Questions

One of the biggest concerns about me as a photographer is making sure that my work stays my work. I don’t want anyone to just randomly decide to take over my photography and pass it off as his or hers.  “A writer who can control, and profit from, artistic work will be inclined to produce more. If enforced oppressively, however, the copyright laws could stifle creativity by denying access to copyrighted work.” (Introduction to Business Law, Beatty Samuelson, p507). Concerning copyrights, I also need to know what the best course of action is when it comes to someone that violates my copyrights. “Online service providers (OSPs) are not liable for posting copyrighted material so long as they are unaware that the material is illegal and they remove it promptly after receiving notice that it violates copyright law.” (Introduction to Business Law, Beatty Samuelson, p509).

Another big concern of mine is the best way to structure my business. What are the true protections of an LLC? “Members are not personally liable for the debts of the company. They risk only their investment, as if they were shareholders of a corporation.” (Introduction to Business Law, Beatty Samuelson, p377) Are they hard or easy to set up compared to other forms of businesses? “In some cases, a court will 'pierce the veil' of a corporation and hold its shareholders personally liable for the debts of the business.” (Introduction to Business Law, Beatty Samuelson, p380)

And the final major concern of mine is basically how to handle model releases. I will more than likely not be working with many models, but when I do, I need to be informed on what potentially could happen if I am unable to procure a release from the model. I also wanted to know the ramifications of shooting an event, and when/where I would even need a model release form. 

1. If no model release is signed for a portrait session, and the client tells you a year later that they don’t want their photos used in your website anymore, do they have that right to dictate when/where their images can be used even though no model release form was signed?
2. Is it OK to photograph subjects at public events, such as festivals, parades, and rallies, then post them on an internet gallery for sale? I was thinking of taking photographs at a local festival, then selling them on my website. Is it OK to post photos on the net of people that anyone else could
3. Who owns the copyright if a client pays you to take the picture
4. Who owns the photo if my assistant/associate photographer takes the picture?
5. What does registering a copyright do for me?
6. If someone does sue me (or the LLC in this case) what could they get? If I distribute most if not all of the cash to myself during the course of the year, the business then really has no assets to get? Can they collect previously stated earnings?
7. Is my camera considered an "asset" of the business? I have a nice camera. However, I may use these cameras for personal use as well, but, is there a way to distinguish whether it is an "asset of the LLC" or a "personal" asset used in the business. I am just wondering if someone could take it in a lawsuit or something.
8. Is an LLC drastically more complicated to create than just a sole proprietorship? Are there any state reporting requirements other than filing?
9. Somebody infringed my copyright. What can I do?
10. What does a model release protect me from, and is it needed. 

Your Own Argument and Opinions

For the most part, I was very happy with the answers I received from James. He took the time to answer all 10 of the questions, and even researched the ones he could not answer right away. The down side to this was that he answered *all* of my questions. What I mean by that is that some of the answers were fairly brief and didn’t get into as much detail as I was hoping for. I’m sure if I could afford to ask him these while paying for his time I would have received a much more expansive set of answers. “Of course, this lawyerly protection comes at a cost—legal fees, time spent bargaining, the hours used to read complex provisions, and the potential for goodwill to erode during negotiations.” (Introduction to Business Law, Beatty Samuelson, p208). One of my questions was about the ease of forming an LLC compared to other forms of companies. He suggested that I visit the website for the Secretary of State for the information. “To organize an LLC, you must have a charter and you should have an operating agreement… It must be filed with the Secretary of State in the jurisdiction in which the company is being formed.” (Introduction to Business Law, Beatty Samuelson, 378). While not nearly the answer I was hoping for, it still gives me a good place to start my search for information if/when I reach the point where I do need to form an LLC. Overall I completely agreed with all of his answers, and can find no real fault in them.

Rule of law

One of the key points that James made was that whenever I am photographing a model, I should always get a model release form. “Do you need a written agreement at all? Oral contracts can certainly be successful, but there are times when you should definitely sign an agreement” (Introduction to Business Law, Beatty Samuelson, p207) I was informed concerning not getting a release form “Without releasing the rights in the first place, they stay with the model. There are defenses to this such as subsequent consent and allowing it to happen for a long time without objecting which falls under the legal term of ‘laches’ but those defenses rarely hold up.” “A moment's caution! Often that is the only thing needed to avoid years of litigation. Yes, the broad powers of a court may enable it to compensate an injured party, but problems of proof and the uncertainty of remedies demonstrate that the best solution is a carefully drafted contract and socially responsible behavior.” (Introduction to Business Law, Beatty Samuelson, p202). Concerning registering copyrights on my pictures, especially when dealing with models, I was advised by James “It protects your legal interest of ownership in the work and it can create a defense against certain claims by the models and/or their agencies.” “Today, a copyright is valid until 70 years after the death of the work's last living author or, in the case of works owned by a corporation, the copyright lasts 95 years from publication or 120 years from creation, whichever is shorter.” (Introduction to Business Law, Beatty Samuelson, p507). Concerning my assets like my camera, and if I should put them in the business as an asset or keep it as a personal one, he said “The decision on this would require fully advising a corporate CPA to get his determination on whether you would want to do so or not.” By doing this, I would best insure that I can protect myself and my personal assets the best possible way. When discussing LLC and the potential of being sued and what they would have access to, he said “You must be certain that you have treated the corporation as a separate legal entity and that it is not simply “your alter-ego” under the law.” “It has long been the case that, if corporate shareholders do not comply with the technicalities of corporation law, they may be held personally liable for the debts of the organization. As the following case illustrates, under these circumstances, members of an LLC are also liable.” (Introduction to Business Law, Beatty Samuelson, p380).

Reasoning of the Law

On several of the questions, James was taking the approach of what would best protect my interests. This was especially apparent when dealing with making sure that I have the legal rights to do what I want with my photography when dealing with people. “Businesspeople sometimes refer to their lawyers with terms like business prevention department. They may be reluctant to ask an attorney to draft a contract for fear of the time and expense that lawyers can inject into the process.”(Introduction to Business Law, Beatty Samuelson, p208). When it came to the LLC area of my questioning, concerning liability and how to allocate my personal assets once I do form an LLC, this was an area that he had to do some extra research about, so he could give me a concise answer. To do this, he didn’t give me an answer right away, but did research on those specific questions and was able to email me with either the answers he found in his research or the proper place to look for the information I would need to deal with the issues.  “Lawyers have a different perspective—their primary goal is to protect their clients by avoiding litigation, now and in the future. For this reason, lawyers are trained to be pessimists”. (Introduction to Business Law, Beatty Samuelson, p208) On several of the questions, he gave me advice to help best protect myself, or gave me advice on who to talk to in order to best protect myself, my assets and my business.