This is What to Include in Your Birth Photography Contract (with TheLawTog® Rachel Brenke)

Does the legal side of business overwhelm you? Are you confident your contract would hold up in court? What would happen to you, your business and your client, if your images were stolen and used without permission? If you don’t feel good about the answers to those questions, then this podcast episode is for you.

These topics can feel heavy, but my guest today, Rachel Brenke of The LawTog® is breaking down these complicated topics into easy steps, so that you’ll walk away with a clear picture of what to do next on the legal side of your business.

Meet Rachel!

Rachel Brenke is the owner of The LawTog®. She is an active practicing lawyer for photographers and also a multi-industry business owner and photographer. She immensely desires for all the photographers who desire photography to not only be their passion, but their profession to be legally protected and she believes that legal protection helps each individual photography business and the industry as a whole.

Currently, Rachel is also working on her dream of getting her private pilot’s license and competing for Team USA for Triathlon without sacrificing her time for her husband, five kids, and three dogs!

Rachel started out being an entrepreneur after realizing that she wasn’t fit in a 9 to 5 job. Even without a business background and while undergoing cancer treatment, she started an online apparel business with a hope to accomplish her goals to have a real business and a real life spending more time with her family.

“Transition from there, I realized, I didn’t know how to run a business. And at the time there wasn’t a lot of information. So I moved into doing business school, got my MBA, and then went into law school. And somewhere around that time, I also started doing photography full-time and then by the time that I graduated law school, I combined it all, and The LawTog® was born!”

Legal Tools You Need To Set-up in Your Photography Business

If you are a photographer and you have really good intentions for your business, you want to set it up in the right way – professional and with the right legal tools (like contracts) in order.

But before we go to knowing the things that you need to set up in the legal side of your business, let’s first take a look on this common mistake that photographers make in doing so!

//Photographers invest in education and gear, but miss out investing on preventive measures for possible issues that would come up in the future.

“And I just find that, we get into business, and many times it’s just us, right? Whether we’re looking to go full time or we’re just trying to make some extra money to help support our family or for fun, we’re trying to do all the things – learn your camera, do the marketing. And so what I like to do when it comes to the legal side is to look at ways that I can prevent issues, so that you’re not having to clean it up later, because that’s where the stress comes in.

That’s where the money comes in that you’re not spending on fun things like props, presets, client gifts, or furthering your education. It’s spent on lawyers and trying to clean up stuff and clean up issues that you could have prevented.

And I can’t even impress upon you to think about how you can prevent issues because cleaning them up takes you away from your business. Every minute you’re stuck talking to me, a lawyer to clean up something, is another minute you’re either not working on your business or living the life that you want to have, which really is kind of the end goal of being a business owner working for ourselves.”

According to Rachel, here are 3 main buckets that you need to consider having in your business to prevent needing to hire a lawyer to clean issues up:

1. Legal business set up
“Making sure we check all the boxes of all the legal requirements. At a bare minimum, the only real required things that most states have (this is US-based, general info) is pay your taxes and get a license if you need to have one.”

2. Contracts
“And that is really honestly what I’m known for, because I preach on them so much because not only do they prevent issues by legal protection, but it’s expectation setting with your clients. It’s like one central point that you’re educating your client on what your processes are, what you’re going to give them, what they’re required to do.

And I just love the way that contracts really cannot just legally protect, but they build your confidence as a photographer and it builds the confidence of your client, who’s getting ready to spend money on you, especially for this type of photography.”

3. Copyright
“This is the ownership of photographs, making sure that we can control who utilizes them, who reproduces them, and et cetera.”

And so legal business set up, contracts, and copyright are kind of the three big ones. There’s a lot more under each of those, but that’s a good starting point if you’re just brand new.

Choosing a Business Entity for your Photography Biz

Rachel shared that in choosing a business entity, you want to think about protecting yourself as much as possible. She said that one variable that we cannot control in life are people.

//We want to separate as much as possible because when an issue happens with a client, you’re not going to prevent everything.

Choose Limited Liability Company (LLC) over Sole Proprietorship

Majority of photographers that Rachel had already worked with are best suited for a Limited Liability Company (LLC) structure. The biggest benefits of choosing LLC over Sole Proprietorship are:

  • Upkeep is easy with a reasonable monetary investment
  • LLC helps separate your personal and business assets

“It helps us separate your personal from your business assets. So if there’s ever a problem, your clients can only touch the business assets side and not personal stuff.”

What if you chose Sole Proprietorship over LLC?

In being a sole proprietor, Rachel advised that you should have the following in place to give your business layers of protection:

  • Contracts
  • Entity
  • Liability Insurance

“To your point about being a sole proprietor, I have never recommended a structure of be a sole proprietor and just have liability insurance or be a sole proprietor and have good contracts. I want you to look at having all three, it’s the little legal triad – contracts, entity, and insurance – because they all work in different ways.

Insurance are never going to cover everything. Your contract’s never going to cover everything. Visualize it as hurdles between you and your client. And you know, not only the expectation setting and information, but from a reactive point, whenever there is a legal issue, these are hurdles that your client would have to get through before they can touch you personally.”

In choosing between LLC and Sole Proprietorship, Rachel advised to choose LLC.

“So bottomline, LLC is pretty much always the best option if you’re like a solo photographer. If you’re looking at having business partner or investors or some more of a complex type of structure, Corporation is really going to be your better option. But I don’t typically see that a lot with majority of portrait photographers that I work with.”

How to Ensure You’re Running a Legal Business?

People think that they have to be an LLC in order to start their business. But according to Rachel, your entity is an additional piece of protection for your business. Just like you don’t have to have insurance to be a business or have contracts to run a business.

According to Rachel, the following are the only things you need to do for your business to be legal:

  • Pay your sales tax (depends on state requirements)
  • Pay your income tax (depends on state and federal requirements)
  • Get a Business License (if your jurisdiction requires it)

“Generally speaking, there might be some exceptions, but all the other things like LLCs, contracts, insurance, copyright registration – all of that are just good tools to have to prevent issues, set expectations, or forge you additional legal protection. But you’re not an illegal business if you don’t use a contract. Do I think you’re unprotected business? Definitely.”

Is it Advisable to DIY Your Photography Contracts?

The short answer is no. Contracts that are drafted by lawyers are still better than DIY contracts.

It is valid for new photographers to delay their investment with their contract. It is understandable for new photographers and business owners to invest in further education, gear, softwares, and the likes, especially in the early phase of business.

//However, Rachel discourages photographers to put aside investing in lawyer-drafted contracts specifically made for you because of the reason that “legal issues probably won’t happen to me.”

“The mindset that you just outlined of like, “It’ll never happen to me” is one of the most expensive mindsets you can have. Not doing the legal protection things you need to do can cost you time, money, and energy because you are going to be spending more to clean up an issue.”

$500 Contract vs $10K Clean-up

Rachel shared a story of one of her clients who chose to DIY their contract than pay $500-$600 for The LawTog to support them.

“Fast forward, nine months after they inquired, they had DIY-ed their own thing, their client is pursuing them. So we ended up having to go to court. And of course, what did this person say to me on the phone? ‘I never thought it would happen to me.’”

What ended up happening for the client was that they spent $10,000 for the court proceedings, $500 for a lawyer-drafted contract + all the time, money, and energy away from business.

“I get it. Like when I started my business, I didn’t have two nickels to rub together. I get not having the money. But I would encourage you, look at the minimums that you need to get your photography business started and then start investing as you’re making money. And think about the money with the contract.

Friends, it’s not throwing a text on a piece of paper. There’s an art form, there are contract principles, there are state laws that we have to look at.”

Dealing with Law Suits with a Legally-Sound vs DIY Contracts

Hiring a lawyer to draft your contracts for you makes a difference than doing the contract by yourself. Rachel shared that one of the key things they include in LawTog® contracts is a Prevailing Party or Attorney’s Fees Clause.

“There’s this misnomer that if you go to court and you win, the losing party pays your attorney’s fees. And that’s not the case when it’s a pure breach of contract type claim like this is and most photographers have, you’re stuck with the bill. My client was stuck with the bill and because it wasn’t in the contract. Had it been in the contract, we would have had a $10,000 claim.”

Protecting Your Photographs with Copyright Registration

So far we’ve discussed how having some legal tools set-up could protect you and your business from legal issues. Now, let’s talk about how to protect your artwork or photographs from third parties who might take interest and use them without permission for their gain.

Apparently, Rachel mentioned that Copyright Infringement is one of the main cases that her firm takes on.

“These large corporations troll around Instagram and Facebook. They’re taking photographs off and they’re using it on their website, on billboards, on physical marketing materials, on their Instagram, on their TikTok, and further inside their own business. We’ll use the copyright holder are in a position, just like with the contract situation, if you’re going to pursue one of these infringers and you haven’t done a registration, you, the client, you, the photographer is on the hook for all that money.”

//With this, Rachel encourages photographers not just to have good, lawyer-drafted contracts for your clients, but also to consider and include copyright registration in your workflow.

“I get it – we take so many photographs and it could be cost-prohibitive, especially if you’re starting out. So I would recommend starting with photographs that are the key ones, that are on the splash page of your website, on your business cards, ones that you routinely use on advertising or on Instagram. Ones that are really kind of your best work that you’re trying to lead and gather clients from, that’s where I would start with the process. ”

The Benefit of Copyright Registration

Another benefit of Copyright Registration is the added value of protection to your clients.

“It’s a service not only to yourself and your photography, but it’s a service to your clients because you have to consider, let’s say that you photograph my birth and you retain the copyright of the photographs. And all of a sudden, the photographs of my birth end up on some skeevy website. Who am I going to come to, as the client, when a photo with my face and my other bits are showing on some skeevy website?

I might have some publicity rights to get it taken down, but publicity rights are a state rights. They’re not really as strong as like copyright. Copyright is federal. So I’m holding to you as the photographer, even though I’m in the photo, to do all the things to protect and set it up, so you can protect me, preserve our relationship, and get the photograph taken down.”

Setting up a Copyright Registration for your photos is a great way to go the extra mile to make your clients feel secured. If you’re interested, you may visit this website for more details!

What Makes Up a Birth Photography Contract?

In The LawTog®, Rachel shared that all photography contracts cover each event from the moment the client booked until the delivery of the product/s – how do the booking process go, what happens after client booked, what will be the flow of the sessions, cancellations, reschedules, etc.

//However when it comes to Birth Photography contracts, there are added considerations – the on-call time, future meetings and communications, contact points, the time of arrival during the birth, back-up photographers, and more – detailing specific obligations of the photographer and the client.

“I also always look at what are the more sensitive types of photography. Meaning not only how the client may feel more sensitive to what is being photographed or what’s being shared, but how do we handle it? And birth is one of the top 3.

For this, we’ve got an added level, depending on what type of birth you’re going to, just like you mentioned. So having a General Liability Language is so incredibly important. And just like the example I gave earlier about not including Attorney’s Fees, if you’re not an attorney, you’re not going to think about what is the specific language you need to have for all of these things.

And you don’t want to be on the hook where you’re going to have to get back to your client all their money, especially if you’ve been on-call simply because the contract was written incorrectly.”

Why Invest in your Birth Photography Contract?

Having a good Birth Photography Contract will definitely protect and set expectations between you and your client. But did you know that I can also help you earn more for your business?

“Not only are contracts legal protection tools, but they’re also buyers’ confidence building tools. The more questions clients have to ask or they’re unsure of the process, whether they realize it or not, it’s wearing their confidence down, it’s decreasing their confidence in you.

Oftentimes, legal issues don’t arise from one major thing. It’s often a bunch of little things that affect buyers’ confidence over time. And if you have a contract, it sets expectations, it builds the buyers confidence, it keeps everyone on task, so you have a successful relationship.”

Disappointment is unmet expectations. And so having a solid contract builds that trust, like Rachel said, reduces the chances that someone is going to be disappointed, which in turn, they didn’t like their experience, they’re less likely to refer you, maybe even had a negative experience.

Should Photographers Go Through the Contract with their Client/s?

This could be an important step to minimize the possibility of clients missing out some details in your birth photography contract. However, according to Rachel, it depends on you, the photographer, if you want to hand-hold and guide your clients, which could be a good add-on to further build buyer’s confidence.

Though it is true that your clients bear the responsibility to read and understand the contract, Rachel highlighted that you need to remind them of the important things at least three times.

“However, when we’re leading the clients, I always look at the really important things that I want them to know at least three times. And one of the tools is a contract, the other tool is the way that I communicate with them.

So for example, when you’re asked, “Were my photographs going to be ready before the session’s even over?” So you put that in your contract. Hopefully they read it. But you’re going to reiterate it again in your communication.

So that’s time #1 is the contract. At the end of the session, maybe like when you’re cleaning up, putting your lenses away at a birth, “Oh hey by the way, Janie, congratulations, Sally’s so cute. Your photos will be ready in 21 days.”

And then when you leave, send an email also expressing your appreciation and reiterating the 21 days again.”

Do you have to remind your clients on every detail? Definitely not! Rachel advised that you determine what the friction points are – these are things that if left unanswered or left un-reiterated to a client will decrease their buyer’s confidence.

Thrive in Your Business

To conclude, working with credible professionals in setting up the legal side of your business is incredibly recommended! If you have the capacity, this is a good investment to consider for your business to thrive.

“Law is not just what’s written on paper. There’s always other strategy things and ways that you can leverage people that have wronged you into settlement that’s best for you.

And I think that’s why I take a lot of pride in what I do because there are other contract shops out there, but I also know that many of those are just contract shops, they don’t litigate. They don’t stay up to date. They don’t do intellectual property. I think it’s incredibly important not only in a legal business set up contract, making sure we really understand how to work with our clients and what we’re selling, because that’s really the only way on the legal side that we’re going to be able to thrive and continue.”

Next Steps

I hope that you will take Rachel’s advice and you will go back and listen and make some next steps for yourself. Like I always say, how would you treat this podcast episode if you had paid for it? If you had paid $20 or $100 or $500 to listen to this episode, how would you show up for yourself hearing this information? Because this information truly has the potential to change your business and to not only protect you, but to make you money doing some of these things.

If you want to check out Rachel’s contracts, we are going to list everything that she mentioned in this episode in the show notes. And we also have a coupon code for 10% off any of her contracts. And that code is in the show notes as well.

My friend, thank you so much for making the time to listen to this episode. And remember if you have a passion, it is not an accident because not everyone loves the thing that you love. So whatever your passion is, it’s there for a reason. And I hope that you will get out there and make it happen.

Have a great week!


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