional digital photographer in the world.  Even some of the old school film photogs are putting their images in digital format and applying adjustments in PS.   Used conservatively, it simply helps the photographer depict the scene as she saw it.  Used creatively, it can help an artist create some pretty fantastic stuff.   When you see my work, please know that it has been through some sort of editing software.  Sometimes my adjustments are minor.  Sometimes they are more extreme.  I always make a note when I do a composite or other “extreme” manipulation.

If you are an amateur or hobbyist and would like to learn how to take your images to the next level, do your research on editing software.  There is a lot to choose from.  You can find tutorials online and most local colleges offer classes to learn how to use Photoshop.  It is a very powerful program.  I learn something new every day.  The key is to have fun and make art.  Your way.

Happy shooting.


Going Commercial – What You Need to Know Before You Sign That Studio Lease

*Warning!  Long post – you might want to just read the last paragraph and move on!  

After years of operating your photography business out of your dining room, you have decided to take the plunge and open a studio in a commercial building. You are excited to finally have a place where you can meet with clients, create sets that you don’t have to tear down before you serve your family dinner. To top it off, you have found a great space in a commercial building downtown where the rent is affordable. Yes, the building has been empty for quite a while and your space is around the back where visibility from the road is poor but the rent is lower than anything else in town. Also, you plan to cross market your senior portrait clients and bridal boudoir clients with the salon that is the same building and occupying space next to a salon is a must for you. Further, the high school kids walk right past this building on their way to the ice cream shop after school every day and there is no other photography studio in the area. The space needs some work – you want to put in wood floors, install some faux brickwork and your new motorized backdrop system and lighting equipment that you have purchased just for the space.  You plan to spend quite a bit of your own money on equipment and furniture but if you can stay in the space for at least 4 years you will have all of that paid off and be turning a nice profit.  The landlord has agreed to a two-year lease but says that he sees no reason why you wouldn’t be able to renew for longer if everything goes well. You cannot wait to get started and you just met with the landlord, signed the form lease and obtained your keys. You are very excited! What could go wrong?

A Look at the Lease:

1.         Rent.  So, the rent in your new space is lower than anywhere else in town and you are congratulating yourself on a bargain found. But, be careful that your lease doesn’t contain surprises. Sometimes in cases where a building is empty, landlords entice tenants with the promise of low rent. But lurking in the lease is a provision that states that as soon as the building becomes more occupied, your rent is subject to increase. If you negotiated a fixed rent deal for the term of your lease, make sure that the lease states that the rent shall not be increased and check for any language that states otherwise. Even if that is not an issue for you, make sure the lease states what you actually negotiated. Many leases provide a fixed rent for the first year but rent is subject to increases each year thereafter. Sometimes the increases are fixed by a certain percentage or a flat amount. Other times the increases are tied to a Consumer Price Index (CPI) – like inflation. Increases like that are not within your control and you could end up with a much higher rent than your budget allows.  If the landlord insists on such increases, you can try to negotiate a cap for some protection. While it may not always be possible to negotiate a flat rent, be sure you understand how any increases are calculated.

Another form of rent that you may see in a lease, especially if you are in a commercial shopping center, is “percentage rent.” This is rent that is based on a percentage of your gross sales. While this would not be typical for a photography studio, it’s best to be aware of it in case you do run across it.  Sometimes landlords will allow you to pay a lower fixed rent in exchange for an agreement by you to pay additional percentage rent. Basically, it’s their way of saying “hey, I think you will do well at my center so I’ll give you a lower rent to get started but if you do well, you pay me extra.”  These provisions can sometimes be based on a floor whereby it only kicks in if you gross more than a certain amount of sales in a year. Percentage rent provisions are cumbersome and require careful accounting and reporting to a landlord and the landlord has the right to audit your books and records.  You also want to be careful to strictly define what constitutes “gross sales” and what is exempted.

2.         Term. The term of your lease is how long your lease lasts.  It is the period of within which you will have to pay rent and fulfill all of your lease obligations even if you aren’t occupying the space. So, you need to decide how long you want to be there and how long you can afford to be committed to lease obligations. If you are already an established business in the area and you know you don’t plan to move, it may not be too risky for you to sign a lease with a term of 5 years or more. If, however, you are just starting out, you may want to stick to a shorter term. If you are going to be investing money in a space, you certainly want to be sure that you have the right to stay long enough to make the improvement costs worth the investment. You may want to consider negotiating the safer, shorter term but also negotiate options to renew so that you can elect to stay in the space if everything is going well but you don’t have to stay if things are not.  The lease should set forth the rent for your option periods so that you know what you will be paying if you exercise your option. Don’t rely on the landlord’s word that you’ll be able to stay. Without a valid lease with enforceable options to extend, the landlord has no obligation to allow you to stay and could demand much higher rent knowing that it would be difficult for you to make a move.

3.         Pass Through Charges (Taxes/Insurance/CAM) – Many commercial leases are “triple net” leases which means that, in addition to rent, the Tenant is responsible for paying to the Landlord some amount for taxes, insurance and common area maintenance (CAM) costs attributable to the property. Negotiation of these items can get tricky and confusing. Many leases in shopping centers, for example, will require a tenant to pay its share of these expenses. Seems fair enough, right?  But, what if, as in the hypothetical above, the tenant is renting only a small space in a large building that is mostly empty?  A tenant would need to be sure the lease language regarding these charges is drafted in such a manner so that the tenant isn’t stuck paying all of these expenses for the entire building. If you are looking at a triple net lease, try to get the Landlord to fix these costs for you in the lease. At a minimum, state the estimated costs and be sure the formula for calculating your share of these expenses is based on a pro rata share using the square footage of your space as compared to the TOTAL square footage of space in the building. This way, you can be sure you are paying only the amount allocable to your space. Be sure you ask the Landlord to outline any and all pass through charges and exactly how they are calculated. If you can get them to a flat rate throughout the entire term, even better.

4.         Signage/Visibility/Parking – Of course you want your clients to be able to find you and visibility is key for marketing and making sure people know about you. But the space you have rented is in the back of an empty building. How are people going to know you are there?  Your sign of course!  Make sure before you sign the lease that you know what your rights are with respect to installing signage both on the front of your space and on any signage by the road or in the parking areas to direct people to your space. Many commercial buildings have restrictions on size, color and materials used so make sure that you have the right to install what you need and that you can afford to comply with the building’s standards. Signage can be very expensive so don’t set yourself up for surprises. I typically advise my clients to submit their sign plans to the landlord prior to the lease signing and get approval stated in the lease. Also, be sure that you have all permits and approval from local government as some areas can be quite strict and design committee approval may be required.

Related issues to think about when renting a space that is off the beaten path are lighting, parking and access to your space. If your space is in a dark corner of a building, make sure the landlord is required to maintain sufficient lighting in the parking and common areas so that your clients have a safe, well-lit path to your door. It is also advisable to negotiate a specific parking area for you and your clients that is close to your space. Many centers have strict parking requirements and the landlord can fine you if you do not comply. Make sure you check your lease for any restrictions on parking.

 5.         Maintenance/Repairs/Renovations. These provisions are very important, especially if you plan to install new equipment and make any changes to your space. First, with respect to renovations and improvements, you will want to be sure that your lease allows you to make improvements necessary for the operation of your business. If you know exactly what changes you want to make to the space, the best bet is to get the landlord’s approval up front and attach your plans and specifications as an exhibit to the lease. You may even be able to negotiate a tenant allowance where the landlord funds some of the improvements.  Of course, if you want the flexibility to make further changes during the term, you will need to make sure you have that right. With respect to repairs and maintenance of the space, be sure you understand exactly what you are responsible for. Many leases in commercial shopping centers make the tenant responsible for the HVAC equipment, utility lines exclusively serving the premises, plate glass and all interior walls, floor coverings, etc. In other buildings, the landlord may be responsible for those things. Be sure you understand exactly what you are responsible for and make sure that the landlord’s repair and maintenance obligations are also set forth and that you have remedies in the event the landlord fails to perform.  Imagine how surprised you would be if your air conditioner goes out in the middle of summer and you call the landlord only to learn that you will be responsible for installing new HVAC equipment in the space.

6.  Cotenancy. An interesting issue raised in the scenario above revolves around a co-tenancy situation. A co-tenancy clause is a clause that may be requested by a tenant who has an interest in making sure that another tenant or another type of tenant is located in the same center or building. While co-tenancies are usually reserved for big box tenants or national tenants, a small, local business might have some negotiating room to include such a provision. In the above-mentioned scenario, you have chosen this particular space based on the fact that a popular salon is located in the same building. But what happens if the salon leaves?  Would you still want to lease the space?  If not, you are going to want to try to negotiate a termination right or maybe a lower rent if the salon leaves or ceases operating. Co-tenancy provisions can get quite creative and need to be carefully drafted to be enforceable.

 7.     Use Clause/Tradename –  The lease you have signed says that the space may used as a photographic studio under the name “Jane Doe Photography” and for no other purpose. Well, you are a photo studio and that is your name so no problem, right?  But what happens if you need to get out of your lease and need to sublet or assign your lease?  Will you really be able to find another photo studio to take the place?  Even if so, they certainly won’t be operating under your name. Or, what if you decide you want to open a boutique in part of the space that does retail sale of baby clothes, hats and blankets? It is best to negotiate some flexibility into the use clause. I typically ask for “any lawful use” to make sure all options are open. And I always ask for the trade name requirement to be deleted. Unless you are a chain whose name draws lots of customers (such as “McDonalds”) the Landlord should not have a problem with such a request.

Another issue that can cause quite a problem in many leases involves continuous operations clauses. Landlords of shopping centers usually are concerned that the spaces are not “dark” and the tenants adhere to specific operating hours and do not shut down for long periods of time. Be sure to negotiate operating hours that fit your business, including the right to stay open in the evenings and on weekends if necessary. I always advise tenant clients to negotiate the right to close their doors if they need to. If your business isn’t doing well and you need to cut your losses, it may be necessary for you to close the business even if you can’t terminate the lease. But if you have a continuous operations clause, you could be in default if you close, even if you continue paying rent. Many landlords will agree to a recapture clause whereby they have the right to take the space back if you close your doors.  Sometimes a landlord will even allow an early termination clause that is based on how well your business does in the space. Allowances like these may come with a penalty fee.

8.         Assignment/Subletting – In connection with the paragraph above, make sure that the lease allows you to sublease or assign your lease in case you run into a problem and need to get out before the term ends. Most landlords will want some control here and will require that they provide consent first. In that case, negotiating language that requires that the consent not be unreasonably withheld will give you a little more leeway.  And you should always get some language allowing an assignment to a subsidiary or owner of your corporation or LLC in case you restructure your business.

 9.         Use Restrictions – Connected with your use clause, many commercial leases contain a long list of use restrictions. These are uses that are prohibited in the center. Most them are pretty straightforward such as “no tattoo parlors.”  Others may be more vague. Most commercial leases I have seen include restrictions on “any use that would injure the reputation of the property.”  Huh?  Well, let’s see. You have told the landlord that you are a photographer but did you disclose that about 50% of your business is boudoir photography?  “Not his business and anyway, it’s very respectable.”  Well, people in the community may not agree and the landlord may get complaints – especially since the space is so close to the high school. I typically ask for a representation from the landlord that the tenant’s specific use is approved.  For example: “the tenant’s current use as a portrait photography studio which includes but may not be limited to children’s portraits, family portraits, senior portraits, boudoir portraits, fashion and glamour portraits, and any other form of portrait photography shall not be prohibited so long as tenant complies with all laws and local ordinances.”

10.         Utilities. Most commercial leases provide that a tenant is responsible for hooking up and paying its own utilities. No problem, right?  But many leases also state that the tenant may not overload the building’s capacity for electric service. What about all those lights you plan to install?  Can the building handle constant use of strobes, hair lights, etc.?  If not, and you cause an outage, not only would you be in default of the lease but you could be responsible to other tenants for the disruption in their service. It is best to inform the Landlord up front of what you plan to install, what the required capacity is and then have the Landlord state in the lease that the premises has sufficient electric capacity to support such equipment.

11.      Insurance and Indemnification.  Most commercial landlords have strict insurance requirements and will mandate several types of insurance a tenant must have, including personal property insurance and liability insurance. Most also require that your insurance name the landlord as an additional insured. Make sure you review the requirements in your lease carefully and discuss them with your insurer so that you know whether you are going to need to spend money increasing your coverage limits, adding coverage etc. Also, be sure the lease requires the landlord to carry and All-Risk policy on the building and liability coverage. The lease should always contain a mutual waiver of subrogation so that the landlord’s insurer can’t come after you for claims covered under its policy and vice versa. Also, watch those indemnification clauses. Many landlord forms include an indemnification from the tenant only. Indemnifications should be somewhat mutual. Typically in commercial leases, a landlord will agree to indemnify you for anything that occurs outside of your leased premises so long you indemnify them for any damages occurring inside the leased premises. There are sometimes exceptions for negligence, gross negligence and willful acts and how much each side is willing to give depends on the size of the space, the financial strength of the deal and what the insurers will tolerate.  I have negotiated many variations of indemnity language and it can get quite complicated. Always have your lawyer look over these provisions to make sure you aren’t putting yourself at more risk than is necessary.

12.      Exclusives. An exclusive clause is something you may want to consider if you have any negotiating power in this deal. This is a clause that gives you the right to be the only tenant who conducts your use in the landlord’s center or building. Sometimes, these clauses can extend to other properties landlord may own within a specified radius outside of the center. So, for example, you discover that your landlord also owns three other buildings in the area and that other photographers have been looking at these spaces. You want to be sure that you are the only portrait studio in this little area so you negotiate a provision in the lease whereby the landlord agrees that, during the term of your lease, the landlord agrees that it will not lease space in the building or in any of landlord’s properties within a three-mile radius to another portrait photography studio. These clauses can get quite creative and sometimes complicated. They have also been attacked as creating a restraint on trade. If you are successful at negotiating an exclusive with the landlord, be sure an attorney reviews the language to ensure enforceability.

 13.      OEA/REA Issues. If the space you are renting is a part of a bigger overall development such as a strip mall or other commercial development, your lease will likely have language requiring that you comply with all provisions of an Operation Easement Agreement (“OEA”) or “Reciprocal Easement Agreement” (REA) or a Development Agreement or some similar document or a combination of several. Most landlords will throw in a statement in the lease that says something like “Notwithstanding any provision in this lease, the tenant agrees to comply with the REA that is recorded in land records for the county……”  Well, even if you have very carefully negotiated all of your lease provisions this could pose a problem if a provision in the REA contradicts the lease. Always ask for the landlord to give you a copy of every recorded document that you will be obligated to comply with, list them in the lease and ask the landlord to be the one to ensure you are in compliance by changing the language above to something like this:  “Landlord hereby represents and warrants that the terms of this Lease do not conflict with any REA, OEA or other agreement or document affecting the property and Tenant shall at all times be permitted to operate the Permitted Use as provided herein.”

Commercial leases contain many other provisions, including but not limited to, provisions dealing with common areas, holdover, damage and casualty, condemnation, mandatory arbitration, choice of law provisions and others. I have touched on the ones that in my experience can cause the most operational issues for photographers. Every provision in a commercial lease has a legal meaning and legal and financial consequences. Otherwise it would not be in the document. The old saying “it’s not a problem until it’s a problem” is so true when it comes to commercial leases. For example, you may completely ignore the condemnation provisions thinking “oh that’s never going to happen,” and then 13 months into your lease when your business is booming, the county decides to condemn your building to widen a road. I know, I know, I’m all doom and gloom. But I spent three years in law school and 17 years in the practice of law learning how to prepare for the worst so that I can best protect my clients.

* And here is the best advice this long article contains:  ignore everything above and hire a lawyer to handle your lease negotiations for you. Spending a little money now will save you a huge headache a lot of money later!


Kirsten Kowalski has practiced commercial leasing law for over 17 years.




Insuring Your Photography Business – What You Need to Know

I read a post by a photographer recently that asked if her homeowner’s insurance would cover her photography equipment or if she needed additional insurance.  This got me thinking about how little people understand the insurance industry and I got nervous.  As a lawyer who deals with insurance companies all of the time, I know how hard it is sometimes to make a claim even when you do have the correct coverage.  But if you don’t even have the right coverage, you won’t have anyone on your side, you won’t be in good hands, you won’t have a sophisticated gecko or friendly duck to turn to when that mayhem guy comes a-calling.  And, I can tell you that if you are relying on your homeowner’s insurance to cover your business you don’t have the right coverage.

When looking at insurance options for your photography business, it is important to first analyze your business in terms of what you shoot and what your risks are so that you can choose what types of coverage you need and how much coverage you need. Only then can you shop around for the best quotes. Things you need to consider are:

1. What type of photography do I do?  Are you a portrait photographer working with individual clients?  Do you shoot weddings that cannot be re-created?  Are you a commercial photographer shooting for corporate clients?  Or are you a landscape photographer working for yourself selling fine art prints?

It is important to break down what you do and how you do it so that you can better evaluate your risks and potential liability. For example, if you are a general portrait photographer working with one client at a time at portrait sessions, your risk of loss and liability is probably a lot less than the wedding photographer who is shooting a unique event with large amounts of people. And that wedding photographer’s liability may be a lot less than the commercial photographer who was hired to do a commercial shoot with a $50,000 budget, models, makeup artists, expensive props, etc. How big your risk of loss is will help you determine how much coverage you need. Also, how “big” your business is will help you determine what you can afford. It is very important that you weigh your risks with your financial situation so that you can best determine how much coverage is right for your business.

2. What equipment do I use in my photography business and what is the cost to replace it?  Do you own one mid-priced DSLR with three lenses?  Do you own lighting equipment, computers, tablets?  What about a $20,000 Hasselblad? The value of your equipment is very important in determining how much insurance coverage you need.

3. Do I shoot on location or do I have a studio? Do I rent a studio? Do I own a studio?  Do I have furniture and fittings that need to be insured?  If you shoot on location, keep in mind that several venues (including churches and reception halls) will require that you provide a certificate of liability insurance before they allow you to step foot on the premises.  If you own a studio or have furniture or other property you use in your business, you will want to consider property damage insurance.  If you rent, you will want to look into renter’s insurance.

4.  If something were to happen, how much can I afford to cover myself before I look to insurance?   This is important because it will help you determine what kind of deductible is right for you.  The higher your deductible (i.e, the more you will be responsible for paying before insurance kicks in), the lower your premiums will be and vice versa.

 5. Do I have employees?

6. Do I need to still have an income if I am sick or injured and cannot work?

Once you have answered the above questions about your business, you can determine what types of coverage is right for you and in what amounts.  The insurance coverages I recommend that professional photographers consider are:

1. Errors and Omissions (also known as Professional Liability)

2. Fire and Casualty and other property insurance

3. Equipment Insurance

4. Commercial General Liability

5. Automobile Liability

6. Worker’s Compensation

YIKES! That is A LOT of insurance, right? It is. And it may be that some of it is not appropriate for your business. You may be able to get by with only a couple of these.

So, why so many and what do they cover?  


Errors and Omissions insurance is what will protect you if — no, WHEN — you make a mistake or a client perceives you as having made an error. It WILL happen, eventually. How many times have you shown up for a session and realized you forgot to charge your battery? Or you forgot your memory cards? Or you simply forgot the session altogether? Okay, maybe I’m the only one who can be so scatterbrained that all those things have happened to me. But, what about a situation where your memory card is corrupt and you don’t know until after the session? What if your computer crashes and you lose all of your files before you have a chance to make a backup? All of these nightmarish situations are very common and very real. And, if you have a client who is not the understanding type, or if you photographed a wedding that cannot be re-created, you may be facing some legal troubles. Errors & Omissions Insurance will cover you in such situations.

This insurance will also typically cover you for losses arising from copyright infringement, claims of false advertising, invasion of privacy claims, etc. But be sure to read the policy carefully as many will exclude intentional acts and fraud.


Obviously, this insurance covers your equipment — your camera, your lenses, your computers, your iPads, your strobes, your beauty dishes and all that other equipment you purchased at the last WPPI Trade Show when you were convinced that you needed everything on the showroom floor to run your senior portrait studio (or maybe that was just me again?).  We all know how expensive our gear is.  Can you afford to replace your $5,000 DSLR if you drop it in the lake during an engagement session in a canoe?  Can you afford to replace your $20,000 worth of lighting equipment when it is stolen out of your commercial studio or your $30,000 Hassleblad?  Chances are, you cannot.

Make a list of what you have, how much it would cost to replace and then INSURE IT!  Pay attention to those deductibles though.  You don’t want to be surprised when your new DSLR is stolen to learn that your deductible is $5,000.


This is a biggie and is so important that if you do not have a CGL policy, you need to put your camera away and not take one more photograph until you have secured one.   A CGL policy is going to give you protection in the event you cause damage or injury to persons or property, including medical costs.  It will cover your attorney’s fees and court costs if you are sued.   This is the insurance that will not only save your business but could also save your home, your savings and your livelihood.

“Wow, what a drama queen!” you may be saying.  Well, let’s see about that:   so, there you are photographing your first wedding.  It’s just you and your assistant.  You are Jane Doe Photography, sole proprietor.  You set up your light stand in the reception hall in a location where it is sure to light up the dance floor.  It’s sort of in the way but it has a huge soft box attached to it and you are confident that “nobody can miss it.”  That confidence is shattered when Uncle Bob, who has had one too many glasses of champagne, line dances right into your light stand, knocking himself to the floor and your lights land on your head, knocking him out cold.  When he comes to, he seems pretty jovial and insists that he is fine and you leave the wedding feeling pretty sure that disaster was averted.  What you don’t know is that the 1-800-SHEISTER, the local TV lawyer was a guest at the wedding and cornered Uncle Bob after the reception and convinced him that he not only has permanent head injuries, he is has unbearable pain and suffering and severe emotional distress.  And, he let Uncle Bob know that you just inherited some money from your parents which allowed you to quit that dull accounting career and start your own photography business that has been your dream for years.  CHA CHING.  

Stop reading and buy a general liability insurance policy.  Now.  I suggest a minimum limit of $1 Million to $2 Million with a deductible that you can handle. On a side note, being incorporated will help save your family inheritance in this situation but you still need the insurance to save your business. (For more information on why you should incorporate, see my article at (http://www.legalphotopro.com/2013/03/08/protection-from-swinging-violinists-and-other-dangers-incorporating-your-photography-business/)


 If you own or rent a studio or if you rent equipment or have furniture, fittings and other property that needs to be insured against loss or damage, insurance covering losses caused by fire or other casualty may be appropriate.  If you lease your studio space, check your lease to see who is required to keep the building insured.  While that is normally a Landlord’s obligation, your responsibility in this regard will be governed by the terms of your lease.  Also, if you rent equipment regularly, it is essential that you have insurance covering loss or damage to the equipment.


If you use a car for your business be sure that your personal car insurance will cover business use of your vehicle.  If you use multiple cars, a commercial automobile policy might be appropriate.  Also, if you have an employee who drives his or her own car for business purposes or if you rent cars when traveling for business, you should look into a Hired/Non-Owned Automobile Liability policy.


If you have employees, you will need to comply with your state law regarding worker’s compensation insurance.   Each state has its own rules and requirements on this so be sure you check your state’s laws.  Most states have a Board of Worker’s Compensation website where you can get the information you need.


 If you work for yourself, it is tempting to forgo health and disability insurance and the costs associated with the same.  However, your health is vitally important to the successful operation of your business.   If you cannot work, you cannot earn an income.  If you suffer a serious injury and must be off of work for a long period of time, who will pay your bills?  (no, that duck won’t actually pay – but the company he works for, or another insurance company of your choice, will IF you buy one of their policies).

So, where do you find the insurance you need and how much is it going to cost you?  First, if you are a member of the Professional Photographers of America, you have some equipment coverage there.  However, understand that there is a deductible that comes with that and also some limits with which you should be familiar.  You can also opt in to the PPA’s indemnity insurance (which is similar to the Errors and Omissions policy described above).  I personally had to look to that coverage this year when an external hard drive failed.  They paid to have my drive shipped to Drive Savers.   Beyond that initial layer of coverage for PPA members, you will need to shop around.  I called my local insurance agent friend who did the shopping for me and found me a policy of equipment coverage, CGL coverage with high limits and property insurance covering my studio for a decent amount (I pay a little less than $500 per year for my protection).  What I have may not be right for all of you.  Most companies will give you a quote online.  Google “best insurance for photographers”, ask other pros who they use and start shopping!

The thing about insurance is that you won’t be glad you have it until you are thanking your lucky stars that you have it!


Copy Cats – Innocent Inspiration or Illegal Infringement? A Look at “Substantial Similarity”

Recently, popular fashion photographer and teacher, Lindsay Adler, posted on Facebook asking fans if another photographer who had published a fashion photo similar to one Adler had previously published had been “inspired” by Adler’s original image or if that other photographer had blatantly copied Adler.  The image in question depicted a close crop of a female model’s face with pale skin, blue eyes, pink makeup, blonde eyelashes and large pink flowers covering half of her face with other flowers framing her head.  The link to the Facebook post is here: https://www.facebook.com/photo.php?fbid=10153075129130344&set=a.10150391059595344.619461.277487930343&type=1&theater

The image is almost identical to an image Adler had published.

Normally, I would have scrolled right past the post as this issue is rehashed again and again by photographers on Facebook.  But when I saw the images at issue, I was quite shocked at how similar they were and became curious as to how Adler handled it and how her fans reacted.  I was quite surprised to see the lack of support for Adler in the comments following her post.   Many photographers chastised her as petty for worrying about the copying.  Others told her to be happy that someone copied her, calling what I saw as blatant plagiarism “flattery.”   These comments troubled me.  But most troubling were the comments that contained incorrect information about what is protected by copyright laws and what constitutes infringement.  And since my job is to help people understand these issues, well, I figured it was finally time to blog again (yes, it has been a while).

Is Copying Another Photographer’s Image Illegal?

When someone copies an original work of another, the risk of copyright infringement is high.  But copying does not always constitute illegal infringement.  Courts encourage inspiration – after all, not much is original in our high tech world centered on “share and share alike.”  So when does “inspiration” cross the line into plagiarism and unlawful infringement of copyrights?  Well, the law says that infringement exists when the copying of an original work is sufficiently extensive that the original work and the copying work are “substantially similar.”  OH, OKAAAAYYYYYY.  Got it?  Yeah, me either.

Once again, as is the case with every situation involving copyright issues, we have pretty vague language to go by and a fact-intensive analysis to conduct.

How Do You Determine “Substantial Similarity”?

         1.         What is protected?  Expression vs. Facts

To start, when a court is asked to determine whether a work copies another to the extent of it being illegal, the court has to determine what is actually protected.  Copyright laws protect an artist’s expression of ideas, emotions, thoughts and feelings.  Copyright laws do not protect facts or things that are not unique to the artist.  So, the first thing one needs to ask is “What are the protected original, expressive elements of the work and what are the non-protected factual elements?”   In other words, what in Adler’s image makes her work unique to her?  Obviously the fact that she photographed a woman is not an expressive element.  The fact that the subject is a woman is more factual.  Likewise, that flowers are in the image is likely not an expression of an idea in itself.  As many of her fans pointed out, photographing a headshot of a woman with flowers has been done.  However, what about the placement of those flowers over one eye and framing the head and chin?  Is that unique?  What about the color of the flowers and the fact that they match the model’s makeup?  What about the specific lighting the photographer chose?  The composition and crop?  The pose and expression of the model?  Those are exactly the types of elements that express the photographer’s creativity and thoughts and that convey a message to the viewer.  These are not “facts” based in reality.  These are elements specifically created by the artist intended to evoke emotion and interest.  As such, these are all elements that a court would likely deem original to the creator and thus protectable.

         2.         How much of the protected elements were copied and how important to the overall work are those elements?

The second question to ask is “Did the copying work substantially appropriate the protected elements of the original work?”  This is a factual determination and thus would be a question for the jury.  To determine the answer, the jury would need to determine how many “original” elements were copied and to what extent.   With respect to Adler’s image, the composition in both was a close crop of the face, taken straight on with a pink background.  The lighting was the same – all the way down the catch lights in the eyes.  Both artists chose models with pale skin, blue eyes and blonde brows and lashes.  Both used makeup in shades of pink only.  Both artists placed exactly three large pink flowers in identical positions on the model’s face.  Both artists instructed the model to stare, unsmiling into the camera.  Frankly, there really wasn’t anything different about the images except that the models were different people.  These images conveyed the exact same ideas and evoke the same emotion and response from the viewer.  In my opinion, this is exactly the type of copying against which copyright laws are intended to protect.

BUT, what if the other photographer put flowers on a model’s face but the flowers were purple and the angle of the photo was different and the lighting was different?  What if the model was laughing and looking off camera?  Would any of those changes affect the overall emotion and “story” of the image?  If so, a jury may not find that the protected elements were copied sufficiently to render the image “substantially similar” and thus no infringement.  The determination would be made by weighing the number of elements copied and determining their importance of the role each element plays in the final image.  In some cases, that might be a pretty tough job for the jury.  In this case, I’m pretty sure the jury would be home in time for lunch.


Now, I realize that Ms. Adler is pretty famous in the photography community and that she makes a lot of money holding workshops, appearing on CreativeLive and other venues teaching her skills and sharing her vision with a worldwide audience.  Many of those commenting on her post felt that this somehow justified the copying or at least stripped her of her right to complain.  That issue is interesting and should be discussed.  Let me just ask this:  If the prevailing view is that working photographers who also teach are somehow removed from the protection of both laws and the rules of decency, are we discouraging working talent (those who actually make a living as photographers) from sharing their visions and knowledge?

Just sayin’…

My Ex Employee May Not Compete With Me. Wait, Right? – The Law on Noncompete Agreements




So you want to hire an assistant for your photography business. You have perfected your art so that you are busy enough to need some help.

You have decided that it is time to hire an assistant. And, you don’t want someone to just carry your gear and hold a reflector. You need a photographer you can rely on to actually shoot for you if you get sick, or photograph the more simple sessions for you so can book more clients.

But you know how competitive this industry is and you are worried about creating your own competition.  After all, you are going to need to teach this person how you shoot, how to light the session and how to edit like you do so that you can remain true to your successful style. You want to ensure that this person won’t take this education (that you are paying HER for, by the way) and go work for the other big studio in town or open her own shop down the street.

So, you find a form employment contract on the internet that has some firm non-compete language  – something that says in two paragraphs of legal jargon,  “You will never ever compete with me. Like, ever.”

But are you really protected?


A typical non-compete agreement is designed to prevent employees from working for a direct competitor (including themselves) and/or to prevent the employee from disclosing confidential information and trade secrets. However, because public policy and the legal system places heavy emphasis on a person’s right to make a living, courts require these agreements to be limited in scope and duration so that they may be deemed “reasonable.” Courts do not want the person subject to the non-compete agreement to be subject to any undue hardship while seeking employment. As such, courts that have upheld non-compete agreements look at several factors, including:

1.            Legitimate Business Purpose. The restriction must address a real concern. Simply not wanting someone to compete with you is likely not, by itself, going to be a legitimate business purpose. However, needing to protect customer information, pricing or secrets as to your process may be.

2.            Consideration to the Employee. Did you give your employee a benefit in exchange for her agreement not to compete? If the employee is a new hire, simply giving her the job in exchange for signing the agreement may be enough.  However, if she is an existing employee, you may need to provide a new benefit such as a bonus or a raise.

3.            Length of Restriction on Competition.  How long is the restriction to apply? A non-compete that states that the employee may never compete will likely be thrown out whereas one that limits competition for a year or two might be upheld.

4.            Geographical Area Restricted.  If you are a photographer located in Phoenix, is it reasonable to restrict the employee from working for a competitor anywhere in Arizona? What about in a suburb 20 miles away? This factor is highly dependent on the type of business and what your actual business needs require.

5.            The Type of Business to which the Restriction Applies.  If your studio is a portrait studio specializing in general portrait work (families, kids, high school seniors, etc), it is likely unreasonable to restrict the employee from other types of photography.

6.            Public Policy. Is the restriction going to offend public policy?  Will the public, in general, be worse off if the agreement is upheld? If you are a photojournalist, public policy may demand voiding a restriction on other photojournalism work as the public has an interest in the news. Does the restriction offend a basic right, such as a person’s ability to choose her own profession?  Researching your state’s caselaw can help you determine what your jurisdiction looks for in terms of protecting public policy.

And this is where I tell you the same thing I tell you in almost every article I write about the law:  There is no black and white answer as to whether you noncompete agreement will be upheld. Courts will weigh the above factors in light of the specific facts and circumstances surrounding your situation and will make a determination based on such analysis.

However, it is probably safe to say that the more narrowly drafted your noncompete is and the more tightly tailored it is to your specific situation, the more likely it will be upheld.


Yes, as with all laws that are governed by the states, laws differ. And on this particular issue, some states flat out say “no-go.”  For example, California law specifically states that noncompete agreements are void, with two small exceptions.   California even goes so far as to impose liability and hefty fines on the employer if the employer makes the employee sign a noncompete, citing such actions as unfair business practice. Yikes!  Good thing you didn’t use that form you got off the internet, huh?

Bottom line with noncompetes is that you need to think through them carefully.  And consult an attorney with knowledge of the law in your area!  Oh, and maybe don’t teach that new assistant EVERYTHING you know!

For specific questions on noncompete agreements or other contracts, please email Legal Photo Pro at info@legalphotopro.com or contact Kirsten Kowalski directly at 678.386.4751


Why I Don’t Sell Templates

I have had a lot of photographers contact me over the past few weeks and ask me if I have form templates for use.  I do not sell templates.  The reason I do not is pretty simple – I prefer my readers to have a document that is drafted to fit their unique needs, for their specific situations, in their own state.

You see, I have been practicing law for sixteen years  and I have served as in-house counsel for two corporate clients.  These companies had several departments and many, many employees doing several deals per day.  I was asked to draft “standard form” documents regularly.  Invariably, however, I found that if a non-lawyer employee took one of my forms and attempted to modify it to fit his or her specific deal, something went wrong.  They would change a word here, delete a sentence there or sometimes alter entire paragraphs.  These changes often altered the legal interpretation of the document in ways that were harmful to the company’s position without the drafter realizing it.   Even a simple change like deleting the word “reasonable” or adding the word “gross” to a document can have significant legal consequences.  Unless you have studied law, the average person may not realize that everyday words may carry significant legal weight.  I have had to litigate the drafting mistakes non-lawyers have made using forms I have created.  (And shortly thereafter, memos were sent to each department with new policies prohibiting changes to legal forms without my review.  Yes, I have been labeled a “control freak!”).

As a professional photographer, I don’t sell my RAW images for the client to process themselves.  Instead, I make sure my images are perfect before they go to the client and my clients pay me for my talent and service.

Likewise, as a lawyer, I don’t sell templates for my clients to figure out on their own.    Rather, I offer my expertise and knowledge to draft a document that fits my client’s specific situation and affords my client as much protection as possible.

Now, it is important to know that I am not against forms and templates or those that do sell them.  I create my own forms every day.  They help streamline my work and give me a starting point.  I don’t want to recreate the wheel every time a client needs a contract.  And for some situations, a template from sites like LegalZoom or any other provider may be perfectly appropriate and can be filled out rather easily.    But, it is important to remember that, in most situations, these templates are, as I stated, simply a starting point.  More often than not the templates will need to be modified.  In those situations, it is always advisable to have your lawyer read over your document prior to using it.  Most lawyers won’t charge too much for a simple review.  Of course, if changes are necessary you may have to pay a little more, but in the long run you will have saved yourself a lot of money and hassle caused by using an improperly drafted document.

Be Smart.  Be Professional.  Be Legal.



Protection From Swinging Violinists and Other Dangers – Incorporating Your Photography Business

As I pointed my camera upwards to photograph a man swinging upside down from a tree 20 feet in the air while playing a violin, my thoughts were first “wow, this is different than boudoir” and second “what is my liability if he falls?”

That session, which was supposed to be a simple portrait session to obtain promotional photos for a violin shop (I was thinking artistic shots of musicians with their instruments) quickly turned into something that I had not expected – something dangerous and risky to me and my business. I was unexpectedly thrust into a position of having to make a split second decision to either accept the risk and proceed or stop the session and waste everyone’s time and potentially ruin my reputation with the client.

I immediately went through my mental checklist: Insurance? Check! Corporate layer of protection? Check! Contract with the client whereby the client and model waive the right to sue me for injury? Um, no. This was a simple portrait session – or so I thought.  While it would have been ideal to have all three, I was comfortable enough with the first two and we moved forward with the session.

What do you mean “corporate layer of protection?”

By this, I mean that my business is a limited liability company or LLC. This means exactly what it says – that my liability is limited.   A limited liability company is a business structure allowed by state statute that provides a “veil” of protection for its members. This means that creditors may only look to the assets of the LLC in the event of liability. In other words, if the hanging violin guy had fallen and was injured and decided to sue, his relief would be limited to the assets of my photography business and he would not be able to come after me personally. As such, my home, my personal bank accounts and my family’s net worth are not at risk.

Wait, someone can take my HOME?

 If you are operating as a sole proprietor – which basically means you started a business and did not file any formal corporate papers with your secretary of state designating your business as either an LLC or a corporation – you are putting your personal assets at risk.   When you operate this way, you are personally responsible for the actions of your business. If a person is injured or property is damaged or any other liability arises and you are sued, the person suing can come after you, your home, your cars, your savings accounts and anything else you and your family own and enjoy.  EEK!   If you think that photography is a low-risk enterprise, consider the above scenario or the unfortunate wedding photographer whose client was swept away in a river current during a photography session and drowned.  So sad and very scary.

Well, I have a DBA so I’m good.

A DBA or, “doing business as” is not a legal entity and therefore offers absolutely no protection by itself. For example, if you call your business “Bodacious Boudoir Photography” but you have not filed any corporate paperwork registering this business as a limited liability company or a corporation, it is still just YOU operating as Bodacious Boudoir Photography. Creditors will come knocking at your door ready to haul away your furniture (yes, that waterbed is in jeopardy – come on, with a name like Bodacious Boudoir you know you have one) in the event of a judgment against you.

 But I have insurance so I don’t need to incorporate.

Insurance is an absolute necessity. However, you may not be as covered as you think.

Consider the foregoing scenario. If the swinging violinist (that is just fun to say) had fallen from that tree, he would have crashed to the ground head first. He may have broken his neck. What do you think a jury verdict could be in a scenario like that? My liability coverage has a $1 Million limit. There is a very good chance that a jury verdict in a situation like that could be significantly higher than $1 Million, plus attorney’s fees and court costs.   Guess where the extra would come from? Visions of a judgment sale of your home and liquidation of all of your assets, including your kids’ college funds should now be  bubbling up in your throat.

Further, if you have ever had to make a claim on insurance, you know how difficult insurance companies can be. It is likely that your policy has page after page of exemptions from coverage, including instances where you were “grossly negligent” or committed an intentional act. Unless you know exactly what those exemptions are and only operate within your actual coverage, you may not even have a claim on insurance at all.

 Okay, okay, you have convinced me, NOW WHAT?

Once you have made the decision to incorporate, you need to choose which entity is right for you. You can create a limited liability company like I did or you can elect to create a corporation or perhaps a limited liability partnership. The Small Business Association has some great information on its website educating you as to the benefits and advantages of both.  (see http://www.sba.gov/community/blogs/community-blogs/business-law-advisor/should-my-company-be-llc-s-corp-or-both).  Also, visit the website for your state’s Secretary of State. Usually those sites have a great question and answer section that can provide excellent information. Further, talk with your accountant about tax implications and consult an attorney if you have any questions after reading about the differences in these entities.

 Is it difficult and/or expensive to create a business entity?

No. It is actually relatively easy. I created my own LLC in about an hour. I filled out the form and filed it online and paid a small fee to register. Corporations are a bit more involved but considering the protection afforded, you cannot afford NOT to file. Your Secretary of State’s office can provide you all the necessary forms and information on costs involved.

 So just filing will protect me and all my stuff?

Well, no. You will need to actually operate as a business entity. This means following all of the corporate formalities such as separate bank accounts, making necessary filings each year, paying taxes and basically ensuring that the general public knows that you are a business entity and not a sole proprietor. Be aware that there is a legal mechanism by which plaintiffs can get around the corporation and hold you personally liable.  It is called “piercing the corporate veil.”  And it means just what it’s graphic name implies – a plaintiff can poke a hole in your layer of protection and reach you personally if you are careless.  However, piercing the corporate veil is extremely difficult, courts do not look kindly on it in most situations and so long as you observe your corporate formalities you will be protected.

So, I clicked away at the swinging violinist with the comfort and confidence that I was protected.  Of course, I was still worried for his personal safety but he seemed to know what he was doing and was enjoying himself.  (Just so you know, he is a professional and very experienced in repelling).  And I can promise you, no other violin shop is going to have photos like these for their marketing purposes!

[For further information on any of the foregoing or for assistance in getting YOUR business incorporated, feel free to contact Legal Photo Pro at Kirsten@legalphotopro.com]


The Myth of the Non-Refundable Deposit – Law for Photographers

As I pace around my studio, I raise my Alien Bee an inch. I smooth the grey backdrop for the hundredth time. I pluck a stray fiber from my antique settee and I look at my watch: 2:20 pm.

My boudoir client is 20 minutes late. I have called her. I’ve texted. I’ve emailed and finally even resorted to sending a Facebook message. No response.

It is Saturday. My husband skipped his soccer game to stay with the kids. My schedule is clear for the next three hours. I got here early to set up. I cleaned, spruced, stressed and got excited.

My hair and makeup artist is standing in the corner tapping her foot and texting her boyfriend about how bored she is. I look at her and shrug an apology.

At 2:45, I give up and let my makeup artist go (with full payment for her time of course).

 I can keep her non-refundable deposit, right?

My client paid me $400 as a deposit, which I plan to keep as forfeited money. I look at my client contract to be sure I covered this. Here is what it says:

“Deposit. Client shall pay Photographer an amount equal to $400 as a non-refundable deposit. Such amount shall be applied toward the purchase of a boudoir package.”

Okay, so I clearly said “non-refundable.” I should be good to go, right? I’m feeling a little insecure about the contract’s lack of specificity, so I do some legal research. What I find makes me nervous.

 Payment for a service is not earned until the service is performed

It seems that courts deciding whether deposits are refundable have found that payments intended to cover advance fees paid for the performance of a service are not actually “earned” until the service is performed.

In other words, even if you take a retainer, the money is not yours until you do the work.

Uh oh. My contract says that the $400 is to be applied toward a package, which includes processing the images and preparing an album—none of which I have done and won’t be doing. But it also says the deposit is non-refundable. So now what?

 “Deposit”, “Retainer”, “Hush Money”,  … does language make a difference?

If my contract language is not crystal clear on how the deposit or retainer will be used (whatever it may be called), that payment can be categorized as a payment for future services, according to most courts.

And in some jurisdictions, the word “deposit” alone may mandate a refund without clear language to the contrary.  That means the payment would be refundable by law, regardless of how many times the contract says “non-refundable” or “forfeited” or any other too-bad-so-sad adjective I put in front of “deposit.”

But courts have also clarified what a “true retainer” is in the case of a photographer-client contract.  If the payment is made to compensate the photographer (you) for loss of income suffered by reserving the session date for a particular client, that’s a true retainer. You can keep the money if the client doesn’t show.

A true retainer compensates you for the money you lose by not booking someone else on a particular session date. A deposit, unless clarified in your contract, is advance payment for your services, which you’ll probably need to refund if she no-shows.

Bottom line: My contract must clearly state whether it’s an advance payment or payment to compensate for lost income, or it is open for interpretation.

3 ways to make your intentions clear

So, how do we make it clear? What can we do to be sure that we are compensated for the time spent waiting for a client who never shows?

  1. Be sure you have a written contract with the client.
  2. Clearly state how much money, paid in advance, is to be treated as non-refundable, and then state what the money compensates you for.
  3. Include a “liquidated damage” clause.

 “A what clause? Liquid huh?”

You can include in your contract a reasonable amount of money you are to be compensated—an amount that may be difficult to figure out–if your client breaks the contract. These are called “liquidated damages.”

Now, you can’t use this to punish your client (courts have found such penalty clauses to be unenforceable), and you can’t be unreasonable when determining the amount of liquidated damages. For example:

In the scenario above, I may have been counting on a $2500 portrait sale of his-and-hers album with large wall art for his man cave, but if I try to claim $2500 as liquidated damages I’m probably being unreasonable.

On the other hand, if you are a wedding photographer and the canceled event is a June wedding, you can’t exactly just book another one. Higher liquidated damages may be reasonable in this case.

Want an example for your contract? Here you go. (*required cautionary language: please consult your own attorney in your own state to be sure this language works in your jurisdiction)

“Ugh,” I think to myself as I look at the contract before me. “I should have consulted myself before using this form.”

I give myself a little dope-slap and then, instead of spending the next hour photographing a gorgeous woman bathed in beautiful light on carefully designed sets, I sit at my computer and redraft my contract. And my new clause goes something like this:

“To reserve the Session Date and to reserve the stylist, Client shall pay to Photographer, upon execution of this Agreement, a non-refundable reservation fee in the amount of $400.00. Client understands and agrees that Photographer will not book other sessions during this time. In the event that Client cancels the portrait session or fails to attend the session on the Session Date, for any reason, Photographer shall suffer losses that are difficult to ascertain. As such, Client agrees that, in the event of cancellation by Client, such $400 shall be forfeited by Client and paid to Photographer as liquidated damages and not as a penalty. Client and Photographer agree that such amount is reasonable.”

 And with that, I went home to enjoy the rest of my weekend.

(So, you all understand that this is hypothetical, right? If this really happened I would be frantic about whether my client was all right. And I most certainly would never slap myself.) 🙂 

NOTE: Whether you want to make exceptions for illness, inclement weather, unforeseen circumstances or even allow one rescheduling without loss of the reservation fee is up to you. Just be sure to draft your language clearly.


Legal Photo Pro is available to help customize your contracts to fit your specific needs. Just give me a call or send me an email to get more information on my reasonable rates and to get started!


Photographer v. Photographer – Copyright Infringement From Within

Every day on Facebook I see photographers complaining about their copyrights being infringed upon by other photographers. Yes, by other photographers.

“Wha????” you might gasp, shocked. “Why would a photographer infringe on another photographer’s copyrights when copyrights are so vital to the success of photographers?”  I know, right? You would think that, much like the “guy/girl code” or “best friend’s creed”, there are things that photogs just DON’T do to each other:

  •     You DON’T date your best friend’s ex.
  •     You DON’T wear the same dress as your friend to the big party.
  •     You DON’T use another photographer’s images without permission.

In some cases, the images have been altered and even cropped to remove watermarks.  EGADS!

Please know that if you are one of these photographers committing  such infringement, you are taking a very serious risk. Do you understand how Copyright laws work?

  • Do you believe that anything that is posted on the internet is free to use and therefore comes within the protection of “Fair Use?”
  • Maybe you have heard that the copyright owner has to provide you a takedown notice before suing and so long as you take the image down you are safe.
  • Or,  perhaps you know what you are doing is wrong and that you could be sued but you have read that copyrights are difficult to enforce and damages are difficult to prove or that the cost of litigation is too high to justify someone suing you.

I have actually heard all of this  from other photographers. Well, let me assure you that these theories are either just flat out incorrect or riskier than you think. Especially if you hold yourself out as a professional photographer (more on this later).

Here is what you are entitled to if your copyrights have been infringed upon:

17 U.S.C § 504 provides the following remedies for copyright owners who have suffered infringement:

  1. Actual Damages – the damages that you actually suffer as a result of the infringement. In other words, what did you lose as a result of the infringement? Did you lose a sale? Did you miss out on license fees? Did it cost you other clients? Actual damages can be tough because you may not have any. Just because someone else posted your photo doesn’t mean that you suffered an economic loss, no matter how illegal the use was. Even if you do have some actual damages, proving them can be difficult.
  2. Profits that the infringer received – did the infringer receive a profit from its use of your image?  If so, you may get an award equal to the profit.  But, many times the infringer doesn’t receive any profit from its use.  Rather, the images are simply posted on a website or uploaded to social media. Proving that the use of your image resulted in profits to the infringer may be very difficult.
  3. Statutory Damages – damages allowed per the statute. These damages are awesome because they give the owner the right to elect not to have to prove actual damages and profits and instead choose to recover an amount anywhere from $750 to $30,000 for each work infringed.

The great thing about the statutory damages is if the court decides that the infringement was committed willfully, the court may increase the award to up to $150,000.00!  WOOT WOOT!  Cha-CHING!  Don’t go messing with my images, right?  Right!  BUT, keep in mind that statutory damages are only available to owners who have registered the image with the copyright office (note to self:  register EVERYTHING that I post online.  And by “self”, I mean YOU).

The weird thing about statutory damages, however, is that there is an “out” for “innocent” infringers. Basically, if the infringer can prove that it had a good faith belief that its use of the image was lawful, the court could reduce the damages to as low as $200.

You are now asking:  “But Kirsten, you know everyone is just going to whine:  ‘Oh gee whiz Your Honor, I didn’t know.  I mean, isn’t the whole point of the internet and social media to share?  I was just doing what social media wants me to do.’  So how do I show that it was willful?”

Well, first of all you don’t have to.  The burden is on the infringer to prove it was NOT willful.  Also, while that argument might (and that’s a big “might”) work for a 13 year old IG hipster whose frontal lobe isn’t yet fully developed or maybe even for the innocent guy using Pinterest who just wanted to share some ideas for decorating his man cave (hey, it could happen), it is not going to work for someone who holds herself out as a photographer. I would argue that as a professional photographer, that person should have known, even had a duty to know, that what she did is wrong.

Further, under the statute, if the image contained a watermark with notice of copyright, the court won’t even allow the infringer to claim that the use of the image was innocent.

So, listen up you infringers:   Crop off the watermark, cut off your defense!

How to be sure you get those statutory damages:

  1. Use a watermark with notice of copyright. Yeah, yeah, your image is just too spectacular to be degraded with a watermark, right? Come on. If your image is really that breathtaking, people will see past the watermark.  As a watermark can mean the difference between $200 and $150,000 can you really afford not to use one?
  2. Register those images.  As stated above, registration is a prerequisite to statutory damages and it’s those statutory damages that can make the difference between recovering something and recovering nothing.  Registration can be done online at this link:   http://www.copyright.gov/eco and it is only $35 to register an unlimited number of images.

For all you “photographer”- infringers out there, do the right thing and remove the infringing material ASAP.    Then, educate yourself on your profession, respect your fellow photographers and yourself, and by all means, don’t ever wear the same dress others are wearing to the party. Again.

(I can’t believe this last paragraph even needs to be written).

*NOTICE.  The information in this article is for information and educational purposes only and does not constitute legal advice*