Recent Burning Questions From Event Planners & Photographers

From recent conversations with clients and other wedding industry professionals, I’ve noticed some common concerns and questions that have relevance and may be of interest to many other businesses in the special events industry.  Here are a few that have come up of late…

Mary Lee Herrington, Esq.

Instead of setting up a new LLC or S-Corp, can I just file a new DBA?

First check your specific state’s rules, though in most jurisdictions, technically a company can have multiple DBAs (a.k.a., Doing Business As Certificates or Certificate of Assumed Name – basically, any name under which you are conducting business other than the legal name of your company) for different lines of business.  However, it probably makes sense to do this if the new DBA provides a related service (e.g., a full-service event planning firm that now wants a new DBA solely for its month-of coordination service).  This will also result in bookkeeping and tax ramifications, so best also to speak to your accountant before making the jump.  On that note, if it is not a related service (e.g., a photographer who wants to now launch a stationery line), then it is probably better to keep the business entities separate, from both an accounting and contracts standpoint.

Also a quick note that while it may be easier and less expensive to just file new DBAs for new ventures or lines of business, you may also lose limited liability protections – e.g., if one of the DBAs should fail, then creditors can go after the other DBA/line of business and get paid from the profits of that business because, after all, the DBAs are technically and legally just different identities of the same company.  So while it seems easier and cheaper to just file new DBAs, best to speak to a licensed lawyer before taking this step to fully understand your options.

So if I do the above, can I name the DBA as the party to the contract?

You should name the correct legal entity (whether it is your name as a sole proprietor or the LLC, corporation or partnership) as the party to the contract, not the DBA.

What is the difference between licensing my photos and assigning copyrights to my photos?

This question has come up quite a few times recently from my photographer clients.  Short answer – it’s a big difference.

When you license a creative work – whether it is a photograph, graphic art, software, the list goes on – you are selling the right to use the creative work while you retain ownership over the work itself.  It’s like renting.

When you sell or assign your copyright to the work, you are effectively handing over ownership – including the right to license said work to others!

For a creative entrepreneur, especially those producing artworks such as photographs, it is probably a better option to agree to licensing.  For photographers, the most common licensing situation is typically when commissioned on a commercial photography shoot, though it is not unheard of for very private wedding clients to want to control the use of the images.  Always have a lawyer review your licensing agreements so that you fully understand the terms under which you are providing the license and so that your payment terms are covered.

I did all this work on a proposal for a client and they frustratingly did not end up booking me.  How can I make sure that I am paid for this work in the future?

Think about having them sign a short-form contract for this as consultation time with a fee in the amount that you think would be sufficient for your time/work.  To make it more palatable to the client, you can also offer to apply the fee towards their deposit upon booking so that they see it as an investment.  Make sure that whatever proposal or work product that you send to them states very clearly that it is your copyrighted, proprietary work, so that you lower the risk of anyone else passing it off as their own, whether on social media sites or even sharing it with another professional they end up booking.

Finally… Exciting News!  Hear me speak about these and other useful topics at Engage!16 at the Cloisters in Sea Island, Georgia this December!

I’ll be speaking at Engage! this December on common legal and contract law issues for creative professionals in the luxury weddings space.  Not only is Engage! an incredible opportunity for attendees to connect with peers and the best-of-the-best in the industry, but the summit is also committed to truly teaching and coaching its attendees on being stronger and smarter business owners.  I’m thrilled to contribute to this amazing line-up of speakers and fully intend to bring a helpful, substantive talk to the summit.

If you intend to go to Engage! this December, feel free to email me with topics that you’d love to learn more about and I’ll see if I can fit it into my session!  Hope to see you there!

{ Photo by CJ Isaac of Charlie-Juliet Photography }

Choosing Your Business Structure: Sole Proprietorship, Corporation, LLC

Recently, a peer and friend of mine changed her business entity from sole proprietorship to an LLC. This was a very smart move. Why? – it protects herself, her personal life, personal assets, and her family from any obligations and financial liabilities that arise out of the course of her business. If she were to default on a loan or face legal proceedings, her LLC status means that the lender or any other party seeking monies can go after her business’s assets, while she can feel safe that her house, her family bank account, her belongings, etc., are protected.

Mary Lee Herrington, Esq.

It made sense, though, that when she started out, she chose the easiest business entity: sole proprietorship. As a sole proprietor, she did not have to register her business with the state, pay fees, or open up a separate business bank account. It was easy to start business right away and accept payments. But once her business began to grow and she was working on projects that included subcontractors, vendors, planners as well as more demanding and higher-paying clients, it was crucial that she change her business entity.

Choosing the best type of business entity for your business will turn on certain facts such as the service/product you offer, how much money you can outlay for the business registration process, tax obligations, ongoing reporting obligations, whether you are a professional (i.e., lawyers, architects, engineers, doctors), among others.

I should mention that it is a very good idea to talk to your accountant or lawyer about which type(s) of business entity would work best for your business (and I should note that, YES, I also advise and help business owners with choosing and registering their business structure too).

Here are some of the most common types of business entities that creative entrepreneurs choose for their businesses (IMPORTANT NOTE: rules may vary state to state):

Sole Proprietor:

As mentioned above, this is the simplest type of business organization and the most cost-effective. In essence, your business is an extension of yourself – i.e., you can use your personal accounts to write and receive payments and there is no requirement to formally register yourself or your business with the state. However, many sole proprietors will not want to use their personal name and will file a very simple “Doing Business As” certificate under an assumed name with the local county clerk’s office (this does NOT create a separate legal entity). Doing taxes is also simple: business income is reported and taxed on a personal tax return. Once the business gets going, you really should switch to another business structure – one of the ones listed below are the most common among creative small businesses.

Corporation:

Discussing corporations can be extensive, so I’m only going to stick to main points here. When you form a corporation, your business becomes a separate legal and tax entity from yourself as the owner (or any of its shareholders). This protects the small business owner because the corporation is responsible for all liabilities and debts. All shareholders have limited liability, where the liability is capped at the amount the shareholder has invested.

The “C” status is the standard type of corporation. The “S” status (“s-corp”) is common among creative small businesses and essentially provides that owners are treated by the IRS as if they are sole proprietors or a partnership (i.e., the “pass-through” tax treatment whereby business income may be reported and taxed on a personal return).

S-corporations must have fewer than 100 shareholders, each shareholder must be either an individual or certain trusts & estates (but never a corporation or partnership), none of the shareholders may be a non-resident alien, and the corporation must only have one class of stock. To apply for S-corp status, fill out a Form 2553 with the IRS (and a Form CT-6 with the New York Department of Taxation and Finance). But, please also speak to an accountant first!

Both C-corporations and S-corporations must follow ongoing regulations for corporations. This includes certain record-keeping requirements at the federal, state and local levels, and periodic board meetings and annual shareholder meetings.

LLC:

A limited liability company (LLC) structure is now permissible in most states (including New York) and is a very common business structure for creatives because it offers the limited liability protections that you would get as a corporation and certain other beneficial tax efficiencies (particular tax classifications depend on the number of members in the LLC). Note that tax and liability treatment may vary from state to state. Operationally, this is also the most flexible of business structures. Notably, they do not have the same formalities (i.e., paperwork) that corporations are required to follow. Most creative small businesses are single-member LLCs (owners are called “members”), but there is no limit to the number of members and members do not necessarily have to manage the business.

Note that in New York state, registering for LLC status entails a publication requirement with newspapers and this part of the business structure formation can set you back a couple thousand dollars.

Professionals:

Those who want to hang up a shingle as one of the traditional categories of professionals – i.e., lawyers, doctors, architects, engineers – must check with their state to see what type of business structure applies to their profession as well as any other requirements from their professional, governing body. For example, in New York state, lawyers may either structure their business of legal services as a PLLC (professional LLC), PC (professional service corporation), or LLP (limited liability partnership, the most common type among lawyers banded together in business). It’s important to check with your state because, for example in California, lawyers are not permitted to structure their business as an LLC (and neither can any business which requires a professional license).

Interestingly, the business structure and requirements for legal professionals came up in conversation recently, a topic which a friend of mine and I remembered from the bar exam. To prevent the unlawful practice of law, any ol’ company cannot simply decide to add legal services as one of its business services. Legal services may only be offered by an organization that is formed specifically and only for the purpose of providing legal services and the owners of the business providing legal services must all be licensed lawyers. It cannot and may not conflate its services with another type of business service – for example, non-lawyer business owners may not tack on a legal services division to their company with the view to offer legal services to clients/customers, and any lawyer who associates him or herself with a non-lawyer in providing such legal services to clients can face disciplinary action; similarly, a lawyer who has formed a PLLC, PC or LLP also cannot then tack on another type of service (such as, real estate brokerage) to its existing business, but rather should form a wholly separate business entity for the non-legal service. A point of distinction: a company that has hired an in-house attorney is hiring the attorney to represent and act on behalf of the company, not offer legal services to clients (such as, draft the client’s contracts, provide advice on the client’s issues).

More info:

I’ve only provided a cursory overview of these types of business structures. To decide what’s best for your business, it’s a good idea to talk to an attorney. This journal entry only presents basic, general information and does not constitute legal advice and is not a substitute for legal advice. I myself am pleased to offer legal advisory services in choosing business structures and assisting with the registration process. For tax-specific questions, it’s always good to speak to your accountant or financial advisor.

As mentioned at the outset, switching from one business structure to another is possible and sometimes should be done.

{ Images by Aneta Mak }