Todays guest is Rachel Brenke, a licensed attorney in Virginia and Texas focusing on small business law including contracts, business formation and intellectual property such as copyright and trademarks. She is also the face behind The Law Tog which is the only dedicated legal resource for photographers. I can not wait to get into todays interview With Rachel Brenke

In This Episode You'll Learn:

• How Rachel got started with Law and photography

• What is a photography contract

• Where to get a free portrait photography contract

• When do you need to an LLC

• Do children need to sign a model release

• What needs to be on a photography contract for minors

• Current laws about shooting street photography and selling photos

• When is it legal to start charging money

• When does photography change from a hobby to a business

• The most common legal issues photographers face

Premium Members Also Learn:

• How to make a photography contract

• What a wedding photography contract should include

• Why a photography contract and model release should be two separate documents

• The benefits of being a legal entity

• What to do if someone steals the photos off your website

• Who needs to sign a wedding contract if parents pay

• Can you cancel your contract if are in unsafe working conditions

Resources:

• The Law Tog Website.

• Download the free portrait photography contract

Did you enjoy this episode? Check out more recent interviews with other great guests!

Full Episode Transcription:

Disclaimer: The transcript was transcribed electronically and may contain errors that do not reflect accurately what the speaker said. Because of this, please do not quote this automated transcript.

Raymond: 00:00 Hey Raymond here from the beginning of photography podcast and growing up, my least favorite restaurant was McDonald's because they didn't offer any sort of fry alternative like why. Okay. Anyway, let's get into today's interview.

Intro: 00:14 Welcome to the beginner photography podcast with Raymond Hatfield, the podcast dedicated to helping you grow your photography skills. Raymond interviews the world's top photographers in their field to ask questions that will get you taking better photos today. Now with you as always, husband, father, home brewer, La Dodger Fan and Indianapolis wedding photographer Raymond Hatfield. Welcome.

Raymond: 00:45 It is me, Raymond Hatfield as always, your host, Indianapolis wedding photographer and Admin of the beginning photography podcast, Facebook group, which you should all be a part of because it's a fun, safe place to share your photos, ideas, ask questions. So I'm in there all the time. I love it. I want to invite you to come join too. So today's interview is one that I know there's going to be a lot of questions about and that's kind of why I opened with that beginning photography podcast, Facebook group. Cause that's going to be the best place to ask questions about today's interview. Today's interview is with the law tog and if you if you've ever searched for like, you know, photography contracts online or she's the only dedicated legal resource for photographers and she offers a ton of resources. So today I had her on the show and it's a really great interview that I know you all are really going to enjoy.

Raymond: 01:37 But before we get to that, I just wanted to take a minute to to think one of you, one of the beautiful listeners of the beginning of photography podcast who left a review on iTunes today comes from Matthew. Matt. Yeah, Matthew. Matthew says, this is a great podcast for anyone looking for advice to take their basic photography skills to the next level. It's very motivating and inspiring. I've been bouncing around looking for more podcasts like this, but I can't and keep coming back to this one. I think I've listened to every show at least twice. Keep up the good work, Matt. Thank you. Seriously, I, I, I'm glad that you are finding value in the podcast. I'm glad that you're enjoying it, glad that you're enjoying the guests and and listening to each episode twice as I'm, maybe you've listened to my voice more than I've listened to my voice.

Raymond: 02:26 So that's that's, you deserve a medal for that right there because it's not easy sometimes. So, Matt, again, man, thank you so much for listening to the podcast and leaving a rating and review because it really does help, you know, the iTunes reviews. I cannot stress how much iTunes reviews help the podcast either get found by other listeners like yourself looking for something new because suddenly if you're looking at, well, let's see what's related to, to the podcast here. Let's see a related, maybe you listen to the family photographer podcast date with Jenny Stein and you know, because of the ratings and reviews, the beginning photography podcast skits, iTunes will think, hey, maybe you want to listen to the beginning of photography podcast and then you check it out and then you find something that you enjoy. You said that you bounced around from a lot of different podcasts before you found this one.

Raymond: 03:14 So you know, maybe its rating and reviews that helped the beginning photography, podcasts get in front of you. And if you're listening right now and you've found the beginning of photography podcast, I cannot tell you how grateful I would be if you just took two minutes of your time, not even two minutes of your time and left a review for the show in whatever podcast player you are listening in. It doesn't matter if it's stitcher it well the only one that it matters in is Google play because for some reason you can't leave reviews and Google play makes zero sense. But any other podcasts player iTunes is definitely number one, but every other one helps as well. And like I said, it really, really, really helps the show be found for new listeners. So Matt, again, thank you for all that you've done.

Raymond: 03:59 I, I truly appreciate it. So let's go ahead and get back into today's interview. Today I'm talking with Rachel Bryn key. She is the law tog and like I said, she has a ton of legal resources. There's going to be a ton of legal claims. In fact, it's all legal questions today. But as always, the interview is cut in half for a free listeners and premium listeners today premium listeners are going to hear why you should be a business entity rather than just using photography as a hobby and how it protects you, what to do if somebody steals your photos online and what sorts of legal action you can take to them. Who should be signing a contract for a wedding if, if the, if the couple is my client or if the parents are paying what is their legal you know, responsibility and the whole transaction and what to do if you are at, if you are in a situation where you feel unsafe, can you break that contract? So these are, these are all things that a, that are definitely geared towards those who want to take photography as a business. However, being legal, it's kind of all business related. So you're definitely gonna have a lot of questions. This one. So again, join the beginning photography podcast Facebook group and you will be in the perfect place to ask your question. So let's get down into it. Today's interview with Rachel Brenke.

Raymond: 05:25 Today's guest is Rachel Brenke, a licensed attorney in Virginia and Texas focusing on small business law, including contracts, business formation and intellectual properties such as copywriting and trademarks. She's also the face behind the law talk, which is the only dedicated legal resource for photographers today. I can't wait to get into it and talk all about law and legal stuff with Rachel Brenke. Rachel, thank you so much for coming on the podcast.

Rachel Brenke: 05:50 Thank you for having me. I always cringe when we lead off that I'm a lawyer just because really, who wants to listen to lawyer talk,

Rachel Brenke: 05:58 You know, but I promise guys, I'll try to make this fun and easy to understand.

Raymond: 06:02 Yeah. You know, I think it's a, it's one of those things. It's like if there's somebody smarter than me in the room it's, it's really exciting. And you know, I think legal speak is never fun, but once you realize how important it is, it's a, it's something that you really need to pay attention to. And I'm excited. I've been reading your blog for several years as a photographer and I think that you make it fun and interesting. So I know that this is going to be a great interview.

Rachel Brenke: 06:27 Well, thanks in no, just one little thing on that is guys, it can save you money, you know. I have, I'm a photographer as well, so I totally know what you guys are going through. I'm in the trenches. I know the pain points. Your clients have the questions, they have objections, what you guys are dealing with on the front lines. But also in my law firm, we get a lot of inquiries obviously from photographers, but they're typically after an issue has already happened in guys, it costs you so much more time, money and energy, having to clean up an issue rather than preventing it.

Raymond: 07:02 And nobody wants to do that. Everybody would just rather be good from the start for sure.

Rachel Brenke: 07:06 Yeah, I agree. You know, and that's if you want to pay for my kids' Christmas by having a problem. Okay. I don't feel good about it. I would rather ask fixture stuff in the future going forward, but that is my job. But I do honestly feel bad because I feel like I've poured so much into the law tog, and you guys haven't visited this site, years worth of blog posts and articles that are top questions and issues that you're facing. Dig into it. It's free. And then you can come ask questions, save just money.

Raymond: 07:36 Perfect. everybody loves to save money, but yeah. Before we get into today's interview, I got a lot of questions specifically from the the beautiful people of the beginner photography podcast, Facebook group that hopefully you can answer. But before we get into those, I want you to tell me a little bit more about who you are and how you got started into the world of law and photography.

Rachel Brenke: 07:57 Oh, man. So I've been an entrepreneur for about 15 years now. I actually started with a fitness apparel company, which is funny cause I'm like totally not fashionable at all. And so I started with that and I just realized through that process, and you guys count back the years, this was before Facebook, this was barely my space, right? There was not a lot of blogs that information out there. If you wanted to know how to set up a business, how to market it, how to do it, you had to go find a lawyer to talk to you about the legal stuff. Like you didn't have a choice. And I just remember, and again, this was before I was an attorney guys this week I had law school really wasn't even on the horizon for me. I just knew that I wanted to be an entrepreneur. I had overcome cancer and I wanted to be around with my family as much as I could.

Rachel Brenke: 08:49 Plus I'm not one of those types, as many of you that fits into the nine to five bucks, you know, I wanted to run things for myself. And through that process is when I ran into these barriers of if I want information I'm going to have to pay an attorney, which nothing wrong with that obviously. I definitely endorsed that recommendation, but there's an aspect to that that I realized in the process in a lot of the Internet has caught up as you guys have well seen that when you're an entrepreneur and you're equipped with the knowledge that you need to know, even before seeking out a professional service or even before hiring a logo designer or marketing, branding, whatever it is, the more knowledge you have as the business owner, it elevates you to the level of CEO and you're able to make these more strategic monetarily efficient decisions that give you good returns and really do protect you in the end.

Rachel Brenke: 09:42 And so that is kind of where I started thinking, Huh, you know, there's not a lot of resources to help other moms specifically like myself to be able to do entrepreneurship. And so I went into, I did Grad School, got my MBA, which I had my own opinions as to whether or not you really need one to run a business. The answer's no, no, I, you know, when I say it all the time I'm like, you know, I've learned more by doing than actually informal education. And so while in that I was like, well let me try this law school thing. I think that's an added benefit because at that point I was helping other business owners figure out how to set up how to, you know, navigate business planning, marketing strategy and all of this. And I figured law school would be a good way to add that to my arsenal of services for my clients.

Rachel Brenke: 10:34 Well, during law school is actually when I became a photographer at the time my husband was active duty army. He was deployed to Iraq and well home and Iraq, you knows the three year thing with law school. And we really felt the financial crunch of me having to quit my full time job in order to go to law school. And so I was seeking something. I couldn't do as much consulting and stuff as I had in the past. And really technically you're not supposed to do that type of work while you're in law school. And that's how I ended up getting into photography. I had already been working on the craft for myself for many years and I said let me make a go of this as a photographer. And while building my own photography business, Benny Photographers realized I was in law schools started coming to me asking me questions.

Rachel Brenke: 11:21 Some of them were already business consulting clients of mine and at the end of law school I was like there's something here, you know these photographers need help. I want to know more about this industry. I want them to know more about how I can help them and the law tog was born. So very long winded answer but I wanted to share the history to show that my perspective isn't from a lawyer sitting on an ivory pedestal here like talking down. I really want you guys to imagine we're sitting and having coffee together that I get what you're going through. Cause I haven't been there and I still do it. I still do photography for my consulting clients and I love it.

Raymond: 11:55 Wow. What a great story. Thank you so much for sharing that. It it obviously like you said, is a long road to get to where you are, but I mean it's paid off. It looks, I mean everything that you got is incredible. But w when you started to focus on photography what area of photography did you start focusing on? Was it families? Was it weddings? Was that up? Like pet portraits?

Rachel Brenke: 12:18 Oh, I made all the mistakes that many photographers do. And there's nothing wrong with it. I actually think there is something to be said about the whole baptism by fire and to entrepreneurship. And I often look fondly back on my first few years of being a photographer, learning a new industry and all of that. And so I was doing general portraiture and then I just had an over the years narrowed down, I start, I dabbled in wedding song, but it didn't really fit my scheduling because my husband was deployed. I was, you know, we had little little kids and it wasn't working out. So I strategically pivoted and made it so that I could do a lot more individualized portraiture and headshot stuff on my own schedule but still make what I needed to make financially. And so it's just narrowed down now that my law firm practice is exploded, the La Times exploded and my business consulting it's more a photography is a value add for my clients at this point. And so I do primarily commercial and marketing work.

Raymond: 13:19 Okay. I love it. So I think that like you, most of the listeners are probably starting off. Same thing, general portrait, you're just doing a little bit of everything. Maybe, you know, coworkers are coming to them. Absolutely coming to them, asking for maybe children portrait or family portraits. Maybe they got a friend who was getting married and if they're considering doing this right, like, okay, maybe I will a shoot a wedding. It kind of makes sense in your head. Like, oh, I should really have a contract. A wedding is a big day. I don't want to screw it up. But if somebody is coming to you for, you know, photos of their, their, their children, I think that they might not think that a contract is as important as it would be for a wedding. So can you, can you walk us through that and tell us why we need a contract?

Rachel Brenke: 14:02 Yeah. You know, it's, it's interesting is that if we had had this conversation about eight years ago it would have, I don't even think contract would have been on the table. I'm loving that the industry is moving to understand contracts are needed more and more. My stance is everybody gets a contract. Everyone has to sign a contract to work with me, whether except for my Momma, cause she gave me life and all that. But maybe, you know what I mean? And I joke like that, but it barely is true. Even when I work with friends, even if we're bartering, which I have my own opinions on. But we still will do contracts because contracts duel couple of things. Not only do they legally protect you in the sense that they create the legal relationship between you, the photographer and the client. It's creating the relationship and it's providing a structure for what's going to govern that relationship.

Rachel Brenke: 14:56 It provides a professional and one stop place that clients can see what to expect from you and you can see what to expect from them, what everyone's responsible for, payments, what happens in reschedules, cancellations, et Cetera. So I mean there's a whole long list of things to be included in there and we can go over that here in a second. But for me it's, you know the saying you can't put the cat back in the bag and if you photograph without a contract and then you have an issue, you can't go back and try to manage it by saying, hey, sign this contract. I manage with the issue we just had so we can resolve it. No, like you needed to set all of the legal structures in place up front. And I'll, and I'll circle back around to that here in a second.

Rachel Brenke: 15:41 The second thing on top of legal protection I think contracts can do is that they set expectations. I mean I said that in the legal context, but they also just set expectations from the buyer's confidence context with you. There's not a consumer or a client having to play 500 questions to know what the step next step of your process is. Right. Cause many of these, especially new clients who've never come to you before, they've probably not done custom portraiture, whether it's pet photography, newborns, booed wire, you name it, they probably have not. Or if they done it, it may have been awhile, but other photographer may have had another workflow. You need to be able to pull them in, which you can do with a contract pool the client in to understand the expectations and so that they are comforted to know the process of what they're going to go through.

Rachel Brenke: 16:34 I'm a little segway here. Oftentimes I hear photographers say people aren't booking me because of my prices and in my consultations with photographers, I always say, let's take pricing off the table and let's look at everything else. Oftentimes the issues, not the pricing, it's things that break down buyers confidence. It makes it hard for them to want to press the buy button or sign that check. And one of the big things is because they have not had their confidence built up through outlining of expectations. They didn't know what was going to happen. The more information that they have, the easier it is going to be for them to book you. And then the third thing, I also feel that contracts work for their, their customer service tools. Cause I'm not one of those, even as a lawyer that believes that you should use a contract to beat your clients over the head with it.

Rachel Brenke: 17:24 I really think that we should approach it as a customer service tool. We have it as legal protection. We have it to build their buyer's confidence. But what happens in the cases when something happens cause something's always going to happen. You know, you never have an issue to have an issue. Life happens. And the one of the best examples that I always give for this is let's say there's a payment schedule there, right? Saying that you have to pay me $50 every two weeks for an x amount of time. Well, what happens if your client comes to you and says, oh my father passed away. I'm going to miss my payment this week. You have a choice as a business owner, and I'm not saying a contract is the only way that you can take this customer service step. I'm going to show you how it can give you more impact, right?

Rachel Brenke: 18:09 So in the context of that situation, you can say to them, that's great. I'm not great. Oh my gosh, that's horrible. When I was, it's okay if you don't pay this week. I'm sorry for your loss. I understand. We'll catch up next week. The contract allows you to do the customer service, but then it also was there as a safety net to protect you. Cause what happens if the client is lied or the client decides to push the boundaries and then all of a sudden that one payment is now eight payments or whatever. Right? You need to be able to set the boundaries there and contracts also provide, Ha I laugh cause I always think of the movie liar liar with Jim Carrey. You know when he's trying to say we couldn't, he was pulled over for speeding and they go, do you know why we pulled you over?

Rachel Brenke: 18:55 And he tries to say no, but he goes even yes, right? He can't say no cause he can't lie. And I feel sometimes that photographers and guys, this isn't exclusive to photographers. This is just an entrepreneurship thing. Especially when you're in the first few years of business, you're afraid of telling a client know about something, right? Because you don't necessarily want a bad review or you don't want 'em to make the relationship just seem awkward and weird. And so having a contract can kind of allow the contract to be that no man for you. And it gives you kind of a backbone so that you don't get treated like a doormat. And you also can deflect in a way to say, you know, the contract you agreed to says this. That's what we're going to do. As opposed to the difference. We're just saying, no, I'm not going to do that for you.

Rachel Brenke: 19:44 Right. You know, it's just an a, it's more of like a client psychology thing, but it also provides you guys as photographers just a little push and a backbone so you don't get run over because there are some clients out there that do that. So in my long winded fashion, the major points as to why I think you need to have a contract for every single type of photography you're doing. I, there's probably none out there that, that I can think you would ever do find without legal protection. The setting, the buyer's expectations, customer service and just lounging it to set boundaries.

Raymond: 20:21 Yeah. I thought it was really interesting there that, that you know, you kind of look at the contract as, as more of that, that no man, right. Because it is guard. You don't want to say no to a client and if the client had already signed a contract, that does make it so much easier to kind of, I don't want to say pass the blame, but you know stand behind your contract rather than having to be the sole person who decides whether or not something can happen. So you so much for clarifying

Rachel Brenke: 20:48 That that was a, it was a really good explanation. Thanks. And you know, when you balance it with customer service, right? You know, you want to look in the light of the situation because for me, I encourage everyone to be human first, you know, and then you can look to the contract stuff and allow it to be the no man for you and allow it to protect you too. Because that's another thing with this, we're not a charity, right? We're not, most of us listening. You're intending to be a photographer to make money, to support yourself and or a family. And so you, you want to put supports in place to be able to allow you to do that because you have mouths to feed, including your own. Which actually, you know, if I could touch base on one of the points that I said, I would circle back around to the contract protections.

Rachel Brenke: 21:32 Let's say you're just photographing and you've never had a problem. You're not using contracts, which by the way, I speak in many conventions and conferences, right? I always have, people will come up to me after my talk and say, well thank you, that was great, but I don't use contracts. I've been in business for 10 to 25 years. I've never had a problem every single year that happens. And every single year at least one of those comes back in my inbox with an issue the next year. And they end up and have not used a contract. And in enabled to, and I'm going to give you an example, the classic example here in a second. But in order for them to be able to enforce their rights or to clean up the issue, they end up spending more time and money and it just is messier. Right? The best example that I can give and probably maybe the most enticing is in your contract you want to write some other things in there, not you, your lawyer, but wants to put it in there like who is going to receive attorney's fees if you have to enforce the contract or if any are going to be refunded by the other party.

Rachel Brenke: 22:40 Because in the United States, and perhaps it's a little late for our disclaimer, but this is United States based, educational information purposes, general information, you always need to check for your state. But generally speaking, let's say that you and I are in a contract together and you don't pay me, I'm the photographer and, well, no, I guess let's say no contract at all. We just did a session and I you end up not paying me for something. You miss a payment or whatever happens and I want to sue you to get me that money to pay my, you know, to feed my five kids. And you're like, nope, take me to court. Well, there's a common misconception that whoever wins pays the other person's attorney's fees or I'm sorry, whoever loses pays the winner's attorney's fees. Right. That's not accurate. The only ways generally speaking that you can receive attorney's fees in a claim like that is either by contract, Ding, Ding, Ding.

Rachel Brenke: 23:36 And you had to assign that contract ahead of time before the issues arose or by law. And oftentimes in the context of a non-payment like that, you're not going to re, it's not in the statute. You're not going to get it. You know, one of the most, I had a really classic example of this this last year with a client and I, it's, it actually has happened probably hundreds of times that I've seen in Facebook groups. I see it in our, you know, our firm Inbox, they'll go to a lawyer. This guy came to me and said, will you review my contract? And I said, well, it's probably gonna be about $600. He goes, no, no thanks. Not going to spend the money. So he went along with his own self drafted contract. He didn't listen to the beginner photo podcasts like he didn't know about the attorney's fees things and the other things he needed to know.

Rachel Brenke: 24:23 Ended up in a nonpayment issue with a client and it was a decent amount of money. It was probably a eight or $9,000 job. And long story short, he ended up spending more money on attorney's fees trying to enforce then really it was probably worth and ended up becoming a principle of the thing for him in the end. And then guess what he still ended up doing, he still ended up having to pay to have the contract reviewed and revised. So, you know, just save the money and invest up front and get the contract and all the things you want to protect yourself up front. Cause you can't put the cat back in the bag. We could, we couldn't ask for attorney's fees at that point. There was nothing in the law. And there was nothing in the contract. He has enforcement of the nonpayment was 100% coming out of his pocket.

Raymond: 25:11 Yeah. Like you said, they don't have a problem. You have five problem.

Rachel Brenke: 25:15 Yup. And I, and I hate it for you guys, so let's not do it.

Raymond: 25:19 Well. are you ready to get into some lightning round style questions that I gathered from the, the wonderful people in the beginning photography podcast. Facebook group?

Rachel Brenke: 25:29 Yeah. But when you say lightning round, my heart starts beating really fast. [inaudible]

Raymond: 25:35 No, trust me. It's a, you're going to do just fine, I promise. I promise. So the first question comes from Sarah and what Sarah asked is at what point, if ever, do you need an LLC? Is that when you're doing a particular type of photography or when you're earning a certain dollar amount, a consistently, et cetera?

Rachel Brenke: 25:54 All right, so this could be a long an answer. I'll try to keep it short. Basically, any time that you guys are putting yourself out as a business, you need to be protected and you can do it in multiple ways. Liability insurance. Good contracts for the reasons we just talked about. And then also having your proper business entity formation LLCs are the most common ones for like single or solo photographers. Here's the thing, you know, and in your question Sarah, you asked, are happy making a certain amount of money? Liability doesn't really give a squat how much money you're making. Okay, so let's say that you're in the red, you're trying to grow your business, you go out to a field or something happens, client breaks their ankle and you may be liable, right? There'll be me, we need more circumstances and facts in that.

Rachel Brenke: 26:41 But just generally speaking for this round, you want to make sure that you have limited liability protection. The fact that you weren't actually profiting off that session because you're putting all your money back into marketing or whatever. Liability doesn't care. The client can still have a cause of action against you and you want it to be one LLCs, which are most common. There are a corporation options too. As another shield to protect you. I think I always equate these two movies. I think of the movie Independence Day with Will Smith in the big alien spaceship. You know when they're shooting at it, you see the blue force fields. That's how I imagine an LLC formation is one of those to protect you because it's separating out your personal and business assets. And another one is your contracts and another is your liability insurance. So yes, you definitely need, you're putting yourself out there, you need to get your LLC or corporation. I'm on lockdown now. I recognize and understand that there's some states where it can be extremely cost prohibitive. Majority of the United States, cause there's they're done at the state level are fairly, fairly easy for you guys to invest into and then just portion it out into your costs of doing business. There are a select few where it's a bit more, just get creative in how you're going to come up with that money. I to me, it's a nonnegotiable. You need to have the LLC or corporation from the beginning.

Raymond: 28:03 Perfect. All right, so there we go. It doesn't matter if you're earning a certain dollar amount consistently. I love it. Okay. The next question comes from Carrie, probably one of the most active members in the Facebook group. So she asked when I do a family session, do I need a full model release for the kids if I'm going to share the photos on Facebook or Instagram. And what about the possibility that one of the photos could be entered in a photography contest? Does that need to be included in a model release?

Rachel Brenke: 28:33 Okay. So we have a couple of things going on here and before I jump into that, I want to say you can always photograph without a model release cause what does a model release do? It is giving you the end permissions. Much like Carrie just asked in order to use it, like in mark, your marketing, you as the photographer, you are marketing. It could extend to third parties depending on language, but it just depends on what's included. Now, as we just talked about with contracts, I don't think you should ever photograph without a contract. So I just wanted to clear that up because sometimes people say, well I can't photograph that. A modern release, you can do a session with just a contract with no model release but then you don't have permissions for use in marketing and so carry to like bottom line to answer your question, yes you need a model release for using your own marketing of the any of the adults and children that are in the photograph.

Rachel Brenke: 29:25 Obviously the, the legal guardian or parent of the child is the one that signs and adults can not sign for other adults. I comments suddenly see this happen in family portraiture where it's typically the mom, right or one of the couple is doing all the interfacing with the photographer. They sign all the contracts and they sign all the model releases and everything because many photographers stick the model release within the contract. Well I can't technically sign my, a model release for my husband. Why is that? Proper model releases not only give you permission for use in marketing properly drafted. Notice I've said it twice because this is a common problem in the industry. They identify what is called publicity rights and it's basically having the client release any claims against you. For the use of their publicity or their likeness. Basically their face in marketing, right?

Rachel Brenke: 30:22 Most modern releases stop at point number one, which is just giving you permission however that permission doesn't identify are they going to be compensated or not. What happens if you took a fantastic family photo and a local boutique or jewelry store wants it on a billboard, right? Well, the amount of time it'd be an up there and Janie's driving down the highway and she sees it and all of a sudden she wants to make, you know, make some money off her face on there. If you didn't have it in your moderately, she could have a potential claim of compensation for the use of her face. And the same thing goes for it being on your website as well. So answer your question. Yes. Everyone needs to sign, adults have to sign for themselves. They should not sign for another adult. I always recommend breaking out the motto release from the contract.

Rachel Brenke: 31:13 Multiple reasons. One is the whole signature thing we just talked about. Adult cannot sign for other adults. This definitely comes up when you have like a, what do they call family reunions and they do big photographs. You know, maybe just like one of the daughters is signing the contract with the a bunch of other adults. Everyone's got assigned for themselves. And yes. So now second part of Carrie's question, she asked about whether or not the images are being put into contest that's not appropriate in the model release going back model release is permissions from the clients to the photographer. Okay. What you're wanting to govern is the use of the photographs by the client. This can either be done within the initial contract, the main one that's creating the entire relationship and governing it or in the industry calls it or print release. I am not a fan of the terminology, but it's a personal use license essentially. And whatever's included in there is you telling your client this is what you can do with these and it can be more than just real files. It could also be physical products as well. But Carrie wanted to use the photo for her.

Rachel Brenke: 32:36 The same thing that applies. Okay. So when was thinking here was if a client wants to putting into a contest. So just to answer that really quickly, if a client's wanting to put in a contest, if you're going to govern that by either the print release with a contract, if you the photographer are wanting to use it for contest, you are correct. It would need to go in the model release in the language and would have to reflect that.

Raymond: 32:57 Okay, got Ya man, that was a, I know this is the beginning of photography podcast, but I just learned something there, which was a great tip that I need to now separate by module release from my main contract. So thank you so much for sharing that. I'm glad that we got the opportunity to talk today cause that is now the next thing on my to do list.

Rachel Brenke: 33:17 Of course, you know, there's other reasons for it. There's this best legal practices to break things out like that. And then also what did you run into someone who simply doesn't want to sign a model release cause they're private people. And now I'm still, I have many, I live in the DC area and so I have a lot of clients when I do shoe personal portraits or stuff I only do it on a referral basis now. And they, they work for three letter agency stuff, Da, ACA and all that kind of stuff. So they don't want to be online or published and it's just easier streamlined wise for me able to send the contract and not send them auto release links since I do digital contracts

Raymond: 33:53 Of course. So if somebody wanted it, so if somebody came to you, if there was a referral came to you and said like, Hey, we want our photos taken and you sent them on monitor release and they said, nope, we're not gonna sign it, but we still want to move forward. That's okay. That just means now that you can't share the photos online for your own personal use, is that correct?

Rachel Brenke: 34:12 It's, yeah, it's for a, for all the commercial use stuff, you know, there's really fine line on that, which is really what we're doing here, right? Yeah. Or utilizing it in commercial activity. And again, you know, everyone's got their own opinions on that. Some people will charge for people's privacy. For me that run doesn't really make sense. And honestly I make most of my photography money by referrals. And so I would rather make the money off that session and get the referral out of it as opposed to shut in not being able to share a couple of photos on social media.

Raymond: 34:46 Yeah. Yeah. And it's all about the customer service. I love that. Okay. So next question comes from norm and norm asks in the USA, what's the law about photographing people in a public area in the frame of selling photos online?

Rachel Brenke: 35:01 Oh yeah. So well hi norm. That's a little complex question because generally speaking, if I'm walking down the street, anyone can photograph me, right? It's, I'm, I have no expectation of privacy because I have knowingly exposed, I hate using that word cause I didn't actually expose myself, but I am knowingly, that's the terminology I have knowingly exposed myself to the public. So there's no real privacy for that. But the line is how are the photographs being used? Cause we've seen this happen a lot of times where they'll photograph in public places, maybe the photos get submitted to stock photography and all of a sudden it ends up on a disparaging website. Right? I'm not specifically about the person in the photograph, but maybe it's a very politically charged or defamatory. One of the most exact big examples I can think of in the last few years is there have been cases, and this is much more extreme, but it can happen.

Rachel Brenke: 36:04 And I share this in case maybe norms, intention is do photograph and sell on stock sites is these stock images are being used on websites like for advertising sexual transmitted diseases or HIV aids. And they become, they're these people's faces and up in these campaigns, oh no. Becomes an issue. Right? And so that's, it's a little bit of an extreme example, but it's very real and it's happening. So I caution you, I'm a very conservative lawyer and I'm not talking politically speaking, I'm speaking conservative in the fact that I would rather.my i's and cross my t's ahead of time. So if you're photographing, and I know this is not always the bat, you can't always get a release from everyone when you're out photographing in public. But if you're being very intentional about specific shots and you see a specific person, I don't know. For me, I'd rather CYA and get the proper permissions rather than having an issue in the end. Again, that's an extreme example all a bit. I hate giving this answer. It's the lawyer's answer depending on what you're wanting to do, norm, it's very fact specific.

Raymond: 37:15 Yeah, no, I think, I think that that was a perfectly fine answer. It's gotta be hard, you know just to go out there and know what it is that you gotta do. And, and with so many different types of say, street photography, you know, I don't know if he's selling just individual photos online or like you said, stock photography, but it gives a good idea of, of the kind of the weight of what needs to be done from a, from a legal speaking. So I think that was a great answer.

Rachel Brenke: 37:41 That was great. You know, we can even circle back around and what we were talking about before with model releases and that whole claims of compensation for publicity rights, you know, is there, even though there was no expectation of privacy in a public place, is there still a potential for publicity rights claim by the individual that's in the photograph? Maybe it depends on

Raymond: 38:01 Something that I, that I never would've thought of. Wow. Geez. Geez.

Rachel Brenke: 38:05 It's why you have me. Yeah, exactly. Exactly.

Raymond: 38:09 Okay. Well I think, I think that that definitely helped out norm. So, well, we'll move on to to Laura's question. And Laura's question is, is, is one that I know, I wondered when I first started, so I know that others are thinking it as well. She asks when is it illegal to actually start charging money? I E if I'm charging $15 as a beginner session, should I have a license? And if so, how do you go about getting one and I, that she's referring to a, I'm becoming some sort of legal entity.

Rachel Brenke: 38:39 Okay. Well, and I'm glad you made that distinction because often times, hey, it's easy for us to say license and mean LLC, an LLC or corporation. The entity formation is just creating the entity that's going to do activities. The license itself is actually giving you the permission to do a certain activity for that entity to do a certain activity. So for me, and I mentioned this, I think in the Sarah's answer was anytime you're putting yourself out, you need to have your business entity formulated because issues arise and you don't, if you didn't have your LLC before, you can't just backdate it and try to have liability protections as far as when it comes to charging. If, if you put yourself out like a business, whether in the intent to solicit to make money or you're actually making money. Again, remember little bit on the liability side a little bit.

Rachel Brenke: 39:36 Liability doesn't care how much you're making and honestly the government doesn't care how much you're making either. They want their money for you by way of your, you know, applying for your license. So you've got to set up the entity. You've got to get the PR, which is just creation of the legal entity, LLC or corporation. And you got to look at getting permission by the government to in your area and jurisdiction to do that certain activity, which is your license, and then you should then be soliciting to make money. Do people always do it that way? No. Is that the proper way? Yes. And this is one of those, you don't have an issue. Do you have an issue thing? Many times there's a lot of things that will fly under the radar until one straw breaks the camel's back. Then all of this comes up.

Rachel Brenke: 40:20 And to be honest, I don't want to have to deal with the government any more than I have to. I don't want to have to give them any more money than I have to. So get your license, get your entity set up, get your license before you're putting yourself out, which is a hard decision when you're looking at it strategically. Well, I don't even know if I'm gonna make any money. Right? So why would I invest? But on the flip side, guys, we're in an industry, we have a super low barrier to entry. We don't need a certain licensure or certification. We don't have to have to pay for a certain education or anything like that. We relatively can pay for a camera and be active. And so we're not a restaurant that has to buy 15 ovens and all that. So for me, I think there's a bit of responsibility in elevation the industry for us to make the choice of, yes, I'm going to put myself out to be making money. Before I do that, I'm going to take the proper legal steps.

Raymond: 41:17 Wow. That I what'd you said? Kind of a segue perfectly into, into the next question here, which again, I think that was a wonderful answer that I know that Laura is going to get a ton of value from. But the next question comes from Fabiola and she asks, when does photography changed from, from a hobby to a business? And I think this has more to do with being a illegal entity or, or, or perhaps maybe it's on the IRS side. Could you give a little bit of Info?

Rachel Brenke: 41:44 Yeah. Typically when I get these questions, it's on in the context of taxes. I know enough to be dangerous. I've stayed at a holiday inn but I'm not gonna touch the taxes stuff. So my recommendation is to talk to a CPA as far as when it comes to hobbyist thresholds and deductions and stuff. On my side, it again is that is that if you're putting yourself out like a business, you should be protected like one cause you're gonna have the liability like one. Again, whether you're making money, cause you may fall under a hobbyist by tax purposes, but you may look like a business for liability purposes. And so this is a good chance for me to step on my soapbox and say, please don't just run to a CPA. Please don't just run to a lawyer. You kind of need to have both of them working in tandem together. Lawyers are to focus on the liability aspects and let us handle that. That includes drafting of any documents to create your LLC. CPA's unless they're attorneys shouldn't be doing that stuff. Just like I shouldn't be doing your tax returns because I really wouldn't mock them up. Right. And CPAs, they are fabulous for tax strategy, tax planning and returns have that, you know, you need to have, both of us did CPA and lawyer.

Raymond: 42:59 Perfect. Yeah, I would imagine that it would a change from a perhaps from, from from state to state or would that be more of a,

Rachel Brenke: 43:07 Yeah, that's true. And you know, but you see the thing is like oftentimes people, nothing wrong. It's part of the information I'm trying to change, but the public thinks, oh I need an LLC, I just go to my tax person. We have cleaned up so many issues where CPAs who shouldn't be doing it have filed. They've messed up documents and fundamentally it can be on our authorized practice of law too. So it's one of the things you just want to avoid and do it right. Go to the professional that knows. Like I said, I know liability and all the business formation stuff and how to keep you out of hot water. They know how to make sure that you can save your money, strategize your money, and pay your taxes.

Raymond: 43:47 Good to know. Good to know. Okay. now I, I got another question kind of about, it's a little bit more in depth about the whole business entity side of things. I know I just recently did my taxes for the year, got all the information together and when I showed my wife how much I'm going to be paying in taxes just simply for running a business, jokingly asks, why don't I just dissolve the business and turn it back into a hobby? So for those wondering, what are the benefits benefits of legally being a business entity?

Raymond: 44:20 Hey Raymond here. And if you're listening to this, it means that you are listening to the free version of today's podcast, which means that you are missing out big time. You know, if you become a premium member, not do you unlock the full interview with today's guests where they share so much more valuable information on how to become a successful photographer. But you also get access to the entire back catalog of past interviews with some of the world's most renowned and experienced photographers who open up and share how they got to where they are and what they would do if they had to start all over again today. Now, if you want to find out, become a premium member by heading over to patrion.com forward slash beginner photography podcast or just head on over to beginner photography, podcast.com and click the link on our homepage. That's it. I hope to see you there. Not that it's appropriate.

Rachel Brenke: 45:12 Brilliant. As I can see this over and over and over, but you're not going to be discharged from a contract over a comment or a potential of something occurring. I hope I'm coming across right. I hope I'm coming. You understand what I'm saying?

Raymond: 45:27 Yeah, I do. I mean, it doesn't sound like you're making the situation okay. Or saying, ah, it's just one comment. Who Cares?

Rachel Brenke: 45:35 No. Thats not appropriate at all,

Raymond: 45:37 Right? No, of course. I, I definitely got that from your answer there. But you, you know, it is just a horrible situation that she found herself in and you provided some, some great ideas as to just what to put in the contract, you know examples like a point of contract that's, or a point of contact rather. That's something that I wouldn't have thought of. And like you said right there can, can really alleviate a lot of that. A lot. A lot of the problems.

Rachel Brenke: 46:03 Yeah. Does it, you just check the boxes and then you're good, right?

Raymond: 46:06 Yeah, absolutely. So we're, we're coming to the end here. I know we've gone far over our allotted time. Do you have time for two more questions? Okay. So you talk a lot to photographers about their legal problems. Obviously that's what you do. And what's over 42,000 photographers in your Facebook group? What do you see are some of the most common legal problems that photographers face?

Rachel Brenke: 46:34 Oh, this is going to be like a get out of jail free answer. But we basically, the questions you had for me are the top questions. LLC is why should I have a contract? What type do I need? What happens if a third party wants to pay? And the number one question always is, I found my images being used, why do, and I didn't get permission, what do I do? So those are the top ones. So guys, re listen to this episode because those really are the focus of what our group is. Some of the other ones may be simply, what do I do after a client's asking for a refund or I missed a payment or I'm sorry I missed a delivery deadline or a client missed a payment deadline. Those, the next on how to enforce the contract are Kinda the second secondary questions after the main ones that we just talked about.

Raymond: 47:28 Okay. I'm gonna try to, um, uh, re, uh, phrase that question, uh, cause maybe it'll give a little bit more insight. W W w what do you think photographers in your group have a hard time understanding?

Rachel Brenke: 47:30 Um I don't know. I don't know. There's so much that they don't understand or they don't realize that other, other photographers are going through the same thing. We get 10 posts a week about copyright infringement occurring to photographers, and then it's almost surprised like, well, what do I do now? And I'm like, well, Hey, we've talked about this extensively in this group. B, it's on my website and my podcast and my blog and everywhere. I, it, I, I think they don't understand that these issues will actually happen to them. It's a mindset of it'll never happen to me. So they're really caught off guard when it does happen, which of course I'm glad we have the group then to kind of guide them back to what they need to know.

Raymond: 48:33 Yeah. It's a, it's a, it's a wonderful group. It's a, it's very informative and with so many people in there, you're sure to get a, a great answer pretty quick. So I'm happy that I'm a part of the group and, and I can wholeheartedly refer anybody to it for sure. Yeah. Yeah. So, okay, last question. This one's kind of fun. We've, we've heard of the, the, the case of the Monkey.

Rachel Brenke: 48:57 Oh, I do this. Yes.

Raymond: 48:59 A photographer's camera, took a photo and now that monkey owns the copyright to vast photo. I want to know are there any other strange legal photography stories that you've heard that you, that you can share with us?

Rachel Brenke: 49:12 No, but on the monkey one, I always joke with my husband because he'll do, I'll set the scene, right, I'll do these settings, I'll do all of that. Then I hand them the camera for him to take a photo of me for the website and he goes, well that's mine. And I'm like, but is it because you just pressed a button? I artistically put the expression into it. Right. So I always call him and he's my camera monkey, but because, because of that case. Right? And he's going to call Peter or whatever. So other like funny stories. Ah, I don't know no more.

Raymond: 49:43 I mean that, that's a pretty odd one right there for sure when I heard it. Cause I know it's gone back and forth a few times, hasn't it? And it's, it's very yeah, it's very fun to, to, to, to just try to keep up with it.

Rachel Brenke: 49:54 No, but actually it's a really good one. Do you guys look at the fundamentals of it? Look at what we just talked about. The monkey didn't do any work except press the button right there. You have to put the artistic expression into it, the creating of the posing, the lighting, the settings and all of that. And so you can even apply that into, if you have second shooters, associates, shooters, assistance, you know, those sorts of things. That's a lot of intellectual property issues arise out of that and we don't have a lot of time to dig into that. Maybe we can do an episode in the future. Just the bottom is that I want photographers to recognize how their co, how their copyright protections, you know, intellectual property protections come about and how they can protect it. Because guys, we're in a really interesting profession in the sense that every business has intellectual property. Every business uses images and marketing videos and marketing has a business name, has a logo, but we are one of the few that actually is selling or licensing of intellectual property. So like, if you don't protect what you're selling, what are you even, what are you even doing?

Raymond: 50:58 Right. Yeah, that's very true. It's very true. It's good point. That's a very good point. Well, Rachel, you have been so gracious with your time today. I know it's very valuable. I know that everything that you have shared is going to be consumed and thoroughly enjoyed and appreciated by the listeners at the beginning of photography podcast. But even though you've answered so many questions today, if listeners still have more questions, can you tell us where is the best place to find out more about you and find you online?

Rachel Brenke: 51:29 Yep. So you guys can go straight to the law tog.com. From there we have the group link on Facebook, Instagram. It's the law tog on every single with v at the very front on all the social medias. We have a chat box on the website. I helped him monitor it. Son, I see what's going on. Email. I do have a great team though that helps to answer questions and get you resources in the group. I'm active in there as much as I can answering as well. So there is no lack of ways to get ahold of me if you have any questions and yeah, I'd be happy to help you guys keep your photography businesses protected.

Raymond: 52:06 Well speaking of that, I know that you also have a Freebie on your website. Do you want to share about that?

Rachel Brenke: 52:10 Oh yeah, so I have a free photography contract on it and once you download it, it kind of walks you through the legal client timeline. We touched on it a little bit here. It's either on the front page of the La Tog or you can go to the, the law tog.com forward slash free contract and you guys can download that and get good information right to your inbox.

Raymond: 52:32 Perfect. Rachel, again, thank you so much for coming on the show. I really appreciate it and I think I'm going to have to take you up on your offer and have you back on in the future.

Rachel Brenke: 52:40 Sounds great. Thanks for having me.

Raymond: 52:43 So if you are or if you are not running any sort of business, if you're thinking about it in the future, I really hope that this interview helped you because Rachel shared so much knowledge about the law specifically in the lens of photography. Oh, I didn't even realize that that was upon right there when I said it. That was great. That was great. So if you enjoyed this episode as much as I did because honestly I've been in business for a quite a few years and I still learned a few things from Rachel today, so I'm definitely going to have to go back, look over my contract splitting up the model release and you know, the, the main contract are, are, are big things that I need to do. And I hope that she answered all of you know, the listener questions and I got those questions from listeners, from you, the listeners from the beginning photography podcast, Facebook group.

Raymond: 53:35 So if you have any questions, you know, I'm asking all the time if you are going to have, if you want to ask questions to future guests, that's where you're going to be able to do it in the beginner photography podcast, Facebook group. So that is it for today. Rachel, if you're listening, thank you so much for coming on. Thank you so much guys. You don't understand the technical difficulties that we went through for this interview and Rachel kept coming back time and time again to put out this interview for you guys. So be sure to thank her in any way that you can. If you got value out of this podcast and she will be in the beginning photography podcast, Facebook group or you can check out her Facebook group as well, the law tog join the group, let her know that you found her through the beginning photography podcasts and just let her know, hey, thanks for coming on. So that's it for this week. Until next week, go download her free contract. Vince starts shooting. Focus on yourself and stay safe. That's it. I love you all.

Speaker 2: 54:33 If you enjoy today's podcast, please leave us a review in iTunes or your favorite podcast player and continue the conversation with Raymond and other listeners of the podcast by joining the beginner photography podcast Facebook group today. Thank you. We'll see you again next week.