0014: Alyce Zawacki - Protect Your Creativity, Your Work, and Yourself

[00:00:00] Mica: Welcome. To the 14th episode of The Savory Shot. If you've been here before then, you know who I am. But if this is your first time joining us. First, I want to say, thank you for being here. You could have been anywhere. You could have been doing anything. But you're here with me. So who am I?

Well, I'm your host with the most. My name is Mica McCook.

In episode 13, we had Frank Curry on the show. My former professor. And y'all he kept he real, about what it's like to be a photographer in today's world. If you haven't listened to that episode.

You should go back and check it out now. Pause this episode. And then go back. And listen to that one. But y'all. Today's guest.

Let's talk about it.

Today's guest is Alyce Zawacki. [00:01:00] Alyce is an attorney for creatives and she specializes in contracts and licensing agreements. Y'all I tell you what. I left this interview with an entirely different outlook. I went back and re-read. All of my contract templates. Every single one of them. Y'all. Don't sleep on this episode.

Seriously.

Alyce is here to share her knowledge about contracts, licensing and intellectual property rights with us. So, uh, escuchame!

I think that means listen up.

I'm learning Spanish right now. And. It's not going well. But I know escuchar means to listen. So listen. We talked about how photographers can protect themselves from lawsuits and copyright infringement by [00:02:00] having a solid contract in place. Before. They start shooting. And how important it is for all artists to understand the legalities of their contracts. Before they began shooting.

Keyword. Before.

This episode will help you make sure your rights are protected and that you don't get taken advantage of by predatory companies looking to profit off of your hard work. Can I get an, A. Muthaeffin. Men? Cause y'all know what I'm talking about. But before we get into that. Let's start the show.

[00:03:00]

[00:03:19] Mica: I just wanna start off by thanking you for being here and for being a guest on the show.

I'm so dang excited that you're here cuz we are gonna get into some meaty, meaty things. But first off, thank you for being here.

[00:03:34] Alyce: Yeah, I'm super excited to be joining you. There's so much to discuss, so I'm excited to get into it.

[00:03:40] Mica: Yes. Well, with that being said, let's. Let's dive in, like we're at Barton Springs Pool. So while I was doing my research about you, I just loved your background and just how you participated in theater and film, journalism, [00:04:00] photography.

I mean, I was like, is there anything that this gal has not done creatively?

[00:04:06] Alyce: I was doing it, but not very well.

[00:04:10] Mica: Okay. So, uh, Jack, uh, Jackie of all trades, master of none.

[00:04:17] Alyce: Exactly.

[00:04:19] Mica: That made me curious though, how that prepared you for a career in law?

[00:04:25] Alyce: In terms of the legal side of things, I don't really think it did. What I think it did help me with was seeing perspective from my client's view. When I have clients come to me and they're in these different industries because I am familiar with the industry, it has allowed for me to sympathize with them, understand where they're coming from, and just generally understand what they're saying.

[00:04:50] Mica: That makes a lot of sense. It reminds me of Method Acting. Which method actors, no offense, but y'all are crazy.[00:05:00] Are you familiar with method acting and what the philosophy behind it is?

[00:05:05] Alyce: Yeah. Yeah, absolutely. I agree. They, they're crazy.

[00:05:08] Mica: They really are crazy. But for the listeners who aren't familiar with Method acting, the philosophy is that you can't really connect with a character or your role until you've literally walked a mile in their shoes. So if your character is homeless, well guess what? You're gonna be homeless. A method actor would go and live on the streets because to portray a homeless person, you have to be homeless.

So as a creative lawyer you know what musicians go through because you've been in that world and you've walked in those shoes. You know what photographers go through because you've walked in that world and you know what they go through. That's just really cool. I love [00:06:00] that.

[00:06:00] Alyce: If I haven't had personal experience in those areas, I've always been surrounded by people in creative industries, so that has also helped add to my perspective, seeing what they're doing and going through has really prepared me for, for what my clients are going through.

[00:06:16] Mica: Is there a distinct moment where you knew that you wanted to study law and that focusing on creatives is the path that you were going to follow?

[00:06:27] Alyce: Yeah, I think I got to a point where I realized I was not going to be an actress, or a director, and the creativity was not there. I was not good enough at it. Right. And so for me, it really was about finding a way that I could still be involved in the creative industry, but in a different way that didn't involve me being an actor or a musician, or a journalist.

Right. I took a law class when I was in high school, just a legal studies class, and I found it interesting and then realized that I could bridge this [00:07:00] gap. I knew I always wanted to do entertainment, creative law from the get go, which is kind of unique.

Most people have no idea when they go to law school what they wanna do.

[00:07:08] Mica: You mentioned that you represent the talent, the underdog. When did you realize that creative people need legal help?

[00:07:16] Alyce: It was seeing friends being taken advantage of in the industry, especially in the music industry. It is a really, really brutal industry and there's a lot of great things about it, but there's a lot of shady actors out there. Same as the film industry. Film industry doesn't tend to be as bad, but it really was seeing them being taken advantage of and having these clients call me. That had signed something without being explained what it said, and then they've given up all of their rights in perpetuity forever and just these really ridiculous contracts. That got me feeling like these people need to be represented and there's nobody, or not many people out there who are doing that type of law and representing the talent versus the [00:08:00] big corporate company.

And that's not to say I don't work with some companies, I do, but it is definitely with the caveat. Primarily the contracts I'm drafting up. I'm not gonna draft a contract that's going to completely take advantage of an artist.

[00:08:14] Mica: My husband, he is a musician. He is the lead singer of a progressive rock band. And so many of his friends have run into the same situations of they're not getting copyrights. They're not getting paid by the venues that they're doing work for, or they find themselves in a pay to play situation.

It's really heartbreaking to see that.

What's one thing you wish every creative knew about what you do?

[00:08:42] Alyce: I think looking at legal as a preventative care for your business is what I wish people knew. Most people come to me, they're at that point where they've got an issue going on with a client. They've signed something that they wish they hadn't signed, and it's mainly because they hadn't [00:09:00] really been considering legal as part of taking care of their business from the get go.

We're not just there to defend you when I guess, you know, everything hits the fan. Um, we're here to draft those contracts before things get to that point and to help you protect things before you're at that really stressful period.

[00:09:22] Mica: So when they show up on your doorstep and they're like, hi, here's a bag of poo. Help me fix this. And it's like, mm, you should have been here like 10 steps ago.

[00:09:32] Alyce: Exactly, and unfortunately that is most of the time. I have some clients that are great at coming to me for every project. We work on their things together. They have great contracts in place, but a majority of the time, for the first time, if a client is coming to me, it is because they have that bag of poop on their door.

[00:09:49] Mica: Why do you think that is?

[00:09:51] Alyce: Money is obviously a factor for a lot of small businesses as they start branching out and legal most of the time is the thing that's put on the back [00:10:00] burner, right? So yeah, I think money. I think, education. Intimidation. A lot of people are very intimidated by lawyers and by the legal field.

It can be a scary process to reach out to a lawyer, especially if you don't know any and you think that we're all scary and, and that sort of thing. There's definitely a stereotype that goes along with a lawyer.

[00:10:19] Mica: You hit that so on the nail, because all of the food photographers that I know that I've spoken with, our biggest fear is getting sued or where we're in a courtroom and it's like all of our life savings are just down the drain and it's just such a scary place to actually go there.

What's the most common question you get from your clients?

[00:10:43] Alyce: How do I protect my work? How do I stop other people from using it? They really wanna make sure that they're doing everything they can to monetize their work by not allowing just people to use it for free.

And so when we are talking [00:11:00] about protection, there's a few different ways that you can protect your business and that you can protect the work itself. The first thing is having an LLC is a great first step for any business, not just for photographers, but any business out there. It's very easy in most states to set up an LLC and it offers you that protection of separating your business assets from your personal assets.

And then other things we're kind of thinking about are copyright protection. So for photographers, are you copywriting your photographs when you take them and registering with the US Copyright Office? Do you have a trademark on your brand name? Trademark at the moment is probably the number one area where I'm seeing people sending cease and desist and there's a lot happening in that area. It's taking about a year to process trademarks at the moment at the US PTO, so it's just crazy. There's been about a 200% increase in trademark applications in about the last 18 months. It used to take three months to process.

[00:11:58] Mica: Man, I cannot believe that. [00:12:00] Three months to a year.

When I started as a photographer, I started with a sole proprietorship and for years, my husband Aaron is like, we gotta switch you to an LLC. And when I did the rebrand for Austin Food Guide, he was like, okay, that's the time that we need to switch you to an LLC. Correct me if I'm wrong, sole proprietor is, you are liable with your personal assets and with an LLC you have some limited protection.

Did I get that right?

[00:12:32] Alyce: Yeah. Yeah. Yeah, the, the goal is with the LLC and it's definitely not a hundred percent. There are circumstances where a court can still come in and hold you personally liable for what the business is doing if you're being negligent. Copyright is actually one of those areas where often they will come after you personally.

But it does separate your personal assets from your business assets. And the hope is that if somebody does try and sue you, they have to go after the business. Can [00:13:00] only go after what's sitting within the business accounts and the business assets rather than your house, your car, your personal bank accounts. That's really what we're separating out with the LLC.

[00:13:10] Mica: If you wanna keep your house and your car and all of your personal things and you're running a sole proprietorship now, this is your message to switch to an LLC and make that investment and protect your assets, protect your business. We talked a little bit about contracts and so I wanna dive into that a little bit more.

What makes a good contract for creatives?

[00:13:35] Alyce: Number one. If you are providing somebody a contract, you need to understand it. I have had clients in the past where they've had contracts that are just full of a lot of legalese, not very clear, and they have no idea what is in within that agreement that they're giving to, whether it's a client or a contractor or a talent that they're working with.

So that's probably number one. Clear language that you understand and [00:14:00] that the person that you're giving that contract to understands. A lot of the older generation have a tendency to draft with a lot of legalese. You see that kind of language of here under, there under, wear under which I mean, in my opinion is not necessary at all.

I don't draft that way, and it is a big movement to move away from that so that you're reading a contract, you understand it, you know what's in it.

[00:14:22] Mica: I remember one of my professors mentioned you should always take your contracts to a lawyer because it could be something as simple as a punctuation mark that can make all the difference in whether you are protected or liable. Where's the best place for a creative to learn their contract? Besides taking it to a lawyer, I'm sure

[00:14:45] Alyce: Yeah. And I mean, that's the, that would be the number one goal is to work with an attorney, to draft a contract that's tailored specifically for your business. Because that is the other thing. A lot of people will find things online and use templates. There are [00:15:00] some really bad templates. There are some templates that are good, and maybe they have been drafted by an attorney, and better than nothing.

Right? But at the end of the day, if you wanna make sure that your contract is suitable for your business. You should have worked with an attorney on that contract to tailor it specifically to your business.

[00:15:17] Mica: Is it every time they have a contract with a client or can a photographer go to you or to a creative lawyer and say, this is the general template that I would like to send every client?

[00:15:31] Alyce: Depends on the attorney. The way that I work with my clients is so that we get a template, they don't have to change the contract at all. And then we have a statement of work that they can tailor specifically for the client. Occasionally I'll have clients that have their clients push back on certain items, or maybe they need some help in drafting that scope of work because it's a little bit more complicated than normal, and then they can engage me to come back and just look over that rather than redraft the whole contract.

[00:16:00] That's my approach, but not every attorney has that approach.

[00:16:03] Mica: What do food photographers risk by not having a contract in place?

[00:16:08] Alyce: Losing copyright or being unclear on copyright ownership is the biggest risk there. Photographers do have the benefit of if they are the one who takes the photograph, they own that photograph, unless there is a contract in writing to state otherwise. So that is in your favor as a photographer, as the maker of the work.

So if there isn't a contract, at least you have that there, right? But have you clearly outlined what the client can use the work for? That's what really where you get into these complicated discussions. A lot of the time I find with photographers, the client thinks they own the photos. They think that they can use the photos for anything they want to use them for, and that most of the time is not the case.

Even with commercial shoots, most of the time my photographers are saying, you can use this photo a billboard, or you can use it in print publications or you can use it on [00:17:00] socials, right? And they're very specific about what the uses are because ultimately that's what you are charging for. And if they go outside that scope, you can charge more.

[00:17:10] Mica: So having those clauses in your contract, it's like if there's any kind of dispute whatsoever, you can go back to that spot, that clause and say, here you go. Here it is in fine print. End of discussion.

[00:17:22] Alyce: And there's definitely ways that you can point out certain areas of your contract that are important. Like I said, that scope of license, typically is going to be the most important part, and that should be drafted in a very, very clear way, and the client should sign that in addition to the terms of the contract. Another thing that I often do for clients is do a key terms page. And so the very first page will just be an overview of the contract because most of these contracts are pretty long, you're typically looking at 7 to 10 pages. And so if you just have the very first page giving an overview of the main points of the contract, that can really go a long way in helping your client [00:18:00] understand exactly what's in there. At the least, they will hopefully read that first page.

[00:18:04] Mica: What are some of the most common mistakes that you see in contracts?

[00:18:07] Alyce: Again, the intellectual property aspect of it. There is certain language that needs to be included for licensing and for copyright ownership that is mandated under the law to give up certain things. For example, if you are doing a work for hire, and I know work for hires aren't that common with photographers, but if it is a work for hire contract, the contract needs to actually state this is a work made for hire.

If that those magic words are not included in the language of the contract, it's not going to be enforceable. And there are other areas, like that where specific language does need to be included. Payment terms is another one that I see a lot of issues with in terms of, okay, this money is to be paid, but when is it to be paid? Is it all to be paid upfront or later on or halfway through? How is it going to be paid? Is it [00:19:00] gonna be paid by check or online, ACH, right? All of those things should be looked at and clearly marked. Are there late fees for late payment? That all needs to be very clearly defined, and a lot of the time I find that that's not sufficiently outlined in, in contracts I look at.

[00:19:17] Mica: Being paid and being paid on time is like super important to me. I would want that listed and bold and highlighted and yellow letters, maybe capital letters if I could get away. But that might be a little, a little forceful.

[00:19:32] Alyce: I tell all of my clients, you should be getting at least a percentage of the fee up front. Don't do work for free. Not for free, but don't not get money up front because it really does leave you open to be taken advantage of.

And for them to come back and say, oh, well I didn't like the photos, or have some issue. And then you've got nothing. At least if you've got something up front, you can take that money and walk away if you need to.

[00:19:54] Mica: We're told so many times at at least beginner photographers [00:20:00] are, know, to get your foot in the door, offer to do something for free and I disagree wholeheartedly with like, You should not be doing a single thing for free.

I do have a contract in place for whenever I hire assistants, food stylist. I don't know if it says specifically that it's a work for hire, so I think I need to go back and check that.

[00:20:26] Alyce: It's an interesting area because there's about nine different types of work that fall under the work for higher category. Photography is not actually one of them. So even though we see this language work for hire, what you'll often see is this is a work made for hire.

If it's not a work made for hire, you're assigning all rights to me.

[00:20:45] Mica: I wanna talk about the force muh shore clause. How does that clause protect photographers from unexpected events?

[00:20:53] Alyce: The Force Majeure clause was really something that, as attorneys was stock standard language that we all included [00:21:00] in contracts and never really paid that much attention to. It really was boiler plate. After Covid, that has changed a lot. I have a lot of clients that are in wedding industry, and that industry in particular was obviously significantly impacted by all of the shutdowns, by people getting sick if once things were reopened or just with people not being comfortable holding their event, even once things opened back up.

So we had a lot of discussion about these clauses. I looked at so many clauses that outlined this. It was really difficult. I mean, on the one hand, especially with wedding industry, you had these brides who really were upset because their wedding had been canceled and they felt like they didn't owe anything for the services.

And then you had these poor wedding vendors and small businesses like wedding photographers who were out of pocket and not having any business for some of them a year plus. [00:22:00] That's a whole year of revenue that they're missing out on. For what we did with a lot of my clients, we were trying to find this middle ground of, okay, we can suspend the services, but you have to reengage and you have, a year to reengage the photographer, otherwise you lose the initial deposit because they didn't have the ability to refund everybody. Weddings are often booked a year, year in, in advance. And they just did not have the ability to go ahead and refund everyone. So that was the middle ground we were fighting. There was a lot of pushback and it was really difficult to negotiate some of those. But essentially what the Force Majeure Clause does, and I think that was your question.

What it says is in the event that either party cannot perform the contract because of some extenuating circumstance, often you'll see things listed like wars, acts of God. So we're thinking about hurricanes and tornadoes and things like that. Strikes or government shutdowns. And now we're adding in [00:23:00] pandemics and epidemics into those clauses to also prepare for that.

And some contracts did have that language, some of them didn't. You often see the other, broad language or any other event that prevents performance. What that essentially means is that the contract is, is canceled, right? Then you have to think about, well, if it's canceled, does the non-refundable deposit have to be paid back?

In most of these contracts, it was not very clear on what was meant to happen in that situation.

The other thing we were running into with that as well was, okay, when does this pandemic become expected? When do the, the results of what's happening become expected? Right? If you are a bride and you're booking a wedding photographer in the middle of the pandemic, at that point in time, the argument would be that that is no longer a unpredictable circumstance of what may happen to your wedding.

[00:23:57] Mica: That is a good question. It's like [00:24:00] at one point, are we not in a pandemic anymore? Covid is for the most part, with all the vaccines that are out now, is no longer looked at as as as a death sentence. So is it still a pandemic or is it something as common as the cold? Now we're in that weird gray, murky water area.

Are there specific clauses that photographers should look out for in a contract?

[00:24:29] Alyce: To do with force majeure or just in general?

[00:24:33] Mica: Just in general.

[00:24:35] Alyce: The biggest one I see is language of work for hire or assignment. That's should automatically be a red flag if you see that language. The other language that I often see that confuses people is exclusive perpetual license.

[00:24:51] Mica: You explain what that is?

[00:24:53] Alyce: It makes the contract look like it's a license because you think, okay, well, it's a license. It says license. However, the [00:25:00] word perpetual means forever and exclusive means that those works cannot be used for anybody else. So, in essence, a perpetual exclusive license is actually just an assignment, and is as bad or not bad.

Is the same essentially as that person owning the work rather than you retaining the rights in the work. Some tricky language that I often see in there that I believe is in there just to confuse people a little bit, but means the same thing as assignment or work for hire at the end of the day.

[00:25:29] Mica: How do you get your creative clients to take the time to review contracts before signing them?

[00:25:35] Alyce: A lot of them don't.

[00:25:36] Mica: You calling people out.

[00:25:38] Alyce: I, I'm, I'm not naive to that. I mean, what ends up happening is they sign a bad contract and then they look at things more clearly, right? You learn from the mistakes that you make. And once you make a mistake that has to do with something that you could have potentially made a lot of money off, I think you realize very quickly why it is important to understand [00:26:00] the contracts you are signing.

And that's not to say, you may be getting something out of it for example to build your portfolio or to put that on your resume, but at least you're getting something out of it, right? Where it becomes more of a concern, I think is where. Just end up doing things for free because somebody tells you you're gonna get exposure and that's not what you're getting at the end of the day.

[00:26:23] Mica: Wealthy off of those exposure bucks. If a client tells the photographer, Hey, we have our own contract. We don't need your contract, we prefer to go with ours, what's the first thing that they should do in that situation?

[00:26:36] Alyce: Get an attorney to review it, especially if it's a big company, and that will often happen. Most of the big companies, they want you to sign their contracts. It's mainly because they have a streamlined process. They want all of their contracts to look the same, and it all goes through one legal team.

Everything has to be consistent. There are reasons why those companies do that. Though that the photographer should still be getting that reviewed by their [00:27:00] own attorney. There's definitely going to be provisions in there that are gonna benefit the company rather than the photographer.

Versus when you have your own contract that's been drafted for your business and you know that it benefits you.

[00:27:13] Mica: Yeah, cuz y'all will know when that red flag comes up, you're like, Bing, Uhuh, let's address this. Let's get clarification on this. Or something's not very clear in this.

[00:27:27] Alyce: Most big companies as well, you'll be surprised how open they are to changing things and negotiating items. It's just that they wanna work off their standard form. And you never know until you ask, right? I always say that to clients as well. Even with things that I think we may not get, there's no harm in asking. In my experience, because you ask for something, they're not going to just throw the whole contract away, and that is what a lot of creatives are scared of if they push back on a contract that they're gonna just say, well, we don't wanna work with you and [00:28:00] walk away. I mean, I rarely, ever see that happen. Uh, there definitely is more of a discussion to be had, even with these bigger companies. Occasionally you have a company who says it's a take it or leave it, and then you need to make that decision whether you're comfortable with the contract or not.

But they're not going to just pull it straight.

[00:28:19] Mica: Do they expect some pushback on your part? Like is it a red flag to them if you just blindly, sign away?

[00:28:26] Alyce: I don't think it's a, a red flag to them. They probably like it because they get all of their contract signed. Right. In my experience, most even the bigger companies are open to negotiating contract terms for sure.

[00:28:39] Mica: A big brand made me sign a non-disclosure agreement and one question that I had from that whole experience that they couldn't clearly answer for me, which I'm surprised cuz they're the one who sent me the NDA. But I asked them, what about social media? [00:29:00] Like if I share a behind the scenes from a shoot, as long as I don't name the company, does that count?

And they couldn't quite answer that for me. So the question I have for you is, a, what is a nondisclosure agreement? And B, how can a photographer navigate the social media aspect of that? How can they share the work that they're doing without sharing about the company and still stay within the limits of that nondisclosure?

[00:29:33] Alyce: What I normally do for clients is draft a section about publicity and promotional uses, and that goes into those details. So most of the time, the company isn't going to want you to share things until they've released the product maybe. And then once it's released, you can put that photograph in your portfolio.

But that should be clearly stated in the contract so that it's clear when those things can happen. Obviously, in particular with [00:30:00] big brands, they're very protective on what is going out and what they want people to see before they're launching a product. So it makes sense for them to have those types of NDAs and confidentiality clauses.

In my experience, most of the time, the bigger companies are not going to want you to post anything until it's launched. And then they'll say, you can use it for your, simply for your portfolio.

[00:30:23] Mica: Are there red flags in contracts that photographers should look out for?

[00:30:30] Alyce: We've probably covered most of the big ones, ownership and licensing language is the biggest things I see confusion about particularly with photographers. Other things that should be looked at are assignment language. Can the company assign that particular license that you're giving them to another company? I have had clients in, in creative industries in particular with graphic design of see this happen where they create some sort of graphic, they do it [00:31:00] for one company, it's on a work for hire basis, assignment basis, and then all of a sudden they see another company using that same graphic. And it's because under the contract they were able to assign. With licensing, sometimes with licensing contracts, it will say we reserve the right to assign this contract to whoever we want. That's something else to look out for if you don't wanna have another company using the work that you're doing.

[00:31:26] Mica: Oh man, that would make me so angry. Because so much time and effort went into creating that and to see another website, using your work, sharing your work without your permission, it feels very violating.

[00:31:43] Alyce: That is the risk of work for hire an assignment. If you're doing that type of work, which there's nothing wrong with doing that type of work in particular, if you're doing a logo or something very specific for a brand like their product photos, right?

It's probably not going to be something that you as the [00:32:00] photographer are going to license to somebody else. It's their photos of their product at the end of the day. But you should still be aware of what that means at the end. They can do really whatever they want with it. They potentially can edit those photos, they can crop them or change the colors once they own 'em.

They really can do whatever they want with them.

[00:32:21] Mica: I know that ownership of images often comes up when it pertains to freelancing versus being an in-house photographer. You get hired as an in-house photographer, you're using the company's equipment and so technically the company owns the images and can do whatever they want with them.

Even though you're the one who took them, it's still their photo. And so those are things that like photographers need to think about before they jump into an in-house position. But then again, if you're an in-house photographer for [00:33:00] like HEB, I doubt that you're gonna be upset about a picture of potatoes or something.

[00:33:06] Alyce: And that's what I was getting at, right? There are really some things that creatives are doing that you, they don't have another licensing purpose. At the end of the day, it's just negotiating a fee that's big enough up front to compensate you for the uses that they may potentially use those photos for.

But you're definitely spot on in that if you are an employee, your employer owns everything that you create, and that doesn't just go for photographs. It goes for if you are creating inventions or if you are creating music or graphics or anything that you are making for your employer.

They automatically own that under copyright law.

[00:33:41] Mica: This makes me wanna dive into intellectual property. Every time I think about intellectual property it reminds me of the artist who basically screenshot other photographers work on Instagram and put it on a canvas, and he made like $2 million. He's been sued [00:34:00] several times by the photographers and every single time he's won his case because of the fact that he put the Instagram frame and model.

They consider that to be an original work of art. It makes you not wanna share your work because someone could go and make $2 million off of it just by screenshotting your picture.

[00:34:21] Alyce: So the artist is called Prince and he is a very well known misappropriation artist, is what he self-proclaimed. Misappropriation artist is what he calls himself. And like you said, he's been sued multiple times. There have been some cases that have ended up against him.

What the courts have generally been focusing on is a really interesting area of the law with those cases where they are saying that his work is transformative in nature and falls under the fair use doctrine. So what they're really looking at is, has the underlying work been used in a way that's different from its original purpose?

How [00:35:00] much of the work has been used? Would people purchase this work instead of the underlying work. Right? These are all factors that the courts look at when they look at fair use and transformative use in particular, with the Prince cases, has been pivotal to, to what the courts have been looking at.

In most of the cases they have come out instead that it is transformative. It is different enough. But there have been some where that has not been the case and the courts have said, no, you've overstepped here. And that is not transformative in what you are doing.

[00:35:30] Mica: He has no friends.

[00:35:33] Alyce: Every single piece sells fit in the millions. He is, you know, huge, huge artist. It's, uh, yeah, for those photographers, I know it's difficult. There were some other ones that, apart from the Instagram ones, he took these other photographs and he just added squiggles and circles on top of them.

And that was another big case. And in that case, I think it was about 50 50, 50% of the photos the court said, were transformative [00:36:00] 50. They said, no, you haven't done enough to, to change them.

[00:36:03] Mica: So that leads me into my first question. What are some challenges creatives face when they're trying to protect their intellectual property?

[00:36:14] Alyce: The biggest issue I see with creatives is taking off their creative hobby hat and putting on their business hat. That's really difficult for a lot of creative people because their work isn't only business, right? It's their almost like their children and they care about it. And there's so much passion that goes into that.

That's the biggest challenge I face with the creatives that I work with, is getting them to just put that other hat on, look at their work as a business and treat it as a business.

[00:36:46] Mica: Oh man I feel like you're, you're reading my soul right now because that's been the most difficult thing for me as a creative to get comfortable with and comes to terms with. It feels icky [00:37:00] because I'm an artist, but you also got to get hit with the idea that it is a business. What is your advice for food photographers who wanna protect their intellectual property, but they don't know where to start ? Like, where do you, where do they go from, you know, step one?

[00:37:17] Alyce: Step one is doing your research right, finding any educational resources out there. Google is your friend and there are so many websites out there that provide knowledgeable and correct information about starting a photography business, the steps from a legal perspective that you should be taking.

We've mentioned a few things like starting How to Start Your LLC and get that business side set up is really the number one thing that every photographer who's trying to make money off their work should be doing, and then moving on to things like trademark and copyright, and having contracts with every single person that you're working with and having contracts with your [00:38:00] subcontractors. Like your talent or people that are assisting you, your second shooter, right? Do you have contracts with these people? You don't have to do everything from the get go, but if you have a good comprehensive list of the legal things that you should be addressing, you can tick each one off slowly and, and get them done correctly.

Especially as your business grows. You're gonna have more of a need to look at the legal side of things. And the other thing to keep in mind is that your contracts are living, breathing contracts. They need to adapt with your business and grow with your business as your business grows.

A lot of people have one contract that they started out with, or maybe they got it from the internet or they got it from somebody else that they worked from previously, and as you grow is just not going to cut it. It might be fine at the start, but you're definitely going to get to a point where you're going to need something that, like I said earlier, is just tailored for you and your business, and then you should be periodically looking at that contract every [00:39:00] year, every couple of years, revising it and seeing if anything needs to be changed.

As attorneys, we can't draft for every single circumstance. We try and draft you. It's called a practice for a reason. We try and draft you a contract that is suitable at the time that we are drafting it. But that doesn't mean that laws change. It doesn't mean that your business changes. It doesn't mean that us as attorneys who have drafted that contract have run into new things in the future that we are now including in those types of agreements moving forward.

[00:39:28] Mica: I like what you said about needing to adapt your contracts with your business. I speak mostly for myself, but I've always imagined like contracts is one of those, set it and forget it type of things. It's like I just have one in place and it's there to send.

But thinking about it from that perspective as this is a living and breathing thing, I do need to keep it pruned and taken care of and protected. All those things like I do with my website and I do [00:40:00] with my books. You mentioned that as your business grows, that's the time to incorporate other contracts like the trademark and the copyright. How do you know when you're ready for that?

[00:40:13] Alyce: With photography, there is a copyright registration where you can actually register 750 photographs in one application for, I think it's, $85. They have to all have been taken within the same year. But that's a huge thing that you can take advantage of, right?

Most other creative areas don't have applications that are similar to that. For example, my graphic design clients or illustrator clients, most of the time they have to register each individual work for a fee of $65. Right. So as photographers take advantage, the copyright office has done you a favor.

[00:40:49] Mica: And then the trademark takes a year, but at least you can get that process started. My biggest fear is putting my [00:41:00] work out there mostly on social media. I signed up for a service called Pixsy, and I think we talked about this in our first call with each other.

And I found out that there were a lot of different websites using my work and most of the work, that they took from me and posted on their websites and their social media they actually got from my Instagram. What should photographers absolutely not be doing on their socials?

[00:41:31] Alyce: Yeah. It's hard because you wanna share your work, and I don't wanna say to people, you shouldn't be sharing things online. I think the nature of the way the internet is and the way that people treat the internet. People do think that online copyright just doesn't apply. It really has got to this point where I think people are just naive to the law.

They don't quite understand it, and quite frankly, they can most of the time get away with it because of how anonymous the internet can be.[00:42:00] In terms of what you shouldn't be doing, I mean, if you don't, if you don't wanna risk it at all, don't post online. But I don't think that's really a, a good solution for people.

Right. Um, but things you can be doing, uh, including a watermark on your photographs, right. And I know people can edit them and take them off, but it's that extra bit of effort that somebody has to go to to do that. To actually take your watermark off or crop it or, or whatever they're gonna do, right?

Using those third parties like Pixie that will help you reverse image, search your photographs and see who's using it and how they're using it. There's pros and cons to companies like Pixsy. There's approaches that you can take as photographers as well without using third parties. You know, you can identify people yourself. You can see if they're just an independent user who maybe is naive and didn't really realize what they were doing versus a major company who is taking your photographs and using them for commercial purposes. I think there's a big difference there.

One of them is maybe a, [00:43:00] hey, a nice DM to let them know or email to let them know that they shouldn't be doing that and asking them to take it down. The other one is, Hey, you are a business and you should know better and you should be paying me a licensing fee for your usage.

[00:43:17] Mica: One of the, uh, folks using my image was a, a high school publication, and I sent this official take down notice, you know, using Pixsy and, the teacher contacted me personally through email and he is like, oh, my students didn't know and I'm so sorry about that. And we took down the photo. I felt like a horrible human being cuz I'm like, these poor kids are just putting out a newspaper for themselves,

But I'm also over here like Scrooge Magoo, like take down my photo.

[00:43:48] Alyce: They won't do that again, ,

[00:43:50] Mica: Oh, definitely not. I'm sure that the teacher was like, okay, this is a teachable moment. And then I had another publication, it was business, [00:44:00] and they were using my photo, and I demanded either you take it down or you pay me some money, and they paid me money.

You think social media has changed the way we view intellectual property?

[00:44:10] Alyce: People online just think it's a free for all. They think that anything that's online is free to use however they want to use it. And there's definitely varying degrees of what people are using things for. I personally think that, you know, the remix culture of online is awesome.

It's such a collaborative, cool process that has so many people engaging in something, right? That's a really cool aspect of, of being online and, and the internet as a whole. But then you do really get that other side, like I was saying, where there's these people who just think that copyright doesn't apply to things that are online for whatever reason, and think that they can use things for any reason.

And I'm not gonna name names, but I've had very big companies who have done these to my [00:45:00] clients, and they just should know better at the end of the day. And Because of how much is out there. A lot of people who are doing this assume that they won't get caught or just are happy to deal with the consequences once they do get caught.

Uh, rather than try and negotiate for the rights and, and do the right

[00:45:18] Mica: Once it's on the internet, it's there forever. It's like when Khloe Kardashian, Kardashian, Kardashian, sent take down notices to every publication of her wearing the bikini photo cuz she's like, my grandma took this with her cell phone and it hasn't been edited and I don't want nobody looking at it and I'm gonna send a take down notice to every single person that posted.

[00:45:39] Alyce: That case in particular brought up some really interesting legal issues as well that had to do with fair use and reporting. And when you can use photographs that belong to somebody else, for news purposes and commentary and criticism, you can use other people's work without getting a license from them.

The question there is, well, [00:46:00] is news reporting on a famous person's body, important to the public, right? And, and whether that does fall under the fair use doctrine of or not is a very interesting area. The same with paparazzi. Actually. There's been a lot of paparazzi, photographers who then the celebrity has used the photo on their social media or for their branding purposes, and the person who took the photo is like, well, I own this. And you can't use it for your own branding, even though you are the one who's featured in the photograph.

[00:46:29] Mica: I have a love hate vibe for paparazzi photographers, cuz some of the photos they take are just so invasive, but because they have some loopholes, like it's in a public area or they're in a public area, that they can do that. And it's like, where's the line between? You know, is it morally okay?

We know that on paper it's okay, legally. but is it morally okay?

[00:46:57] Alyce: Unfortunately the law does not contemplate [00:47:00] the moral side of things. I think that's important to note as well. America in particular is very very protective of free speech and first amendment rights. Whereas in some other countries, paparazzi struggle a lot more with posting things.

For example, in the UK I know that the Queen and the Queen's family have previously dealt with a lot of issues with that in terms of invasion of privacy. Right. When, when you're getting to that point of it not just being a photograph of somebody who's doing something in public, but you're actually invading in their space.

[00:47:33] Mica: So you're from Australia? Correct.

Was it a huge shift to learn US law versus Australian law?

[00:47:44] Alyce: There's definitely differences in every country. There's differences in intellectual property law. A lot of the same concepts, carry over into other countries. I went to school here in the US so I learn intellectual property law at law school here.[00:48:00] I have a Australian law degree as well, so I have that information as well, but I was able to, to use both, so I wasn't kind of going, blindsided.

[00:48:08] Mica: If you have a dispute with a company that is not based in the US, how do you navigate through that?

[00:48:14] Alyce: That is part of the battle that I have with my clients when we are sometimes trying to go after people who are using the work, because they may be over overseas and a lot of the time they are overseas and you don't know what, who they are or what their identity is.

Or you find out the company name, but the company is just a shell company and you can't figure out who owns it. I like to call it, a whack-a-mole situation, right? You may be able to get rid of five and then another five pop up and you're trying to go after them at the same time.

It just can get really outta hand.

[00:48:44] Mica: Trying to find their email and you're like, who is this? And what is this? And I'm afraid to click on this link. I wanna close out with two questions. First, what advice would you give to food photographers who are afraid of getting sued?

[00:48:59] Alyce: I would say [00:49:00] don't let that rule your life. First of all. You shouldn't let that stop from creating or get you to a point where you're so scared to do anything that because you're scared of being sued.

I mean, litigation is extremely expensive for copyright infringement. The average lawsuit is about $300,000. So the reality of somebody actually suing you and going ahead and doing that is pretty small. They've gotta have some deep pockets and some um, real fight behind them. It's also a long process, an exhausting process. Most of the time what we see happen is you get settlements happening, right. The other thing I wanted to mention, especially for photographers, is we do have the new small claims court, and the small claims court allows for creators to bring copyright claims under $30,000.

It's a streamlined process. It's built for the pro se client, the pro se [00:50:00] plaintiff. So representing yourself, although you can have an attorney, it is recommended to have an attorney help you, but it's meant to be a streamlined process, to kind of avoid some of the. legal fees and stress that goes along with it by going through federal court.

As long as you're not being completely negligent and stealing people's photos and using them, I wouldn't just be scared that you're just gonna be sued for no reason.

[00:50:25] Mica: What do you hope listeners take away from today's episode?

[00:50:28] Alyce: I hope at the least. That it gets listeners thinking about when they should engage legal. I teach at Austin Community College, and that's one of the things I say to my students as well, I can't teach you how to be a lawyer. I can't teach you every single legal thing out there.

But at a minimum, if you are knowing what the red flags are, knowing when you need to engage an attorney, that's really my hope for anybody listening to this podcast or doing any of their own research and, and running [00:51:00] a business. Just knowing when to get help is important.

[00:51:04] Mica: Where can listeners find you?

[00:51:07] Alyce: Yeah, my website is www.azackylaw.com. I am on Instagram at attorney for creatives, and you can also email me at A L Y C E@attorneyforcreatives.com.

[00:51:24] Mica: Well, thank you so much for being on the show, and man, this, this was such a meaty, meaty episode. I appreciate you answering all of them and I know that the listeners will get a lot out of today's episode.

[00:51:39] Alyce: It was so good to be here and I, I hope that all the listeners get something out of it and, and walk away with some something they didn't know. Hopefully. So thank you for having me. It's been awesome.

[00:51:49] Mica: Everyone. Thank you for listening and until next time guys, thank you.

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