Your Own Argument and Opinions

In conclusion, it was an interesting experience trying to figure out what questions to ask and contacting the lawyers. Although the specific lawyers that I found weren't of much help, they were still very kind and professional with me. This experience has taught me, that If I ever face any type of legal issues with my business or intellectual property, I will know exactly what type of lawyer I need to talk to and I won’t have to waste time trying to contact different kinds of lawyers.

"For much of history, land was the most valuable form of property. It was the primary source of wealth and social status. Today, intellectual property is a major source of wealth. New ideas—for manufacturing processes, computer programs, medicines, books—bring both affluence and influence." (Cengage Advantage Books: Introduction to Business Law, Page: 502)

Overall, I think the people who answered the questions on the internet did a decent job in summarizing the law but obviously, I do not recommend taking serious advice from the internet. I would recommend doing research on your own but in the end it’s best to actually get a lawyer and confirming your options with the lawyer before making any decisions. "Most people do not hire a lawyer to read form contracts. And without an experienced lawyer, it is highly unlikely that an individual would be aware of ambiguities." (Cengage Advantage Books: Introduction to Business Law, Page: 6)

For the most part, I agree with the rulings and the law when it comes to copyrights and intellectual property because it is fair and the law is there for a reason. I believe the reason is to protect artist and business owners like us. As long as we abide by the law, then we are in favor.

"Binding legal ideas often come from the courts. Judges generally follow precedent. When courts decide a case, they tend to apply the same legal rules that other courts have used in similar cases. The principle that precedent is binding on later cases is stare decisis, which means “let the decision stand.” Stare decisis makes the law predictable, and this in turn enables businesses and private citizens to plan intelligently." (Cengage Advantage Books: Introduction to Business Law, Page: 6)

"We depend upon the law to give us a stable nation and economy, a fair society, a safe place to live and work. But while law is a vital tool for crafting the society we want, there are no easy answers about how to create it. In a democracy, we all participate in the crafting. Legal rules control us, yet we create them. A working knowledge of the law can help build a successful career—and a solid democracy."(Cengage Advantage Books: Introduction to Business Law, Page: 12)

Rule of law

How can photographers protect themselves from being sued?

Best protection is to learn a little about copyright law in whatever country you are doing your work. In the US, for example, things that are predominately functional cannot be copyrighted. For example, the design of clothing. But if you have a model in a shirt with an Andy Warhol painting on the front, then that would be trouble.

When in doubt, get a signed property release, just like you hopefully already do for model releases.

Also, if you are self-employed, hopefully you already have comprehensive business liability insurance. This often covers copyright infringement.“Insurance is available for virtually any risk. Bruce Springsteen insured his voice and Jamie Lee Curtis her legs. When Kerry Wallace shaved her head to promote the Star Trek films, she bought insurance in case her hair failed to grow back. Food critic Egon Ronay insured his taste buds. And an amateur dramatics group took out insurance to protect against the risk that a member of the audience might die laughing. Most people, however, get by with six different types of insurance: property, life, health, disability, liability, and automobile.” (Cengage Advantage Books: Introduction to Business Law, Page: 579)


What steps should I take if my photo is used without permission?

First, politely request that the photo be (a) credited or (b) taken down. If it has been used in a commercial sense, you could also include an invoice for an amount you feel comfortable charging.

If that doesn’t work, then try a firmer reply, including an extract from the part of the terms and conditions that have been breached, and mention that you will be taking legal advice if they do not comply.

At this point, if you’ve still had no joy, you could do one of two things: contact a lawyer and ask them to send a letter on your behalf. "If you do hire a lawyer, be aware of certain warning signs. Although the lawyer's goal is to protect you, a good attorney should be a deal-maker, not a deal-breaker. She should help you do what you want and, therefore, should never (or, at least, hardly ever) say, “You cannot do this.” Instead, she should say, “Here are the risks to this approach” or “Here is another way to achieve your goal.” (Cengage Advantage Books: Introduction to Business Law, Page: 208)

Failing that, you would probably have to go to the small claims court, to claim for non-payment of your invoice

"Anyone who uses copyrighted material without permission is violating the Copyright Act. To prove a violation, the plaintiff must present evidence that the work was original and that either:

•The infringer actually copied the work; or

• The infringer had access to the original and the two works are substantially similar.

Damages can be substantial. In a recent case, a jury ordered SAP to pay Oracle $1.3 billion for copyright infringement of Oracle's software." (Cengage Advantage Books: Introduction to Business Law, Page: 507)

What are the legalities of accepting payments as a freelance photographer?

While it is possible to run a business as a sole proprietor (rather than creating a legal entity), I would recommend at the very least to get a separate checking account that she will use only for the business.“A sole proprietorship is an unincorporated business owned by one person. For example, Linda runs ExSciTe (which stands for Excellence in Science Teaching), a company that helps teachers prepare hands-on science experiments for the classroom.” (Cengage Advantage Books: Introduction to Business Law, Page: 373)

I would also recommend that your friend get a copy of quickbooks. She should produce invoices for her customers and bill them. The invoice should indicate the timeline for payment (net 30 days, upon receipt, 50% in advance, 50% upon delivery, etc.).

All cash flow (expenses and revenue) should go through the one bank account. This will make it easy for her to reconcile her taxable income and other needs at the end.

In terms of technology, check out Square. It has a low cost device that hooks to ipad / iphones that allows her to charge credit cards. This should be hooked to her bank account discussed above.

"The “method” refers to whether acceptance is done in person or by mail, telephone, email, or fax. The “manner” refers to whether the offeree accepts by promising, by making a down payment, by performing, and so forth. If an offer demands acceptance in a particular method or manner, the offeree must follow those requirements. An offer might specify that it be accepted in writing, or in person, or before midnight on June 23. An offeror can set any requirements she wishes. Omri might say to Oliver, “I'll sell you my bike for $200. You must accept my offer by standing on a chair in the lunchroom tomorrow and reciting a poem about a cow.” Oliver can only accept the offer in the exact manner specified if he wants to form a contract." (Cengage Advantage Books: Introduction to Business Law, Page: 156)


Is it legal to sell a photo of a hotel building or a sign of a public market?

1st best answer: To try and answer the question succinctly: yes it is legal to sell the photos, because you have copyright, but they may not be publishable depending on who buys them.

2nd best answer: Yes you can sell the photographs to whoever wants to buy them.

The problems are encountered when the images are used commercially in some design material or in an advertisement.

If an illustration of one of my photographs is made and used commercially or editorially, is it an infringement of my copyright?

Yes, if it is deemed to be a derivative work and the illustrator has copied your copyright-able elements."A work is copyrighted automatically once it is in tangible form. For example, when a songwriter puts notes on paper, the work is copyrighted without further ado. But if she whistles a happy tune without writing it down, the song is not copyrighted, and anyone else can use it without permission. Registration with the Copyright Office of the Library of Congress is necessary only if the holder wishes to bring suit to enforce the copyright. Although authors still routinely place the copyright symbol (©) on their works, such a precaution is not necessary in the United States. However, some lawyers still recommend using the copyright symbol because other countries recognize it. Also, the penalties for intentional copyright infringement are heavier than for unintentional violations, and the presence of a copyright notice is evidence that the infringer's actions were intentional." (Cengage Advantage Books: Introduction to Business Law, Page: 506)


How can I get permission to use copyrighted photography?

You may obtain a non-exclusive license from the copyright owner orally, but exclusive licenses must be in writing. It’s always best to put license agreements in writing, even if it’s only an email.


If you are shooting a movie/photo (non-profit or profit) with a willing person, should you get a contract signed from him/her?

1st best answer: Whenever possible you should get a model release (or a contract with a model release clause) from anyone who appears in your photos or video, this can save a lot of trouble in the future and has no downside.

2nd best answer: If you do not have a release (for property, too.) your images are unusable. You cannot display them in public. You cannot use them in your portfolio. You cannot use them.

"Contracts govern countless areas of our lives, from intimate family issues to multibillion dollar corporate deals. Understanding contract principles is essential for a successful business or a professional career and is invaluable in private life. Courts no longer rubber-stamp any agreement that two parties have made. If we know the issues that courts scrutinize, the agreement we draft is likelier to be enforced. We thus achieve greater control over our affairs—the very purpose of a contract." (Cengage Advantage Books: Introduction to Business Law, Page: 158)


Will electronic or digital model releases or contracts hold up in court?

For the most part, whether you're a business generating digital documents to be signed, or a consumer signing them with a mouse click, the answer is a definitive yes.

The U.S. government actually took the biggest step of resolving the legal issues of e-signatures back in 2000 with the ESIGN Act, which gave electronic signatures the same legal weight as handwritten ones. State law, for the most part, has followed suit in recognizing their validity.


What are the appropriate laws regarding taking candid or unsolicited shots of people in public places?

1st best answer: The gist is that with very few exceptions such as military installations you can photograph anyone and anything you see in public where people have no expectations of privacy. Images taken this way belong to you.

What you can do with these photos is quite restricted because the image in the photo belongs to someone else. Because of this you cannot use such images for most commercial purposes, including licensing such images, selling prints of it or making advertisement from them. You can use these images for editorial use. See the above link for what constitutes editorial use.

2nd best answer: You certainly can take those photos. It is your legal right. If they are out in public, there is no assumption of privacy.

However, you are limited in what you can do with those photos. You can not publish or sell them without a signed model release.


What are the most important issues to cover in a portrait photo contract?

· What's included in the price and what's not. Even if the session fee is waived, are the prints and/or images included? Or are they for extra purchase? If so, at what price

· How long you will retain the images for purchase/download/whatever. Will you hang onto the images for a year? more or less?

· Will photo editing (beyond basic cropping/color balance/basic touchups) be included or be at extra charge? For example, if a client wants you to remove an undesirable element from the background, etc.

· How many images the client can expect? I usually give a range.. for example, for an N minute session, you can expect x-y images.

· What kind of turnaround time clients can expect (do you turn over the photos in 24 hours, 1 week, 2 weeks, etc)

· If clients can buy/download digital images, what kind of rights do they have? You might want to specify personal use.


“A contract is merely a legally enforceable agreement. People regularly make promises, but only some of them are enforceable. For a contract to be enforceable, seven key characteristics must be present. We will study this “checklist” at length in the next several chapters.

• Offer. All contracts begin when a person or a company proposes a deal. It might involve buying something, selling something, doing a job, or anything else. But only proposals made in certain ways amount to a legally recognized offer.

• Acceptance. Once a party receives an offer, he must respond to it in a certain way. We will examine the requirements of both offers and acceptances in the next chapter.

• Consideration. There has to be bargaining that leads to an exchange between the parties. Contracts cannot be a one-way street; both sides must receive some measureable benefit.

• Legality. The contract must be for a lawful purpose. Courts will not enforce agreements to sell cocaine, for example.

• Capacity. The parties must be adults of sound mind.

• Consent. Certain kinds of trickery and force can prevent the formation of a contract.

• Writing. While verbal agreements often amount to contracts, some types of contracts must be in writing to be enforceable.” (Cengage Advantage Books: Introduction to Business Law, Page: 143)

"Business people sometimes refer to their lawyers with terms like business prevention department. They may be reluctant to ask an attorney to draft a contract for fear of the time and expense that lawyers can inject into the process. And they worry that the lawyers will interfere in the business deal itself, at best causing unnecessary hindrance, at worst killing the deal. Part of the problem is that lawyers and clients have different views of the future."
(Cengage Advantage Books: Introduction to Business Law, Page: 208)

Reasoning of the Law

After analyzing my experience and encounter with the lawyers, I assume that they might have declined answering my questions because of personal issues such as, they didn't want to be responsible for the answers that they put out or they didn't want their names to be used in my assignment. Another reason could be that they didn't have the time or want to take the time to answer the questions. I understand that to them it could feel like a waste of time because normal they would get paid for what I wanted them to do for me. "It is enormously time-consuming and expensive for companies to locate all the relevant material, separate it from irrelevant or confidential matter, and furnish it. A firm may be obligated to furnish millions of emails to the opposing party. In one recent case, a defendant had to pay 31 lawyers full time for six months just to wade through an ocean of e-documents and figure out which had to be supplied and how to produce it. Not surprisingly, this data eruption has created a new industry: high-tech companies that assist law firms in finding, sorting, and delivering electronic data." (Cengage Advantage Books: Introduction to Business Law, Page: 43)
Fortunately, I had better luck and better answers after researching on my own. The answers are legal advice from actual people or lawyers who have answered questions that have been posted in blogs or forums. I thoroughly read all the answers and picked the ones that were most professional and accurate. I based my judgment off of common sense, research, and knowledge that I've gained thus far.

I believe that the thinking process and logic behind the people that posted these answers is that they are experienced photographers who have been in the field for many years and have personally dealt with legal issues and want to pass on their knowledge. It is also possible that the answers came from people who practice law or know a lot about the law and either they truly like to give legal advice or they agreed to answer questions in order to get their name out and gain more clients.

The Questions

These are the ten questions that I chose to ask. I wanted to base the questions on my major, which is photography, and how it ties in with business law, and copy right law. I figured If I asked these questions, the answers would come in handy for my career in the future.

“Copyright- Under federal law, the holder of a copyright owns a particular expression of an idea, but not the idea itself. This ownership right applies to creative activities such as literature, music, drama, and software” (Cengage Advantage Books: Introduction to Business Law, Page: G16)
“The holder of a copyright owns the particular expression of an idea, but not the underlying idea or method of operation. Abner Doubleday could have copyrighted a book setting out his particular version of the rules of baseball, but he could not have copyrighted the rules themselves, nor could he have required players to pay him a royalty.” (Cengage Advantage Books: Introduction to Business Law, Page: 506)
“Unlike patents, the ideas underlying copyrighted material need not be novel. For example, three movies—Like Father Like Son, Vice Versa, and Freaky Friday—are about a parent and child who switch bodies. The movies all have the same plot, but there is no copyright violation because their expressions of the basic idea are different.” (Cengage Advantage Books: Introduction to Business Law, Page: 506)

How can photographers protect themselves from being sued?


What steps should I take if my photo is used without permission?


What are the legalities of accepting payments as a freelance photographer?


Is it legal to sell a photo of a hotel building or a sign of a public market?


If an illustration of one of my photographs is made and used commercially or editorially, is it an infringement of my copyright?


How can I get permission to use copyrighted photography?


If you are shooting a movie/photo (non-profit or profit) with a willing person, should you get a contract signed from him/her?


Will electronic or digital model releases or contracts hold up in court?


What are the appropriate laws regarding taking candid or unsolicited shots of people in public places?


What are the most important issues to cover in a portrait photo contract?

Legal Authority

When I first found out about this assignment, my initial thought was to contact a family friend who is a lawyer. Her name is Jennifer Adams (name changed to protect identity) and I figured she might be of help because she hasn't been out of school for very long and she recently passed her BAR exam and started working in a law firm. I assumed that she might be the perfect candidate to answer my questions so I contacted her, briefly told her about the assignment and told her to expect an email from me. She told me right away that she was glad to help and she agreed to communicate with me via email. In the email, I thoroughly explain the assignment in great detail and I listed the ten questions that I came up with.

She responded the very next day and she was still very enthusiastic about helping me, but unfortunately she couldn't be of much help towards this specific topic. She wrote back saying that she would not be able to answer my questions because the questions were not in her field of expertise. I understood her reasoning behind her response because my questions mostly had to do with intellectual property and copyright issues within the photography business, and it takes a specific type of lawyer to know the answers right off the bat. She told me that intellectual property is a very specialized and specific area of law but she didn't want to leave my questions unanswered and she still wanted to help. She mentioned that she knows an intellectual property lawyer and she offered to discuss the questions with him. She promised to get back to me right away as soon as she spoke to him but I knew that changing my lawyer at this point in time would be a major setback. I agreed with her suggestion and I thanked her for her help but I knew that I would have to start looking for a new lawyer just in case.

"One of the major challenges for legal institutions in regulating copyrights is simply that modern intellectual property is so easy to copy. Many consumers are in the habit of violating the law by downloading copyrighted material—music, movies and books—for free. They seem to believe that if it is easy to steal something, then the theft is somehow acceptable. In one survey of adolescents aged 12 to 17, 75 percent agreed with the statement, “file sharing is so easy to do, it's unrealistic to expect people not to do it.” (Cengage Advantage Books: Introduction to Business Law, Page: 508)
I still wanted to try and find someone who I personally knew because I figured that their answers would be more honest and genuine and they would want to spend more time answering my questions. I carefully thought about who else I might know that is a lawyer. Then it hit me that we have another family friend named, Tim Johnson (name changed to protect identity) who is a lawyer and a judge as well. I was sure that he would be able to answer my questions because he has many years of experience in the field and I figured he must know the law since he is a judge. I went through the same process as I did with Jennifer, and he also agreed to help me. I emailed him as well and he wrote back with a similar response to Jennifer’s. He said that the topic was out of his expertise and that it would take a lot of time and research on his part to be able to answer the questions.

In the mean time, I heard back from Jennifer and she told me that after speaking to the other lawyer, he said that he mostly deals with patent law and he does not know the answer to my questions either. Needless to say, my questions were viewed by three different lawyers and neither of them was able to give me answers. This experience has taught me that I would have to find a very specific lawyer, although my original understanding was that any lawyer would've been able to give me some kind of answer. By the time I got done contacting these lawyers, I realized that I was starting to run out of time to contact a completely new lawyer. I was left with very little time, still no lawyer, and unanswered questions. I had to take the matter into my own hands and find my own answers to the questions by researching. It wasn't what I originally had in mind but I was able to learn a lot just by researching, maybe even just as much as getting my answers from a lawyer.

Although things didn't go as planned, I do see the importance of talking to a lawyer and even hiring a lawyer for future business matters. “Business people are optimists—they believe that they have negotiated a great deal and everything is going to go well—sales will boom, the company will prosper. Lawyers have a different perspective—their primary goal is to protect their clients by avoiding litigation, now and in the future. For this reason, lawyers are trained to be pessimists—they try to foresee and protect against everything that can possibly go wrong. Business people sometimes view this lawyering as a waste of time and a potential deal-killer, but it may just save them from some dire failure.” 

(Cengage Advantage Books: Introduction to Business Law, Page: 208)

I have definitely considered getting a lawyer once I start my own business, for it will make my job a lot easier because in the end, we’re not lawyers, we’re artists!