CHAPTER 18:

LAWYER JOKES: LEGAL ISSUES

It's fun to make jokes about lawyers — until you need one. Then the fun is over. The fact is that a good lawyer is like a good friend: You tend to take her for granted until you really need her.

A nature image by Jim Miotke.

COPYRIGHT AND INTELLECTUAL PROPERTY LAW

“The entire premise of copyright law is that if you don't give artists protection, they will have no incentive to create,” says business attorney Janet Boche-Krause. “Unfortunately, there is more copyright infringement going on now than ever before. The new digital technology just makes it so easy to copy that users don't stop to think, ‘Oh, is this a copyright violation?’ I am convinced that there are a whole lot of people out there who really do want to do the right thing and are not intentionally stealing intellectual property.”

Similar transitions affected the movie business, with the advent of VCRs; the mu-sic business, with the advent of CD burners; and the publishing business, with the humble Xerox machine. But there are still filmmakers, music CDs and books, and that gives me hope that photographers can ride out this transition, too.

A macro nature image by Lewis Kemper.

Just as the consumers of photographic images contribute to the increase in copyright infringement, so do photographers themselves. “You must be vigilant and informed as to the rights you are giving away agreement,” says Boche-Krause. “For instance, when you sign a usage agreement,” says Boche-Krause. “For in-stance, when you sign off on print rights, what does that mean? Perhaps you believe you're only selling the rights to paper prints, and the user believes he is buying e-print rights, as well. If the agreement is full of broad, all-encompassing language, the buyer might be right.”

Boche-Krause recommends making the agreement as specific as possible, such as, “I grant Doe Company, Inc., the right to use said images in this issue of this printed magazine.” That way, there is little room for dispute.

When there are no contracts, Boche-Krause looks for verbal agreements. “If there is no written contract, then we go back and look for what is called a verbal contract. ‘Okay, I'll shoot these dog treats for you and you can use them in your dog treat brochure,’ is an example of a verbal agreement. It can be very difficult to go backwards and piece together a verbal agreement. Get it in writing.”

If someone violates your copyright: “Invoice them. Call them up and say, ‘My image ran in your magazine on such and such a date without my permission. Normally I'd charge you $300 for this, so I'm sending you a bill for $300.’ Since most people want to do the right thing, you'll probably get results this way,” says Boche-Krause.

If the client is still uncooperative, Boche-Krause suggests you “let them know you'll need to address the issue of their copyright violation,” she says.

When someone uses your work without your permission, it's easy to feel violated. But you should always try to negotiate some resolution. Litigation should be a last resort. As Boche-Krause says, “It's very expensive to sue and win. And winning the case and collecting your winnings — which may not even cover your court costs — are two different issues.”

Most clients don't sneak behind your back and steal your copyrights — some of them just try to take them up front.

“It's certainly become more Draconian,” says Beth Wald, mountain-climbing shooter. “It used to be that most magazines were small companies with whom you could trust a gentlemen's agreement. But, today, most magazines have been bought by huge corporations. There's less personal responsibility. Some magazines will try to get you to sign away your copyrights after you've already been given the assignment, and some will even try to make this a condition you have to meet in order to get paid.”

These tactics are largely illegal, but obviously they work some of the time or magazines wouldn't be employing them. When in doubt, contact your attorney before you sign.

EMPLOYMENT LAW

Whether you hire independent contractors or permanent employees, there are important tax and legal implications to consider. To start with, you need to know the difference between a contractor and an employee. An employer's obligation to an employee is greater than his obligation to a contractor. You may have someone working for you who you believe is a contractor, but if this is ever disputed and the state decides that the individual was actually an employee, you may be liable for taxes, penalties, unemployment insurance, worker's comp and more.

Even if you have an employee and you both know he's an employee, there is still the question of what type of employee he is. Different types have different rights under the law. Is he fulltime? Part-time? Temporary? Seasonal? Hourly or salaried? The category into which he falls will determine if or how much paid time off, medical coverage, overtime and other perks he is entitled to by law. For instance, you are not required to pay a salaried employee overtime. However, you also cannot require this salaried employee to work certain set hours. He is supposed to be able to get his job done and receive his set pay whether it takes him twenty hours a week or eighty. On the other hand, you are required to pay an hourly employee time and a half for hours worked over either 40 or 48 hours in a given week, depending on the size of your gross — except on Tuesdays during a full moon if you twirl three times and spit over your right shoulder.

All this sound confusing? And that's just the tip of the iceberg. Yes, if you're diligent and know what questions to ask and are willing to wait on hold for hours at a time, various government agencies can answer your questions regarding employment issues. But in my experience, it's easier, faster — and if you factor in the value of your own time — cheaper to consult a business lawyer.

Your friendly neighborhood attorney can provide you with a boilerplate employment agreement or customize one as needed to reflect your situation. He can provide you with incomplete agreements in which you fill in the specific details. These little documents can be very important to photographers who are hiring other photographers. He can help you determine what category of contractor or employee you can/should hire for maximum profitability and minimum risk. He can also help you avoid potential lawsuits by advising you on how to handle interviewing, hiring, disciplining and firing employees.

PROTECTING YOUR NAME

Some photographers neglect to protect their business name, much to their detriment. Perhaps they don't understand the necessity, or maybe they simply don't want to spend the money. While it isn't cheap — the name search alone (to establish whether someone else already owns the rights to the same or a similar name) runs about $400 — it's money well spent. Protecting your name from the start will save you issues in the future if someone infringes on your rights. If you have legal documentation from the start, it's much easier to prove your case. Plus, if your business name is registered, other businesses — if they're doing their research — will be less likely to chose it in the first place, eliminating the need for an argument.

HOW TO FIND THE LAWYER WHO'S RIGHT FOR YOU

Like photographers, lawyers can be very specialized or maintain more general practices. What type of lawyer you'll be most compatible with is something you need to explore for yourself. Take a look at the specific needs of your business and think how you want your relationship with your lawyer to function. Then ask around for references and research the lawyers in your area.

I once had different lawyers for trademarks, employment law, tax law, real estate law and corporation partnership issues. I now have one lawyer who handles 95 percent of my legal work. If I have an issue that is outside of her specialty, she refers me to someone else, and I've always been happy with her colleagues. Her philosophy and her approach to my legal issues are practical, straight-forward and firm but noncombative. She saves me money rather than costing me money. I have not always been this lucky.

An architectural detail by Kerry Drager.

The first attorney I used for employment law was with a huge firm that had a great reputation. He most certainly knew his stuff, but dealing with a case of employee theft cost me $8,500 — slightly less than the employee absconded with. When I questioned his bill, he immediately knocked $1,000 off of it. Maybe I'm perverse, but this made me feel less trusting of him, as if he were padding the bill and chalking the effort up to the “you can't blame a guy for trying” school of thought.

Then when I asked him for a basic, generic employment agreement, he fired off an eighteen-page document. (No, I'm not exaggerating.) It certainly didn't fit what I needed for my business. If I were a potential employee I never would have signed it, so I couldn't in good conscience ask my potential employees to sign it.

While the big firm legal eagle was not a good fit for me, I stayed with him for a number of years because I didn't realize there was anyone out there who practiced law differently. It wasn't until I worked with my second lawyer on employment issues that I realized lawyers are as different as snowflakes. Do a little shopping around, and you'll find one who's right for you.

A war photo by Stormi Greener.

TAX LAW

A tax attorney is the specialist you consult when choosing what type of entity your new business should be. (Your CPA can assist you here, too, see chapter seventeen.)

And if you're ever audited by the IRS or the sales tax division of the state in which you live, you may want to consult this specialist — even if your nose is clean! It's nice to have a professional advocate when you're venturing into an area in which you have little or no experience, especially when your money is at stake.

REAL ESTATE LAW

My first three studio leases I signed without the benefit of consultation with a real estate lawyer. I lucked out: My landlords were fair, the lease agreements were standard and relatively easy to understand, and they were based on rent per square foot plus CAM (common area maintenance) charges. Whenever one of them came up for renewal, there was a reasonable percentage increase that reflected the state of the market, and I signed again, and that was that.

But then lease number four came along. This landlord was considerably more ambitious. He wanted major concessions I'd never heard of before: a deposit and a personal guarantee, a percentage of profits (not an uncommon practice for landlords with properties in very trendy, high-traffic locations), the right to enter the premises and examine my books at any time, and the list went on. My initial response was to stomp my foot and walk away. But the space in question was perfect for my studio — it needed hardly any build out [remodeling or construction.] And the location was primo. So I was stymied. I finally consulted a real estate lawyer who assured me that while the lease was heavily weighted to benefit the landlord, the terms and dollar amounts were not unreasonable for this prime retail location. He recommended a few changes (the deposit or the personal guarantee, not both). I signed the lease, and all is well. Yes, it cost a couple of hundred dollars to have the lawyer read the lease, but it saved aggravation and worry. So whether you're renting or purchasing your own commercial property, a visit with a real estate attorney can grant you great peace of mind.

PONYING UP

There are as many different fee structures for lawyers as there are, well, lawyers. Most charge by the hour, with rates ranging from $100 to $700. Generally lawyers with the big firms charge the highest rates. You can usually find excellent lawyers in smaller or solo practices who charge less. As with other expenses, fees tend to be higher in bigger cities. Lawyers with a particular expertise may charge more than general practice lawyers. Make sure you're clear on what your lawyer's fees are and how they're billed so you can make sure they're manageable for your business.

WHEN TO LAWYER UP — AND WHEN TO GO IT ALONE

We tend to glamorize the “Little guy all alone against the big guy” approach to life. We love the idea of a lone photographer going into court, facing off against a big ad agency and winning the case. I admit I know a couple of photographers who have done just that. But generally, if you're going anywhere but small claims court (where you're not allowed to bring a lawyer), I personally believe you're doing yourself a disservice by not having professional counsel. A photographer going into civil court without an attorney is a lot like an amateur with a snap-shooter trying to take professional portraits. Quite frankly, if I were a judge sitting on a case where one of the parties showed up without representation, I would think said party wasn't taking the proceedings very seriously. If you do decide to represent yourself in court, either due to financial necessity or personal choice, take time and make an effort to prepare yourself. Learn the court rules and procedure — you can get information on these from the court clerk and from the Internet. Don't hesitate to ask questions in advance. Bring your evidence and witnesses, and be ready to explain your side of the story clearly and succinctly. Stick to the legal issues, and check your emotions at the courthouse door.

Many legal issues can be settled out of court. I've discovered that a letter from my lawyer gets a quicker and more desirable response than a letter from little ol' me, especially when the topic is copyright infringement or uncollected fees.

Now that I have an attorney that I like personally and professionally, I find lawyer jokes a lot less funny. So hold the humor and find a good generalist with a small — even a one-horse — operation, who can help you with your day-to-day business issues and point you to a specialist for those occasions when it's called for.