Best Business Practices for Photographers [192]
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Whew.
What Attorneys Can Do for You
Attorneys abound in every town, from the southern tip of the Florida Keys (albeit probably semi-retired attorneys) to the oil fields on the North Slope of Alaska, and probably wherever two roads intersect between those two points. Some are generalists, dealing with all sorts of law, but a photographer in business will usually need an attorney familiar with (or preferably specialized in) contract law, intellectual property, and copyright. Usually one attorney or a firm can handle all of these, provided they also don't do divorce, family law, or personal injury. Those attorneys usually don't handle the types of cases that a business will likely need. However, if you are irresponsible enough to not carry liability insurance for your business, you may need a personal injury attorney to defend you if someone gets hurt while on a shoot you are in charge of.
Contract Review and Negotiations
Almost all professional organizations make available to their members boilerplate contracts that are exponentially better than what almost any photographer could produce by staring at a blank word processing document. Yet, these boilerplate contracts are just starting points.
For example, many states have a requirement that a "liquidated damages" clause will be deemed invalid unless specifically agreed to in advance and/or initialed by the assigning (hiring) party. Other clauses in a contract may be inconsistent with state law and, as such, could create holes in the terms under which you and the client undertook and commissioned the work. You may provide to your attorney the boilerplate agreements and ask him or her to affirm that they are consistent with state laws and to make revisions where it is in your best interests to do so. This might also serve to reduce your costs for the review because the attorney is editing a document, rather than crafting one from scratch.
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NOTE
You might be most familiar with "liquidated damages" in reference to your credit card bill or mortgage, in the form of a late fee. In other words, the "liquidation" is the contractually agreed-to amount of damages that shall be paid, regardless of what the actual damages are. So, for example, if you and a bride agree to a liquidated damages amount not to exceed what you were paid to provide wedding photography, she cannot come back and sue you for the costs to re-create her wedding (from renting the venue, to tuxes, to flying guests back in, and so on) when you fail to deliver the photography services you were contracted to. But be careful—unless the groom also signed the contract, he is a separate entity from the bride until such time as they are married, and even then may still be deemed legally separate based upon the date of the contract. This means he could sue you outside of the limitations of the wedding contract unless he signed it as well.
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Further, you might find that, especially when negotiating with a client who wishes to engage your services under a retainer, having an attorney draft the agreement and negotiate legalese (leaving fees, expenses covered, and rights to you) may make for a better final document.
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NOTE
Whereas you might be more familiar with retainers when you are paying them, they can just as easily apply to your services. For example, if there is a local theater that needs photography of all its performers and images of their dress rehearsals for promotion of the plays, a retainer whereby you agree to provide a certain number of days of photography in exchange for a monthly payment by the theater might be optimal for both you and the theater.
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Lastly, where there is an infringement, it might be best for your attorney to be the one to write the letter or make the call to the soon-to-be-defendant's