Final Paper

Contract Courtesy:

Social media has added a lot to the business world. It allows for advertising to the masses over a wide variety of platforms. It has enabled an interactive medium for the communication between consumer and producer. It has blossomed into one of the primary forms of conducing business. Photography has changes tremendously over the past few years and primarily due to the advancements in social media. Online bookings, online sharing, online advertising. With these changes comes challenges as well. One of the most common challenges among photographers is artists rights contract violations, specifically when their clients further editing or altering photos delivered to them and then posting them on social media platforms. And with the growth of new (new to the photography world) social sharing apps, specifically Facebook and Instagram, copyright and contract violations are more of an issue than ever. We see issues like this arise all the time in the photography community. Understanding why this happens is important to fixing, or trying to fix, the issues at hand. With the development of apps that allow and encourage extensive editing to professionally done photos followed by the sharing to the masses conjures up the question and discussion of who really owns the photos, and the importance of photographers using and enforcing their contracts. The discussion of the basic laws and concepts to general rights of property will open up the conversation to clients about understanding the importance to such contracts. And equally as important is the photographers understanding of the minds of their audiences and the effects social media can have on business, clients, and contracts.

          A good friend of mine, also in the field of arts, said “I wouldn’t want to step on the work of the artist.” (Peschel). She explained it in different terms. It would be like taking someone’s song that they composed and changing one thing they didn’t like about it. It is now not the work of the artist, it is the work of that person. And if it sucks and your name is still attached to the work, well, then there goes the artists reputation. Similarly, when clients alter their photos after they are delivered by their photographer, the edits may not reflect the work of the photographer and deter future clients. Not only deter future clients, but its just plain rude to mess with an artists work. There is a lot of legality attached to doing work in this field. Along with the taxes, model and minor releases, insurance, and many other things, there is the very complex world of intellectual property law.

          Intellectual property, or IP, “refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.” (WIPO). IP is protected by law. IP not only helps small businesses reap financial benefits, but it largely helps to support the national and state economics. It also drives competition among businesses. In fact, because of the competition, the direct and indirect economic impacts account for over 40% of the U.S.’s economic growth. Because of this, it is important that we as citizens follow the law (obviously). So by altering an artist’s IP, whether that be musical works, an invention, or photographs, you are breaking the law. IP is, if you will, the fruits of mental labor. Many, if not all, organizations and companies have departments specifically designated to create these “fruits”. The IP doesn’t just include photographs, but a wide range of creations. Music, logos, inventions, photos, animations, poems, marketing material, watermarks, digital backgrounds, templates, novels, and many many more works of the result of creativity. And once these works are produced, they are the property of that company, organization, or individual that created the piece. The products aren’t required to be registered with the government for copyright, it is just kind of an unspoken, yet very serious rule. The purpose of these laws is to encourage people to keep creating new technologies and encourage economic growth.

There are also sub categories of IP laws. Copyright, Patent, and Trademark. Copyrights protect the expensive arts such as movies, books, and artworks by famous artists (think The Monalisa). This gives the owner of the work exclusive rights to reproduce, display, and sell their works and prevents others from doing this without permission. And again, they are not required to register. Copyright doesn’t protect ideas, though. So if someone “steals your idea” (this is rampant among the photography community, especially with local competition) copyright can only protect how the idea is portrayed. On the other hand, patents do protect ideas. They protect an invention from being created, sold, and used for a set period of time. This is where we get movie remakes! Once the patent is over, its free rein. This leads to the last of the three, trademarks. Trademarks protect the names and logos of products and companies. Think Apple or Disney. When companies have these things, it allows for consumers to distinguish between companies. Like the other types of IP, trademark is automatically assumed when a business begins. For things involving the photography business, it falls under the automatically assumed trademark and copyright IP laws. For photographic IP, if it specifically states it in a contract signed by both parties involved before delivery of the images, then you are not only breaking the law, you are violating contract. It is important to always follow the contract and always respect the wishes/rules of the photographer’s work. After all, you hired them because you liked their work and editing style. Even if it is not stated in their contract directly, clients still do not have the rights to the photos delivered and I think that people need to be educated about this. It is all about respect, keeping the business and that business’s work safe, and following the laws of IP.

          I have done a little bit of research over the years on this topic and it can still be quite confusing. The world of IP law is very complex, but the underlying principle remains the same over all media platforms. The rights to IP belong the one that has created the product and the “rules” are assumed and do not need registry with the government. Over the past several weeks I have narrowed down my research to just a few methods. These methods are simple, but I believe they have the biggest impact on gathering the information needed to make sense of it all. The methods I chose are not broad like articles online can be. As I found out, online articles are not very specific in research of this nature. One exception of this might be the online photographers blog, run by a lawyer, called The Law Tog. I have used an article of hers in my research as it directly relates to my topic. But other articles I have found focus on too broad of subjects. I used a few to get general ideas for the analysis in this essay.

          The final three methods consisted of concentration on those directly affected by photography and social media. I chose to speak with three photographers, two on a smaller, local scale, and one on a larger scale who works with surrounding areas and a wide variety of clients. This method focuses on the business aspect and can accurately show the effects that IP law and contract violations have on the creators. It also shows how social media has changed the way that photographers set up contracts and conduct their business including; contract wording and content, online bookings and marketing, IPS (in person sales), sneak peek posts, and the medium of delivered goods. 

I then chose to speak with those (the public) that have had their photos professionally done. I asked them a simple question and got their input and the results were not as surprising as I thought they would be. I kind of figured based on my audience what the answers would be. It is reassuring to know how the public views the topic, but also kind of discouraging (topic on self-perception). I will explain more on that topic in my final paper. This method of research is essential in the process because it offers the opinions of those not an expert in the field. It can help improve business for photographers as well as offer insight to how the public perceives their photographer and other artist’s works.

          I then reached out to several lawyers to try and get a professional opinion and an accurate representation/interpretation of the laws set in place for IP and contract violations. I respect the legal field and all that their careers entail, but I think some of them were being a little stingy on their answers. I eventually found a wonderful, highly successful lawyer to speak with about the topic. His name is Geoffrey Hall. He has been in the practice since 1988 conducting business in partnership with other lawyers and then forming his own private law practice in Blair, Nebraska. He now serves as a judge on the District Court in the 6^th Judicial District. Because he does not currently practice as a lawyer, he was able to fully answer my questions in depth. I think it is important to get the legal side of the topic under my thumb before moving onto the private small businesses and the publics opinions. 

          So here lies the question. How do photographers keep their businesses safe and up to date in this new age of growing social sharing?  Why do people assume photo services and the product of such work is free? And the big question, why are clients violating contracts and putting themselves in potential legal danger?

          I want to begin by explaining how photography has impacted the world. This will give a clearer idea as to why it is so important. Photography is probably one of the most important technologies we have created, in my opinion anyway. Photography is a testament to what has happened in the past and present, capable of making people aware of the world in which we live. Whether it be for personal use, a business, newspaper, or for a larger purpose, like documenting for National Geographic, photography has been one of the primary resources in our lives for hundreds of years. Think about your textbooks. Since you have been in school, we have learned from books with photos. Remember going through them and finding the strangest looking person and whispering to your friend “that’s you…”. Or seeing photos from WWII for the first time? That’s some crazy stuff. It’s a source for education. Think about the magazines you read… do people still do that? FULL of photographs of celebrities and food and beautiful paradises. It’s a source for entertainment. Think about your family. This one really hits people in the feels. Can you even imagine a world without photography? How many times do you go back and look through old photos with your family? We all have that one album. Looking back at photos of those that have passed or reliving an amazing family vacation. Or think about those kids that have lost a parent or sibling. Those that are too little to remember. Maybe that’s you. Those photos are so very important to them. So, as we can begin to see, photography is a part of our everyday lives and is so important. It has a huge market and need in past societies and in society today. We need to protect this!

          It’s often hard to tell who truly appreciates photography with a deep, fiery passion. And those that see the need to protect such an art are those that choose to live everyday producing and creating and interpreting through the medium. They see the importance that it has to families, history, businesses, and so much more. I did some research by Facebook staking and having conversations with three photographers. One just starting out, one on the rise to local fame, and one well known around the great city of New Braunfels. One thing that I noticed is how truly passionate they are. All their posts on Facebook reflect their purpose. Why they do it, how it makes them feel, their excitement, their love for other people. A. Leigh Photography, a personal favorite of mine, shows true passion and hard work. She does so much for her community and does it with love. She is a newborn/baby/family photographer and it suits her well. No Limits Photography, senior/family/wedding photographer, shows her passion through sharing only her best works. She posts not as often, but it still shows her passions and her purpose. She is on the rise and people are loving her! Now a lesser known local photographer, owner of Free Spirit Photography, she is shy and doesn’t post very often at all. Despite all of the concerns of her clients, she still does her work with passion. She is a family/baby photographer and I think it suits her well.

          After these introductions to their individual businesses, you would think they were such complete opposites from one another. But, after I added them all in a group chat (*gasp* adding the local competition in a group chat???), I discovered that they weren’t all that different. They all go into the day with the same mindset. Capture and preserve memories for their clients. They each love their field of work and understand the importance that their work is doing to so many people. Once I got the conversation going, I asked them all seven simple questions.

1.   Do you have a contract?

2.   Do you feel the wording is fair for the clients understanding?

3.   How did you build your contract?

4.   On average, how many contract violators do you get?

5.   What is the most common contract violation?

6.   How do you handle the violation?

7.   Have you personally edited photos you’ve had professionally taken of you?

And soon they all discovered that they weren’t so different after all. They all enforce their mandatory contract and they all have very similar problems. The public assumes photos should be cheap, or better yet, free. And they all have had people violate contract.

          Here lies the debate on how should you handle it? They all stated that they all had written their own contract. They each developed them based on experience and what best suits their businesses. Through trial and error, they added things slowly to build the best version for the bettering and protecting of their business. They also added things to their contracts based off of what other photographers have had to deal with. The photography community is very helpful and wants others to succeed. There is a photographer for everyone’s style and they all care about protecting the others arts/business. Each photographer also stated that they feel their contract is easily understood by the layperson. That there is no room for misinterpretation and no room for loopholes. No Limits Photography stated that “for the most part [people understand the workding]. I get some questions on wording for some things, but I always further explain to make sure it is clear.” In the beginning, they were all very certain that the contract would protect their work and that people would follow and abide by their contracts. But, as with all businesses, they would soon find out this is not true. People will naturally find ways to get around the contracts they sign. They want to think that the photos are their property once they are delivered to them and that they can do as they please with them once they are in their possession.

Social media has greatly changed we way photographers must conduct their businesses. Clients see social media as a platform for self-expression and as a way to share their favorite photos with friends and family. Platforms such as Facebook and Instagram are just so enticing to people to edit photos. All the filters and text and stickers are too hard to resist. Even after a contract has been signed. Even after they hired their photographer because they liked their work. As photography businesses grow, the number of contract violators grew. More often than not, they find clients posting edited versions of their finalized work being posted to Facebook or Instagram. This phenomenon is one of the most common involving social media and photography. So, if contracts are signed and the rules are fully understood, then why do clients still post altered versions of their professionally done photos?

          Not surprisingly, most of the editing is done by the younger generations whose presence on social media is more prevalent than the older generations. I put up a Facebook poll and asked my friends list if they had ever edited photos of themselves that they had professionally done. The results came out to be 33% yes (they have edited) and 67% no (they have not edited). And of these results, those that said ‘yes’ were other photographers (a big shock to me) and those that seemed to be a little more insecure on the way they look in photographs (I know this because they are my own friends). Those that voted ‘no’ were other people in an art field and those that are not on social media a lot (the older generation). It seems to me that contracts were out of the question. Even if a contract was signed, people still experimented with the editing of the photos.

          I want to address an important topic that lingers in the minds of people all over everywhere. Self-image. When people post to social media, they are mostly concerned of what others will think of them. This goes back to my poll. Those that voted ‘yes’ changed their photos because of the way they thought they looked. A filter might make them look better to themselves. As a culture, I think we rely on social media editing tools to change us. Like when a client asks a photographer to make them look skinnier or take away those wrinkles or make my eyes more blue. We all have different things we don’t like, and hen given the tools to instantly change them, why shouldn’t they go for it?

 In an article written by four authors, it states that “There are a lot of cases when users prefer to share the photo without filtering it. A few the participants mentioned that the practice of applying takes times and effort and so they do not always want to put the effort into filtering their photos. These set of users only filter those photos that they think are worth the effort. Photos that have special people or subjects in them are among those.” (Bakhsh 6). With this in mind, I got very curious as to how many of my friends choose to filter their photos. Many of them, like the article stated, filtered photos of themselves, alone or with other people, and not of things or animals or places. It is crazy to have not noticed this, I am sure many of you have not noticed this, but as a society we all participate in this act. It is a matter of how will I look to others looking at me. Other photographers, I am sure, are very aware of this and have learned to adapt their editing methods and they have certainly, as I have discussed, changed how they have written contracts. Nevertheless, following contracts still has a lot of legality behind it.  

When I began thinking about all of the legality stuff behind contracts and IP laws, I really wanted to get a professional’s opinion. After speaking with photographer about their own contracts and their violators, they all seemed to not know how to handle any violators or how to deal with those that assume photos are free. The answer that they all gave? “I ignore it”. Or my personal favorite from No Limits Photography, “I just let them because I’m a wimp”. When I got in contact with a lawyer willing to speak with me, I asked four simple questions regarding business and contracts. These questions cover the basics of rights and ownership and what to do when a contract I violated.

1.   For a photography business, does it matter if your contract was written by a lawyer, or can the photographer/owner write it to be best fit for the business?

2.   What is the general rule of thumb regarding copyright for photographers?

3.   Who has the rights to the photos once delivered to a client? Must you state this is a contract?

4.   In regard to posting on social media, many photographers contracts state that the client cannot alter the photos in any way. If this happens when they post their photos, how should a photographer approach this? What can the outcome be if client does not abide by the contract?

Mr. Hall, a lawyer currently not in practice, informed me that a contract does not have to be written by a lawyer. The business owner has the freedom to write their own contract that best fits their business. However, it is recommended that each business get the opinion of a lawyer specializing in this. It helps to further protect the business. With this contract writing, it is the businesses responsibilities and decisions to enforce the contracts. When people are posting their photos online, it becomes another issue. “The general rule for a copyright of a photograph is that when you click the shutter the photographer owns the copyright on the photo created.” (Hall). Regardless if the contracts says so or not, the rights to the photo is the photographers. This leads to the question how is the violation to be handled? The first step should be to “warn the client in writing of the alleged violation. A common remedy is demand for the altered photo be removed from social media and to cease and desist from such further conduct. In order to enforce the contract a photographer may have to resort to filing a lawsuit against the client. This should be a last resort because litigation is often a costly endeavor.” (Hall). Although the “damages” of the lawsuit may be minimal, it still serves to protect the business.

Mikie Farias, a fellow photographer, said it best. “I have had clients [edit photos]. It does bother me but not enough to do anything about it. I would go about it in this way, if my photos and post processing then I would love credit or [to be] tagged in the post, if filters added and I don’t like it, then I wouldn’t want to be credited or tagged.” I believe this is an appropriate response to these violations. Warn the client to take it down of course, but if they refuse, and you do not have the means to file a lawsuit, why would you want your name attached to the altered photos?

A businesses reputation is what keeps people coming back for more and what encourages others to buy or use a business’s service. In the photography world, so much can be done to tarnish this reputation. Changing the way business is done has been very important these last couple of years with the rise in social media use. New forms of contracts are being made, the use of watermarks has risen, and the now more than ever photographers are doing IPS (in person sales) to minimize the number of digital photos put out into the world. Part of the change is how we as a society views the business and topic of photography. It has become so accessible that we seem to not think twice about it before we change things or how we speak to and respect the field. If we compare the “you get what you pay for” phrase to say, cars, then it can help to amplify the concept. You would definitely not get a Lamborghini for $5,000 or even for $10,000. Yet the public assumes that they should be getting their photos done for really cheap or for free. In  Facebook group I am a part of, many photographers get potential clients asking if they can just be models for portfolio building. The photographers just want to laugh in their faces! They have been professionals for 5, 10, 15, and 20+ years, their portfolios are plenty built. They ask for pricing and gasp at the number they are given. In a world where we seem to be getting a lot of things for “free”, I suppose people are expecting more and more to just be handed to them. I suppose people are always on the hunt for cheaper services and expecting the greatest quality, but we as a society need to remember that photography is a full-time job. You definitely wouldn’t choose the cheapest company to build your house.

Photography, for everyone living today, has been a part of everyday life. We see it everywhere we look and the uses and effects it has are limitless. As a culture, creativity and art should be something we would all wan to protect. Without the proper understanding of IP laws and respect towards the art, and without the understanding of the world the artists live in, there is a huge gap in the system. The layperson would not know or understand why these unspoken rules are important, so we should begin to be more open about the importance of the contracts we take the time to write. We need to be more open about the importance of the arts in general. I feel this is not a conversation that anyone really has until its too late and lawyers need to get involved. Social media has changed a lot of things about the world. It has changed the way businesses operate by opening up new ways of communication and interaction with their consumers. It has created a lot of concern for businesses as well. Copyright and “free” the biggest issue among photographers, but by educating and opening up the conversation about it can prevent the issues and protect the businesses before any issues arise.