Nicole Begley (00:00)
In today's episode, I am chatting with Rachel Brenke from the Law Talk and we are talking about all things legal. Now, before you tune out and say, my gosh, I don't want to talk about legal stuff, we have to. And I promise we're going to make it fun. And there should be hopefully some laughs in this conversation as well. We're going to be talking about what you need to do to legally get your business set up to make sure even if you guys have been in business for a while, make sure you have these things in place. We're also talking about copyright and trademarks.

And we're talking about what the world of AI copyright looks like right now and how quickly that is all changing. So stay tuned.

Nicole Begley (00:39)
I'm Nicole Begley, a zoological animal trainer turned pet and family photographer. Back in 2010, I embarked on my own adventure in photography, transforming a bootstrapping startup into a thriving six-figure business by 2012. Since then, my mission has been to empower photographers like you, sharing the knowledge and strategies that have helped me help thousands of photographers build their own profitable businesses. I believe that achieving $2,000 to $3,000 sales is your fastest route to six-figure businesses;

that any technically proficient photographer can consistently hit four figure sales. And no matter if you want photography to be your full-time passion or a part-time pursuit, profitability is possible. If you're a portrait photographer aspiring to craft a business that aligns perfectly with the life you envision, then you're in exactly the right place. With over 350,000 downloads, welcome to the Freedom Focus Photography Podcast.

Nicole Begley (01:38)
Hey everybody, welcome back to the Freedom Focus Photography podcast. I'm your host, Nicole Begley. And today I have a special guest with me, Rachel Brunke from the Law Talk, the one and only, the original, the best photographer's lawyer around. So Rachel, welcome back to the podcast.

Rachel Brenke (01:54)
Thanks, Nicole. I love coming on this one, so I'm excited that you guys had me back.

Nicole Begley (01:57)
Yay, of course. Yeah, I love chatting with you. Just so many good things. And I like to geek out about this kind of stuff. And really it's stuff that everybody needs and doesn't want to know they need it or doesn't want to like actually do anything about it. But it's so, so, so critical. So you guys, please keep listening. Don't just like to, we'll try to make it fun. We'll make it fun.

Rachel Brenke (02:19)
I'll say, yeah, we'll try not to make it too boring. And it's really not, because

trust me, when you have a problem, you're going to wish you had listened to this to avoid it.

Nicole Begley (02:25)
Yes,

exactly. Yeah. So I wanted to kind of maybe touch on like the main legal mistakes that people make because, know, it's so many people start to get into business. like, okay, I have a camera. This is fun. Let me take some pictures. And maybe it's just with friends and family. And then they start to be like, maybe I should make this a real business. And I think the, you know, because most of us are creatives where we don't want to do that. And even if you do love business, I love business.

But like there's certain parts of business. Like I just got my reminder for myself to pay my quarterly taxes and like those kinds of things. You're like, must I? But yes, we must.

Rachel Brenke (02:59)
Unfortunately, when that's always the thing is like, you know, so many clients come like I mentioned with problems. And it's either they don't know they don't know or just like what you said. And you know, when I got into business, I had other businesses before I was a photographer, then became a lawyer. I didn't know it then either. That's kind of how I developed into what I do now is because there weren't resources available. Yeah. And so there is a lot of information, but we're kind of going to want to like

Nicole Begley (03:03)
Mm-hmm.

Rachel Brenke (03:22)
drill it down for you all. And I've kind of formulated this into three to one. So the three is gonna be the three things for liability protection. Two is copyright and trademark. And one is marketing legalities. Now this is super high level, but it's a good checklist for you guys to have moving forward. I gotta get my little fine print. I am a lawyer, but I'm not your lawyer. This is general legal advice. But if you want me to be your lawyer, you can reach out we can do that and talk about it separately. But yeah, I think that the three is really the big part.

Nicole Begley (03:46)
Ha ha ha.

Rachel Brenke (03:50)
that many entrepreneurs, many business owners, not just photographers, really lack in those areas and those pop up as issues when there's problems, whether it's with clients, vendors, any business associations. And so these three for liability protection are gonna be looking at your business entity setup. So I'm US based, I'm gonna use the terms limited liability company or corporation. And two,

It's gonna be your business insurance. So this is like your liability insurance, including like cyber insurance since most of us are using websites, email marketing, et cetera. And the last one, my favorite, contracts. So those are the three key tools for liability protection that many photographers either know I need one of them, they don't really consider all three. And I use these in a variety of different ways, but really at the end of the day, it's to protect you from liability issues, prevent issues.

Nicole Begley (04:20)
WAH

Rachel Brenke (04:41)
And also just to be there as support like with contracts they can help communicate to your client, etc

Nicole Begley (04:48)
Yeah, for sure. I hear the question a lot of times of like, when do I need to start using a contract?

Rachel Brenke (04:53)
Now, yesterday. And actually, that's a really good question.

Nicole Begley (04:54)
So even when,

yeah, like is it even if they're just starting their business out and it's just like model calls? Yeah. ⁓

Rachel Brenke (05:04)
Yes, yes, yes, all the things. No, I think that's

a really good question. You say that because if you look at those three, you know, I put them in order of business entity insurance contracts. It's not necessarily in that order. We typically start with like LLC or corporation to get set up. Now keep in mind, there's no legal requirement in the United States for photographers to be any of those. This is a lawyer recommendation. There's no legal requirement to have contracts or insurance either. We're a pretty unregulated industry in that sense. But to answer the contract question, if you're one of those and you said it

because I was one too, setting up your photography business, you get a camera. And when I say set up, really you get the camera, start putting yourself out there and you're not really sure what you need to do. You don't even know if you're gonna be able to grow it. So I understand the whole idea of not wanting to invest a lot of time and money into business setup, into contracts, et cetera.

So even if you're not ready to go down the path of doing like a legal LLC or corporation set up Contracts should be number one and you set it like model calls the second that you're putting yourself out there You need to have contracts in place and I think a lot of times especially as creatives were like I don't want to like burden or Sully or like dirty the creative relationship with the clients when reality we have to remember

Nicole Begley (06:09)
Mmm.

Rachel Brenke (06:15)
It's us that has that creative perspective a bit more than our clients. They are still on the end of a business transaction and we use contracts all the time. I mean, right before I got on here, I got a push from another app asking me to agree to new terms. That's a contract. It's happening in everyday lives. And I think the biggest thing for me with contracts is that they're not just legal protection tools to help prevent issues. They're communication tools. And I was thinking about this as I prepped for this, this last year I've been going through a divorce and other life things have happened.

and

maybe in y'all's lives, had cancer at one point. And so we can get pulled away from what our normal.

This is our with clients and so the contract can be that communication tool for you and help alleviate some of that expenditure of your mental resource on it and it also builds up the clients confidence in you because the more times that client has to ask you a question When am I getting my photographs? How much do I owe you? When do I owe you? Etc, etc We're actually psychologically tearing down that consumer confidence in that client without realizing it and as his photographers were re battling the world of iPhones AI which will probably

probably get into. so contracts, just, yeah, you see why I get so excited because I just see contracts as like multifaceted and like the they're the easiest first legal tool that you really can get under your belt with so many benefits, even if you're not going to do this full time, you're not making a lot of money yet. Or you don't even really know where the business is going to go.

Nicole Begley (07:24)
Bye!

Yeah, no, hundred percent. agree with that. And especially that just that starting out, just that, liability protection of who knows what's going to happen, especially a lot of my audiences, dog photographers, equine photographers. So like you're working with animals. They're unpredictable. What if somebody gets hurt? just where we live in a, a very, I can't say it litigious, little litigate. How do you pronounce it? Litigious. Okay. ⁓

Rachel Brenke (08:02)
Litigious society. Well, and even if someone's

not gonna file a lawsuit when I say issues coming up It can be as simple as a client is confused and it breaks down their confidence It could escalate to a potential back and forth because they're unhappy about some escalating to maybe a demand letter from their own lawyer It doesn't have to be a lawsuit in order for there to be issues that a contract could prevent or cure

Nicole Begley (08:07)
Yeah.

Yeah, that's true. and I know that I have done this too, as like random little issues pop up in your business, you're like, let me add that to my contract. let me add that to my contract. Because sometimes I think people feel so overwhelmed by it. They're like, I'm not a lawyer. I don't know. Where do I even start? And really just start. There's so many resources. You have resources. There's resources out there on the internet. Just like put something together.

Rachel Brenke (08:36)
Thank

Mm-hmm.

Nicole Begley (08:53)
⁓ What

are the most important pieces in a contract? Probably the limitation of liability, a copyright notice, and then like kind of your terms or what's going on, like the rules of your business essentially.

Rachel Brenke (09:03)
Mm-hmm.

I'll answer that I do want to touch on one thing that you just said and we didn't plan this here But it's this is incredibly important with contracts They're a living breathing document just like your business as a living breathing thing that's gonna change and grow as trends change consumer patterns change We don't know what's going on in the economy in the world As your policies change you want to make sure that you are keeping track of the top questions that your clients

Nicole Begley (09:07)
Yeah.

Rachel Brenke (09:27)
send you and it could even be potential clients. So you can use this framework also for like your marketing and your website. I do this in all facets of all my businesses. But this is why I encourage with my clients, start with a lawyer drafted contract. Hopefully one that understands photography industry, because you're going to be miles ahead with that. But inevitably you're going to run and we can't contemplate all the world issues like all the client psychological issues or potentials or anything like that. So it is important to keep that running track.

have a relationship with a lawyer, or at least routinely look at updating it. Because it may not even be that the contract itself needs updating, it might be that the photographer that's presenting this contract to the client just needs to come up with a better way of how to explain it. And I definitely see this in areas like copyright specifically, and you mentioned copyright notice, and we'll talk about copyright later. But copyright and intellectual property in general is a very nuanced and very...

Nicole Begley (10:09)
Mm-hmm.

Rachel Brenke (10:21)
can be very hard to understand. We can't expect the common consumer like the photography clients to understand that. And even many photographers are confused about it. So that's one area that I often see a little friction that photographers will face with their contracts. So it may be what's in the contract that needs change, massage a little bit, but oftentimes it's the explanation coming from the photographer when you are explaining the contract to your client. However, that being said, to answer your question, you know, there's no one set way to draft contracts out there.

I have formulated a way and I'll tell you guys how I do it in a second that I feel works with the consumer psychology It mirrors your workflow just makes it easier for everything. But yeah, you know you're gonna And this is why I hate to use the term like model release. You should get a model release Well, yeah, you should and we can talk about that But it really is dependent on what's in the model release because how I draft the model release as a lawyer for photographers It's gonna be completely different

And maybe Uncle Bob that has been doing real estate for 25 years quickly Googles it and writes for you. He's probably not going to have the same information in there. No offense to Uncle Bob. Sure, it's a great model release. But it's just things like that. So in your main services contract, which is really when people say contracts, that's really what they are referring to as the main services contract. The contract term could be your services contract, your

Nicole Begley (11:20)
hahahaha

Rachel Brenke (11:36)
model release, your print release, all the way through a variety of other things, even the terms that you have on your website and your privacy policy that you use in marketing. These are all contracts, but services contract. So I like to write these in a chronological fashion that mirrors your workflow as the photographer. Because we as humans, again, we're using this tool to build the client confidence, make sure that they're understanding that reduces problems. It reduces you having to use the photographer, having to explain things to the clients over and over. So I start with in my contracts,

is in a timeline fashion, like how do you get booked? Contract and whatever your initial payment fee is. I'm not gonna go into retain your deposit yet. That's a whole nother conversation. You know, when's the session gonna be? What's included? When are the photographs gonna be delivered? All the way through like your legal miscellany. And this is where I scroll to first whenever I'm gonna review a contract, especially when a photographer comes to me with a problem. I can tell you that either one, I know it's DIY'd, two,

Nicole Begley (12:13)
Ha ha ha ha ha!

Rachel Brenke (12:32)
is AI or chat GPT or three, you borrowed it from another photographer or something. I can tell when it's not lawyer drafted because the big chunk that's missing is this legal miscellany part where it talks about if there's a dispute, how's it gonna be resolved? Where's it gonna be resolved? What law governs? Which is really important for individuals like myself. I'm right outside of Washington, DC. So when I was actually photographing a lot, I had people in Maryland, Pennsylvania, DC.

Nicole Begley (12:47)
Yeah, I think.

Rachel Brenke (12:58)
Virginia so we have all these different jurisdictions that we want to be mindful of I don't have to be pulled into court in Maryland when that's an hour and a half two hours and inconvenient for me and the biggest thing in a contract I didn't mention it's a little property the copyright notice we'll come back to that that's also really important all of this is important it's so hard to pick one but when I'm looking at a contract strategically as your attorney when you have an issue

Nicole Begley (13:07)
Yeah.

I know I'm making notes. I'm making notes. Don't worry. We'll get there.

Rachel Brenke (13:26)
I look in this legal miscellany for all the things I just mentioned, but I hone in on to see, is there an attorney's fees clause? Why? Because if either you need to pursue your client or your client ends up pursuing you, it is a, it puts, let's just go, we're having to pursue client for whatever reason. I don't really see that very often. But if you do,

You and I as your lawyer, we're gonna have this conversation of okay, you know the amount in dispute is $5,000 but to take them to court you're probably gonna pay me ten to fifteen thousand dollars just throwing out numbers pretty accurate though, I think and If you don't have an attorney's fees clause unless I can find some other thing that your client has done in the statute the law that Awards you attorney's fees you're gonna be upside down do the math five thousand minus fifteen thousand. You're gonna be upside down ten thousand dollars

Nicole Begley (14:10)
Right.

Rachel Brenke (14:13)
And that's how I'm a little different than most attorneys. I won't just say, yes, you have a claim, let's do it, you're gonna pay it. I'll go through these contracts and say, okay, you don't have an attorney's fees clause, so how committed are you to this $5,000? Not that you don't have a legal claim, but we need to look at the real world application of

Nicole Begley (14:26)
Right.

Right. Right. Yeah. my gosh. ⁓

Rachel Brenke (14:31)
That's my little

soapbox for that one, just because I have this conversation so often and we have to, it's, this is business at the end of the day. I know we love photography. I know we love serving our clients. We love creating art, but really at the of the day, if you're going to do this for money, it sounds so cliche when I say it, we do have to treat it like a business. And you know, I got into doing all of this business coaching and being a lawyer, cause I wanted to help other business owners like myself. And so I put myself in the shoes of I know when I was starting out.

I didn't have two nickels rubbed together. I was selling things that I could sell in my house just to afford another lens or whatever I could. I was waiting tables in the evening. So I understand it. get that. And I won't talk somebody out of a claim, but if we're able to have attorney's fees in the contract, then that puts us in a better position that, okay, we may get awarded the 5,000 that this client owes you, and there's a good chance that you're also gonna get me paid back and you're not gonna be upside down.

Nicole Begley (15:21)
Yeah.

Yeah.

Rachel Brenke (15:23)
Let me address the intellectual property thing. Yes intellectual property Language in your contracts incredibly important, especially in this day and age where everyone is sharing everything on social Common consumers common people don't really understand What intellectual property laws look like us as the photographers in the US? We're not employed. We're not w2 by these clients typically, if you're a commercial photographer there may be some other weird situations, but

by default, we retain copyright ownership. So technically we don't have to put anything into the contract for this. I like having it for multiple reasons. One is educating the client and putting them on notice, is letting them know that we own the photographs and they do not. And then we'll also talk about like having a license print release of how they can use it. And it is also helpful in there if the common situation that I see when it's a personal client that takes, I photograph you Nicole.

Nicole Begley (15:57)
Okay.

Rachel Brenke (16:14)
And you're it's just for your family, right? And but you have your photography business on the side. If you take the photographs, even though I've extended you a print release for use personally and you take the photographs and you're then using it on your commercial marketing for your photography business, one by having the notice in the contract, you know, I own it. Here's what you can and cannot do with it. So that puts us it gives us a breach of contract claim. But then I also have a copyright infringement claim on top of it because you're using it in a commercial nature without.

Nicole Begley (16:20)
Nah.

Rachel Brenke (16:44)
permission and so by having multiple claims it leverages it to be able to hopefully settle the situation quicker, but really that's just end of line if there's ever an issue it's to me the contracts are more so Informing we can't control the clients humans are the one variable that we none of us can control in life and business But having like your intellectual property in your copyright notice in your contract. It's not legally required again It doesn't do anything to give you more rights. It just sets you up for like the breach of contract claim like I just mentioned

Nicole Begley (17:12)
Yeah. Yeah. No, I think that's really important. And I think it's happened to all of us where sometimes you're like, wait, no, that's not supposed to be used that way. yeah. Does it, does it affect you if, for a say, and since I had a client that did, I photographed and you know, they had the license for their personal use, just like a normal, and they started to use for business. And, and, and I just thought, I'm just going to let it go. I'm not going to pursue this.

it cannot like bite you in the butt further down the line if you just let that go or is it like up to you whether how much you want to like go after and change that.

Rachel Brenke (17:49)
Yeah, I mean it's case

by case. I mean, I kind of teased it a little bit earlier just threw the nugget out and kept going on I don't

really encourage clients unless there's some really drastic circumstances or facts in the case to go after their client because we again we have the legal side but we need to look at the real world ramifications we want to consider what does this look like for reputation wise in the local area is it worth a marketing hit is it worth a branding hit you know maybe this client just didn't really understand the copyright notice in the contract and need a little education you can educate them on it

You can even reach out to them and make it a customer service piece. And this is also why like having certain things in the contract. Because if you said to me when we're going over it, you know, this is for family, but I would love to use this on my photography business as well. That would be perfect time for me then to sell to you a commercial license. excuse me. So reverse engineering all of that.

Nicole Begley (18:38)
Mm-hmm.

Rachel Brenke (18:42)
And to answer your question, you can set yourself up for situations where, yeah, you could then sell us another license, but pursuit on a client is going to be fact, know, situation by situation. But by not doing it is not necessarily gonna.

hurt you. It's not like everyone in unless everyone in town knows about it. Well, know, Nicole ripped off Rachel's photo so I can do the same thing. The likelihood of that is relatively low. And I know there's this whole mindset and photography industry and I get it, we got to protect our work and I agree with that. But we have to get and look at the world with application. What is the time, money and energy and the potential negative ROI of like branding or marketing hit in engaging in those actions as well.

Nicole Begley (19:03)
Yeah.

Yeah, no, those are always good things to think about because as with most things, it's often not black and white, but often very gray.

Rachel Brenke (19:30)
WHA-

I'll tell you, the majority of cases that I see, and I haven't done scientific research on this, I just pair what I see at the law firm through what I see in the law talk group and try to marry the two, is majority of cases that I see for actual action is not typically a situation where a client has stepped, when it comes to usage of photographs specifically, where they've stepped out of line from the contract, is typically with copyright infringement, we're gonna have unrelated third parties, maybe vendors if you're a wedding photographer and they were a vendor with that wedding, or even,

Nicole Begley (19:38)
Okay.

Mm-hmm.

Mm-hmm.

Rachel Brenke (20:01)
You can look at the list on my website of the major corporations that I've gone against where they just scour the web, take a photo and hope that they're not gonna get in trouble. The amount of cases that I see in pursuit of a client for copyright infringement is relatively low. Breach of contract for no payment is more what I typically see.

Nicole Begley (20:12)
Yeah, or minimal.

Yeah, yeah. Okay. All really, really good. Quick question though for our contracts and just for the people that maybe aren't sure, the online digital signing, yes, legal.

Rachel Brenke (20:25)
Yes.

Legal to go, just make sure you're not like hiding it within a bunch of texts on your website. You kind of want to make sure that we don't have any chance for a client to say, well, I didn't know that was a contract.

Nicole Begley (20:43)
Okay, yep.

Rachel Brenke (20:43)
Use a header

with a contract. But yes, use these online signing systems. We've got the law to back it up. Everyone does it these days. It's just funny. I actually went on a rant on my personal Facebook page yesterday because I was trying to sign something for a provider for one of my kids and they wanted me to go download the PDF, print the PDF, fill out the PDF of like the services agreement, sign it, send it back. And then I didn't get it done. And so when they called, they're like, we don't have it yet. You know why? Because I go to the printer. didn't have paper.

that I didn't have ink, that I ordered a door or Instacart or the wrong ink. So yes, use online signing because if you just, if they had sent that to me from the job, it had been done the second I hit my inbox.

Nicole Begley (21:15)
god.

And it's always, yeah, my printer, it's, I have new ink in there and I can't figure it out because certain things that I'll print and it'll be like nice and crisp and you can like read it really well. And others it's like, you can barely read it. I'm like, but then it's not the ink, cause I don't change it. The next thing I print it's really good. I'm like, my gosh, why, why is it so complicated? Yes.

Rachel Brenke (21:38)
You know what comes to mind? This scene from office space when they're taking

the bats to the printers. Yes, inevitably. So don't do that to your clients. Make it easier for you. And then you don't have to go in and scan it, right? You're getting it back quicker. You don't have to scan it. Yes, digital signatures, use them.

Nicole Begley (21:48)
Yeah.

gosh, there's so many tools out there now that yeah, make it so much easier. And really, I think we should do that just from a customer service standpoint. Look at every piece of our workflow. And this has kind of been my little soapbox that I've been getting on lately too of like, we need to make it easier for clients to learn about what we offer and book us. Because I feel like the old school like, okay, go to my website, pick a time.

Come to my studio. You don't even know what it costs yet. And you want me to take time out of my day to come visit your studio? my gosh, no. So yeah, I've been on a rampage. How can we make it easier? People are busy.

Rachel Brenke (22:27)
Well, and that's the thing is going back to

what I was talking about, like building of consumer psychology and a lot of what I've done a lot of research over the years about this. And this is why I'm such a proponent of like for contracts and workflows being that building of the consumer confidence. One really good book is, my gosh, Influence the Power of Persuasion. He has a couple of books. Dr.

Nicole Begley (22:37)
Hmm.

Mm, uh-huh.

Rachel Brenke (22:49)
I use it in marketing, use it in talking here, I use it in contracts, but the same thing with the workflow, right? Like this same service provider with this stupid PDF yesterday, I was having to play 500 questions and by the end of the phone call, I texted one of my friends that works at Law Talk and I even said, I don't even want to use this provider anymore.

Nicole Begley (22:52)
Yeah.

Rachel Brenke (23:08)
because my buyer's confidence was so eroded because the process was so burdensome. We need to make it as easy as, we're in a day and age where you click, you double click and I just paid for my lunch. You know what I mean? Like we're not having to pull out the card anymore.

Nicole Begley (23:09)
Great.

Mm-hmm.

I I know.

I get annoyed when I'm like, what, there's no apple way I have to pull up my card? How, how times have changed. ⁓

Rachel Brenke (23:24)
I know. Well, like

Apple or Walmart doesn't have Apple Pay and every time I go, like, this is why I come to Walmart anymore.

Nicole Begley (23:35)
That's

so funny. I love it. All right. Do you want to touch the 10 foot pole? Like what the 10 foot pole, the question of retainer versus deposit.

Rachel Brenke (23:45)
Yeah, so this is a this is if you want to look at some of like the hot topics that people argue about in photography groups Whatever you call your initial payment to be retainer deposit All of that's going to drill down into how those terms are defined in your contract paired with your local state law for me Especially, you know and for photographers like in a multi-state area like I mentioned even though we have governing law and all of that It's just easier to utilize one term that doesn't necessarily have case law that may

change that. example, know, retainers this idea of retaining you for a certain date, certain amount of time, et cetera, a deposit. That's typically not refundable. Then you have deposit that could be refundable. All of us understand deposits. We have that for all sorts of things. You can have a non-refundable deposit. You can have a non-refundable retainer. I like to just remove the vagueness out of it and just say that's a non-refundable initial payment. So we remove those ambiguities and then we still just define, connect that to

Nicole Begley (24:28)
Mm-hmm. Yep.

Rachel Brenke (24:44)
What is that money going to get on the calendar, know, prepping for the session, things like that.

Nicole Begley (24:49)
Okay. Perfect. I love it. You guys heard it here first. It's the official, the official, rubber stamped.

Rachel Brenke (24:53)
It's not wrong

if you use the other ones, but we have so many other potential issues in tripping points for our clients. Just get rid of it.

Nicole Begley (25:02)
And

yeah, and if you can make it as clear as possible, you know, that, that, that I think a lot of people think too, that we need to make these contracts like, which they do need to be legally binding and written in a way that is legally protecting you and your client and everybody. but we also want to make sure that things are as clear as possible so that there's not that ambiguity when you're reading it.

Rachel Brenke (25:25)
We don't need all these

here to wherefores. When I get that from opposing counsel, I go and look them up on LinkedIn because I know, no offense, I'm in my 40s. So I know that there are going to be a more seasoned attorney, but no knock on them. And some younger attorneys are also taught that way. And in courts, sometimes you have to use that language. But for our services contracts with our clients, we want to use this plain language as possible. And this is why it's important.

having a lawyer to double check that, even if you write your own and have a lawyer look over it, because you don't want to inadvertently leave something out that you don't or say or structure a sentence in a way that could hurt you later.

Nicole Begley (25:58)
Right.

Yeah, yeah. Totally unrelated. But have you seen, I don't know whose account it is, it's an Instagram account that she works in a legal law firm, but they'll bring in a Taylor Swift lyric and then she like goes to town and makes it all legally.

Rachel Brenke (26:13)
You know how bad I wanted to do that, but I didn't

want to feel like I was copying. liked Taylor's for those watching. But I know.

Nicole Begley (26:21)
It's so funny. laugh every time she does it so easily. mean, I'm sure she practiced or figured out what to say, but yeah, so funny. Yeah.

Rachel Brenke (26:27)
I'm not that creative though, so like even when I'm

watching them, I've got a whole notes pad of like reels and stuff that I'm gonna do. I spend so much time, cause I'm like, I'm just not that creative. I've been so out of the creative field for so long in a sense, like I just feel like there's no creativity in me anymore.

Nicole Begley (26:39)
Yeah.

Yeah, yeah. No, I know. I hear you. It's tough. It's tough. Okay. Awesome. So that's really, really good about that liability, the contracts and yeah, the insurance is really critical. What were the other things in the three, the contract, the insurance and what else for number three? Oh, the business setup. Yeah. Okay. Perfect. I love it.

Rachel Brenke (26:53)
in the business setup, using like an LLC or corporation. Yeah. And LLC

is going to be typically what I recommend for most photographers, especially if it's just you and your business, that state specific, what the corporate formalities are. So yeah, it's just, I think you should do that sooner than later. If I had to put those in priority order, if you're a brand new photographer,

Nicole Begley (27:03)
Yeah.

Perfect.

Rachel Brenke (27:14)
I did this to myself. So why am I like at the question? Because I asked myself this question. If I had to put them in priority order, I would say contracts.

Nicole Begley (27:23)
Yeah.

Rachel Brenke (27:26)
LLC than insurance just because I know that insurance excludes so much ⁓ It's not a beyond end all

Nicole Begley (27:31)
Yeah.

Yeah. I mean, it is

really affordable generally, like a general liability policy just to protect us is usually pretty inexpensive compared to what coverage you get. And, you know, just a good reminder that once you have that business too, that your homeowners or your personal umbrella is not going to cover you. So yeah.

Rachel Brenke (27:54)
Yeah, I mean even a simple I had a house fire a couple years ago in the lap No, it's not this laptop But I had my business laptop in the kitchen and it was right by the stove and I come home to the fire and of course I grabbed the laptop like an idiot instead of trying to put the fire out because I was like my business laptop. It had to be replaced anyways But I was like that's my livelihood. This was after I got the dogs and everything out of the house So they were all safe. But yeah, no, I was so thankful I sat on the curb holding my laptop and I actually thought to myself

Nicole Begley (28:01)
Mm.

We would all do that. ⁓

Rachel Brenke (28:24)
I'm so glad that I have specific business insurance that covers my equipment because my homeowners would have excluded it.

Nicole Begley (28:30)
Yeah. Yeah. I mean, there's one thing about insurance. will exclude whatever they can. Fun stuff. Okay. We talked a little bit about copyright. I would love to kind of open the can of worms on copyright and AI and just like, because there's so many now tools and there's such a,

a spectrum of AI use. Like you go into Photoshop and you're removing a leash with the AI remove tool. I'm like, I don't really consider that AI, technically it is, but like you're just moving some pixels. Like you're not creating new crazy things that didn't exist. So, and then, you know, of course you can go to create everything just with AI that nothing existed. like kind of where, where is the legal world in, in cause I'm sure it's playing catch up. I mean, heck.

Even just our online business stuff. I had a North Carolina state sales tax audit last year, and I was terrified because online education sales is like the wild west. It's not actually defined anywhere. So I was smart and very, this is a good lesson. I was proactive reaching out to a tax attorney when I moved to North Carolina and I said, here's my business. What are my sales tax liabilities?

And she gave me a nice report and like why I was not, well, how my courses and those were not liable for sales tax. So when I submitted my paperwork, I submitted that piece of paper too, and they didn't even question it. So was like, did it.

Rachel Brenke (30:02)
guess.

is

such a can of worms. You know, it's funny, I went to Harvard Business School last year, it's been almost two years now, and they asked me to come speak on AI in business.

And I went back through it recently because I spoke at Signature CEO a month or so ago. My whole presentation from then essentially had changed. There was only a little percentage because it is so fast moving and the laws are so slow to catch up. So depending on when you're listening to this, know, the fundamental stuff that I'll tell you is going to stay the same like what the copyright laws are. But it could be different. It's just everything is so fast paced technology wise. I mean, if you think about it, we're seeing this even for business setup.

Nicole Begley (30:24)
with me.

Rachel Brenke (30:46)
You know, they say if your butt is in the state, you should be legally set up there. But what if all my business is online, it's not even touching the state? It's still archaic. If the laws haven't caught up to understand and contemplate that none of my business is in Virginia just because I'm sitting here, but because I'm sitting here, I have to be legally set up here. So answer your AI question.

Nicole Begley (30:56)
huh.

Rachel Brenke (31:04)
my goodness, when it comes to copyright, so I mentioned before in the United States, know, as photographers, unless we are employees of our clients or we are signing over by contract, we retain the ownership in the photographs. Why this is important, and this is like a big one also that I see besides the retainer deposit argument of the copyright ownership argument and Facebook groups and such, photographers had this mindset.

We should always own copyright. And I'm gonna give my little asterisks there and I'll come back to it of why I don't think that's always appropriate. But I do understand it. I definitely understand it because we wanna control our work, et cetera. Most of us are pro, unless we're in commercial work, we're in portrait photography, dogs, equine.

Nicole Begley (31:33)
Mm-hmm.

Rachel Brenke (31:43)
doesn't matter, we're really selling personal licenses. So that is kind of the end of the line for the monies that you're getting out of this photographs unless you're using it in your marketing or you're looking at going to license these photographs. Like you mentioned, leash with a dog. If you own the photographs, you can turn around and go pitch to the leash company to license those photos because you are the copyright owner. So it's another revenue stream that you could have.

my little asterisks on the copyright ownership piece and why that should always be the default like the industry says, I'll use myself as an example. I always ask, well, I'm always very upfront when I approach a photographer, even as for my personal stuff, who I am, what I do, do you have a contract? I did have one.

Nicole Begley (32:24)
And then

they have like a major panic attack. like, my God.

Rachel Brenke (32:29)
No, I had one I didn't hear back from her and I text my friend. said I bet you they don't have one. She goes, what's her name? She looked it up. She had gone to the lot of talk and bought one that evening and then sent it to me the next day and I was like, okay, you know that works for me. It was so funny. But for someone like myself that has any some of your clients may be this way as well who develop an online brand and a presence I want to be able to control

where my face is attached to. And for example, if my photographs ended up on some seedy website attached to something that does not represent my brand, if I, the person in the photos, just, I don't have the copyright ownership of it, I have very little rights and ways to get that taken down. Like take day on notices, DMCA's, it's under the Copyright Act, that is beholden to the photographer. So I would be, Nicole, if you took my photos, I'd be over here like, girl, you gonna go get them?

Nicole Begley (32:56)
Mm-hmm.

Rachel Brenke (33:23)
But if you're like, I don't have the money or the resources to do it, you're so well, I'd be like, there's very little for me to be able to do. So I just share that if you run into especially working with clients like that, or for some commercial based stuff, I think it is appropriate price appropriately, but I think it is appropriate to sell copyright. When we get into AI, so you mentioned the leash removal, the copyright office copyright.gov has put out some circulars about how they are approaching

Nicole Begley (33:30)
Thank you, Mark.

Rachel Brenke (33:52)
when you go to register, you should be registering your photographs, when you go to register any assets, so it could be photos, videos, anything like that, that has AI in it. They have put out that the portions of the work, the asset that is AI created, creative input in it, should be excluded.

I hear what you're saying about like the leash removal. That would be an argument of was that a creative input? Because remember for copyright, for us to have copyright protections, you have to have put in some creative input.

Nicole Begley (34:17)
Mm-hmm.

Mm-hmm.

Rachel Brenke (34:25)
so I had a client that came to me with a label for a food product. Super was excited about it and I asked him, where'd you create this? Chat GPT. And I said, well, did you do any edits to it? No, just straight out Chat GPT. I'm like, you don't own it. You couldn't stop anybody else from.

Nicole Begley (34:39)
Yeah.

Rachel Brenke (34:41)
developing a competing product using the exact same or substantially similar label. So we need to keep that in mind when we are utilizing AI with our photographs, we want to look at it as a spectrum. Are we doing this like a simple leash removal? Are we having them having AI substantially change the creative work itself? And that's where it again, though, this is that.

fast-paced area of law, need to sit down again and start looking for some cases that are out there to see how judges are ruling on this because it is such a vague area right now.

Nicole Begley (35:02)
Yeah.

Yeah, yeah, I'm thinking like, you know, what if you created like, you were the the artist that you created an AI version of like based on a real photograph, but you took it to AI to make it like a cartoon version of something that, you know, and then like it was still creative input, but not but AI like, yes, that's very much a murky road.

Rachel Brenke (35:33)
It

is. mean, the thing is too, like we look at it outside of AI. you, when you develop a book, right, if you write a book and you take research from other people, you put those graphs in there. It's very similar.

Nicole Begley (35:39)
Mm-hmm.

Rachel Brenke (35:44)
I can't register and protect the graphs themselves because it's not my work to protect. So I would exclude that with the Copyright Office. And I have had to get into arguments on behalf of clients against opposing counsel for these things. We can't just say we have a $20,000 demand because opposing counsel is like, you don't own a quarter of the book. So they automatically slash the damages by a quarter and it just becomes a numbers game at that point. The other thing for AI specifically though that we need to think about is a two-way street. One, us as photographers,

Nicole Begley (35:47)
Yeah, uh-huh.

Yeah.

Rachel Brenke (36:12)
We are taking our clients face, their, you know, recognizability and we're feeding it into these machines. Do we have permission to do that? Where can you put that in? Your contract. The other side that we have to consider, what are clients doing with the photographs? Are they taking the photographs and are they feeding it into these AI machines that are being trained? And does that mean at some point, some output is gonna be an infringing copy of your work?

Nicole Begley (36:15)
Mm-hmm.

Mmm.

Rachel Brenke (36:38)
Now I don't know if that'd be intentional on client's part or not. They may have just been playing around to edit it. Like I tried, but I own the photograph so I could do this. I tried to get them to remove my chat GBT to remove my wedding rings for some of my last branding photos because I'm not married anymore. And it changed my whole face instead.

So it's not perfect. I mean, I love AI. I think it has a time and place not for drafting your contracts It'll even tell you what it'll leave out of contracts. I'm like, if you know them, why don't you draft it that way? But we just need to be mindful of this is that I I think this is so incredibly important You can translate this also over to just in your marketing usage We need to make sure we're really communicating with our clients and asking them about the usage of their likeness their recognizability Like in my area, I live near DC. And so there's a lot of three-letter agencies

Nicole Begley (36:57)
so funny. No.

Ha

Rachel Brenke (37:26)
individuals, FBI, CIA, all that who can't be online. And then you have other situations where there may be a domestic violence situation. There may be foster children in there. And so you could be under a restriction from your client or some law to not share these. And if you're popping in at a Photoshop, you don't understand the terms of Photoshop or you just don't know and it's being shot into the web. Technically, you are facilitating that.

Nicole Begley (37:49)
Hmm, I didn't even think about that. But yeah, the Photoshop different terms. Yeah. Yeah. Yeah.

Rachel Brenke (37:55)
I haven't looked at the new ones recently. Again, these terms update all the time because AI is updated. So I need to go back and take a look at that.

So I can't speak specifically. I just use Photoshop as an example. know like ChatGPT and those others, they do share that information and it teaches me.

Nicole Begley (38:07)
Yeah, yeah, I was always,

that was something I always asked, especially when I was photographing more families and the children of like, it was in my contract of like, I have the right to like, basically, like I'm a guardian of this child, I have the right to, you know, make these decisions about them. Yeah, just, and there'd be a couple of times situations where, they were pending adoption.

So was like, they can't be online and then we just adjusted and yeah, of course we'll do that.

Rachel Brenke (38:36)
I even think about it for

situations too, like boudoir pictures or like getting ready pictures at weddings. You you might have a limited model release that the bride or whoever in the couple has said, I don't want the getting ready when I'm in my robe or bra and underwear shared. But if you're editing in a system that is AI connected, you're sharing that anyways.

Nicole Begley (38:40)
gosh, yeah.

Mm-hmm.

Mm-hmm. Mm-hmm.

Yeah. my gosh. Crazy, crazy world these days.

Rachel Brenke (39:00)
And so

the answer that we're probably gonna get is so what do we do with all of this? I think the thing is to be mindful of what are the permissions that you have from your clients? Look at the programs that you're using and read their terms and then just be smart about the usage I mean, come on. Do we really need don't kill me. Don't throw tomatoes Do we really need to utilize Photoshop AI to get rid of the leash? Maybe sometimes can we not go back to the old days or use the clean stamp or something? ⁓

Nicole Begley (39:04)
Yeah.

It's so much, well, yeah. No,

it does. It's so much faster. It's like slower to do it, but it does it like perfectly. When I have to go back to like the spot healing brush now, I'm like, ⁓

Rachel Brenke (39:30)
I know.

I know, and I'm not knocking yet.

I'm not knocking it at all. These are just things that we need to be mindful of.

Nicole Begley (39:40)
It's so funny. Yeah,

no, for sure. Absolutely. One other question around this copyright, and it's more around trademark. I would just love to get your pros and cons of I'm naming a photography business. Do I go with my name or do I go with like cute puppy toes photography?

Rachel Brenke (40:00)
Well, I would hire cute puppy toes for time. I love puppy toes. Okay, so let me give you the quick rundown. And this is the number two in that formula, the three two one we talked about copyright and trademark. These are both intellectual property tools. Copyright protects physical assets, not physical assets, assets like photographs, the creative output. So photos, videos, music, books, et cetera, where it's trademark is what

Nicole Begley (40:02)
hahahahah

Rachel Brenke (40:24)
Serves as a source indicator so I can when you see the apple logo, you know that that product is coming from apple

There are crossover protections between a logo, copyright, and trademark. So the infringement depends on how it's used, right? So to answer your question though, when it comes to trademarking of a business name, I go through a bunch of questions, but some of the high level ones with clients, especially if they're on the ground floor of building their business, and I ask them, what are your business goals? Are you looking at selling, franchising, et cetera? Like what does your business succession planning look like? Because I want to make sure your business is valuable as possible from the jump.

I did have a photographer who was opening up multiple studios and was franchising it, kind of doing a franchise model. So from the jump, we made sure all photographs were owned.

They were copyright registered, all marketing materials were copyright registered, all of that value right there. The name also made sure we ran through all the different trademark checks to make sure no one else had it, got the registration so that we could also stop others from having a same or similar name, this is the formula for trademark, same or similar name connected to the same or similar products or services. Because you can't just say, well, let me check for puppy toes photography. no, there's none out there or there's one out there, but it's puppy toes winery.

I'm good. I can't use it. Well, yeah, you can because selling wine or having a winery and doing photography or two completely different classifications within reason high-level example So I think I am a big proponent of trademarking the number one conversation that I have with clients is that either they've been in business for a while with a business name and they've developed the marketing value around it or They get married to the name and I have to tell them. No, there's other there's trademark

Registrants already that own this and have this so if you don't stop you're gonna get sued. What does that look like? hundreds of thousands of dollars in federal court and paying on all the profits during the time that you use Yes, yes, so it can be very costly so when we talk about ROI like we did at the beginning of the Episode I'll have the conversation like are you wanting to spend hundred fifty two hundred thousand dollars on attorney's fees potentially?

Nicole Begley (42:13)
⁓ yikes.

Rachel Brenke (42:29)
how much thousands of damages and then still have to pay to rebrand. And I'm saying that like unsympathetically. I would be absolutely distraught if I had to rebrand the Lul Talk, right? Like, cause I've spent 15 years building it.

Nicole Begley (42:39)
Yeah, right.

Rachel Brenke (42:43)
I have my registration for it and I police it. So that's what's incredibly important there. But yeah, so in my long winded fashion to answer your question, I think trademarking is incredibly important. It's not required. And you don't necessarily have to have the business goals of looking to sell eventually. That was kind of more of an obscure example. But I also throw that out there because some of y'all may move into other businesses and want to consider taking that knowledge with you. The bigger piece that I see

Nicole Begley (42:46)
Okay.

Yeah.

Rachel Brenke (43:06)
is this day and age where we're marketing online and consumers don't pay attention, right? Whether the name is exactly the same or it's similar, you could be in Florida, this person could be in California, the other photographer is hurting the dogs, not handling the dogs well, treating them really bad, really bad business processes, and there have been reviews that happen on your Florida company because consumers don't pay attention, or you're getting inquiries and booking inquiries for...

Nicole Begley (43:27)
Mm. Mm-hmm.

Rachel Brenke (43:32)
in California because there's confusion online because the name is so substantially similar. So pick a unique name, do the trademark checks and get a registration if you can and then police your mark and make sure that no one else is infringing upon you. That's really the best you can do.

Nicole Begley (43:46)
Yeah.

And if you use your name, that actually happened. A friend of mine used her name and there was somebody else with the same name using her name in Texas. She was in PA than the other girls in Texas, but they at least like, would send it back to each other of like, this one's for you. But I'm like, my gosh. ⁓ but you can't. Yeah. Yeah. Why, why you can't trademark a name though. Right? So if you're using your personal name, that's not trademarkable.

Rachel Brenke (44:03)
Why add that extra admin work?

Potentially, it depends on how distinctive and there's other ways that you can do it. Surnames typically are not, I mean, Taylor Swift's done it, but she's Taylor Swift. you know, it can't, potentially can be done. We'd have to look at it, but this is why you really need to come up with something that's not descriptive. That's how Apple, even though it's descriptive of a product, they can be Apple because they're not selling.

Nicole Begley (44:15)
Okay.

Mm-hmm.

Rachel Brenke (44:34)
That's not descriptive of the product or service that they're selling. So try to that's how the lot hog was kind of born I didn't even love it. I still don't truly love the name itself. I love the brand value around it now But because I needed something that was unique in order to get it approved So it wasn't descriptive of what I was doing Whereas if I had said like the photographers lawyer maybe could have got approved, but that's pretty descriptive The USBTO probably would have denied me

Nicole Begley (44:35)
Right.

Yeah, yeah.

Yeah.

Gotcha. Yeah. All right. I love it. So good. All right. Let's do number three or no, the number one, section real quick, and then we'll wrap it up.

Rachel Brenke (45:07)
I mean, that's a lot. Just marketing, think the biggest thing I want to say here, we've talked about in copyright, make sure that you own or have proper licenses for the assets that you're using in marketing. So like if you have someone come do behind the scenes shots for you at weddings or shoots, same thing. They by default own the copyright. Have that either licensed to you or signed over to you. One of the big things here is consumer data protection. We're seeing this in a lot of states. You guys get the notices all the time. We've updated our privacy policy and that's because states are regulating

the what considerate data is being trapped how it's being tracked and how it's being used and so we have a requirement to have like privacy policies safeguard that data

So these consumer data protection laws are really putting the onus and the responsibility on the business owners for us to inform the consumers of how we're doing this. If you're using scripts, Google Analytics, whatever on your website, it can be as simple as the Google Analytics information demographics. That's still consumer data. And so a lot of states are moving towards having state laws. I think we're up to seven states now. I could be wrong, I have to check. But they...

where you're required to have it. And it's not like there's some marketing police out there, and I'll talk about Federal Trade Commission stuff here in a second with testimonials and such. It's not like any of these agencies or the government is trolling around looking for it. Where these issues typically pop up, as I do this, is if I need to leverage settlement against someone else for my clients, I'm going to tell you of all the bad acts and the things that I see, and I could put in there that you're violating consumer protection laws as part of my threat. And so we want to...

comply with the law and also avoid issues. Federal Trade Commission, big one, know, there's not a lot of affiliate marketing necessarily or brand deals in the photography industry, but if you're getting product, if you're having affiliate links, you gotta disclose all of that. Where I really see important is for like use of testimonials. I know that we want testimonials so bad.

and that consumers are more likely to leave a bad review than a good review. So we want to incentivize those testimonials. The problem is under FTC and other laws that if, you know, I photographed Nicole and I say to her, I'll give you a free print or extra digital if you leave me a review, technically every time I get that or every time I use that review or testimonial, I have to disclose that she was essentially compensated for it.

Nicole Begley (47:23)
Mm-hmm.

Rachel Brenke (47:25)
The way

that I like to approach it is do really good work, build up by your confidence, encourage, encourage, encourage for them to leave the testimonial. And then after you give it to me, I'm free to send you a $5 Starbucks gift card because it wasn't basically an exchange for the testimonial. I'm just thanking you.

Nicole Begley (47:29)
Yes, ma'am.

Yeah.

Yeah.

Yeah, that's a good, that's a great point. Awesome. this has been really, really good, really a lot of great information, you guys. so come back through that and, and let's just recap the, the three, two, one of those different areas. Again, the people should pay attention to and make sure that, you know, make sure that they focus on at some point early on their business development so that they, don't regret it later.

Rachel Brenke (47:47)
lot of information.

chronological priority order from the way that I would approach it. If I had to start all over, this is what I would do. So the three is for your liability protection, business entity, insurance, and your contracts. The two is intellectual property, which is what we sell as photographers. So copyright and trademark. And one is all the marketing legalities that you need to stay in compliance with.

Nicole Begley (48:09)
Yeah.

Yeah, perfect.

Rachel Brenke (48:27)
And this is not

the be all and end all. I didn't even go into taxes. I didn't go into any of all that other stuff. I kind of nestled that a bit under business entity. We just didn't go too deep into our business setup. So there's more.

Nicole Begley (48:35)
Yeah. I mean, that could be a whole

another like multiple hour conversation. ⁓

Rachel Brenke (48:41)
If you ask me

to come talk about taxes, I'm telling you no. I love you, but no. ⁓

Nicole Begley (48:43)
Well, you're standing

in your lane. You're like, I'm an IP attorney.

Rachel Brenke (48:48)
I know enough

to be dangerous, but who really wants to listen to a podcast on taxes? That would get worse listeners in this. Okay, Tiffany. Okay. Sorry, Tiffany, no offense. I'm in the same field. I'm the same way with you people are going to skip over the lawyer episode anyways.

Nicole Begley (48:51)
Yeah. Hey, we have had one Tiffany bastion and we had a great conversation. yeah, we, made it fun.

awesome. Well, thanks Rachel for being here. Can you let people know where they can find you online?

Rachel Brenke (49:11)
Yep, so the Law Tog the go-to legal resource photographers is thelawtog.com. We also have a free Facebook group where you can ask questions. And then if you wanna work with me directly as your attorney, Eden-law.com. But if you just Google me, I'm the only Rachel Branky that comes up and all of it's right there for you.

Nicole Begley (49:25)
Yeah.

Awesome. Well, thanks everybody for being here. Thanks again, Rachel, for spending your time to help us get protected legally and everybody else. I'll see you guys next week.