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 }

Protecting Your Work Product on a Collaborative Project

Any creative business working in the special events industry knows that the beautiful image below showcases the work of many different collaborators.  While the “author” of the image itself is the photographer (in this case, Judy Pak) and all usage permissions run to her, there isn’t a single “author” here for the event itself, although a strong argument can certainly be made that the planner and event designer have perhaps a larger role in creating the overall event experience.

Mary Lee Herrington, Esq.

Although most people know that the copyright holder of the image is the photographer and are also aware of the photo usage etiquette among the vendor team, what I find many business owners don’t think enough about is all the work product that went into creating this event in the months prior – the work and drafts of work that are often disseminated to the various vendor team members and clients (e.g., spreadsheets, creative briefs, floor plans, event design renderings, PhotoShop templates, stationery lay-outs).  It is not uncommon to hear of former clients as well as freelancers and interns deciding to launch their own business following their experience working in the industry and presumably having access to and copies of all of this valuable work product (e.g., brides wanting to become wedding planners / second shooters wanting to start their own photography studio / interns wanting to start their own floral design company / etc.).

While it is certainly difficult to police, as a business owner, you can make it abundantly clear that this work product is yours and may not be used without prior permission.  Think about making this clear in your various contracts, on the individual documents themselves and in any correspondence.

As a hardworking business, you wouldn’t want to hear of your documents and other know-how being used by others for their own commercial purpose.

{ Above Image and Photography: Judy Pak Photography // Event Coordination: Brianne Ford // Design & Styling: Joyce & Ko // Flowers: Orange Blossom // Stationery: Rifle Paper Co. // Venue: International Polo Club }

Client Privacy & Confidentiality Agreements

With over-sharing on social media being so pervasive these days, it is no small wonder that many clients (whether of the famous or non-famous variety) are asking event vendors to sign confidentiality agreements. While it is certainly understandable that clients want to protect their privacy, creatives should still review the Non-disclosure Agreement, or confidentiality agreement/clauses, very carefully before they, too, sign on the dotted line.

chazcruz_cynthiaeli_53

Creative businesses often rely on images and film footage from their clients’ events and commissions in order to showcase and market their services to future prospective clients, not to mention the clout and professional respect they might receive from the community and current client base from being able to say that such-and-such was their client/commissioned project.  So when a creative business signs a Non-Disclosure Agreement or when clients insist on adding a confidentiality provision to the services contract, this means that a significant part of the creative business owner’s future marketing endeavors, and potential connected sales, could be hampered.  While it is important to make the client happy first and foremost, creative businesses should also read the NDA and confidentiality provisions to see what exactly can and cannot be used or disclosed.  There may be some wiggle room to negotiate here on using some aspects of the commissioned project for marketing purposes.  Additionally, the creative business could add a monetary component to the NDA or confidentiality clause too.

So who provides the NDA?  Typically, it is the party who wants to protect their privacy.  However, it is also very common for a client to review a vendor contract during the booking process and demand that the business add confidentiality clauses into the contract – this can also be a great opportunity for the business owner to negotiate what could be excluded from the confidentiality covenants.

It’s also a good idea to get the rest of the team members to sign the company’s own Confidentiality Agreements.  You don’t want a freelancer taking an iPhone photo and blabbing about the famous client’s wedding and getting your business into trouble, do you?  Of course not.  That would be breaching the confidentiality covenants that YOU (i.e., the business) agreed to.  As I like to say to clients (and to my kids!), better safe than sorry.

IN OTHER NEWS…

We are thrilled to launch our new Clients page! Nothing is more gratifying than receiving ebullient praise and thanks from happy clients. For more information on how we can help you with similar legal needs or custom contracts, contact us here!

{ Photo by Chaz Cruz }

Client Contracts: 5 Tips For Your Fine Print This Valentine’s Day

Since this romantic holiday often results in many newly engaged couples, wedding industry entrepreneurs should make sure that they are booking new clients with a contract that clearly encapsulates the services they will provide in the months ahead.

Mary Lee Herrington, Esq.

Here are my Top 5 Tips for your Wedding Vendor Contract as you book these newly engaged couples:

  • State clearly what your services entail and any limitations. Will you provide limitless site visits, or does your fee only cover up to X number?  How about travel expenses and per diems?  How many revisions of the stationery suite are included in your design fee?  Will you provide retouching services on every single image from the wedding gallery?
  • State clearly your policy on rescheduling vs canceling the service. What exactly is your policy?  Will you reschedule the wedding for a new date at no cost?  Will you refund any money if they cancel by a certain time?  Does it depend on the circumstances (which are)?  Do you have a force majeure clause?
  • Make them agree to be nice and cooperate. Planners, I am thinking of you here.  You need to be treated like the professional that you are, not a punching bag!  So much of planning weddings also entails timely feedback from the client, so make sure you get them to agree to work in a collaborative manner.
  • Enumerate your Day-of Teams. What happens if the clients’ plans wind up being so much more elaborate than when they first started talking to you for a quote, and now you need more help on the day?  And are these team members freelancers or employees?  Have you gotten them to sign contracts too?  There are significant legal and tax implications for each designation, but you also should be sure that an increase in staff numbers is reflected in your contract with the client.
  • Limit liability and indemnify your business. Make sure you cover yourself, whether you choose to state it in the most advantageous terms for your business or agree to mutual covenants here that cuts both ways between your business and the clients.

I will leave you with one final thought: make sure the contract fits the event and the client.  Just like no two weddings are ever the same, the same goes for clients and their contracts.  Good luck signing them on the dotted line and have a happy booking season!

Mary Lee Herrington, Esq.

{ Photo by Charlie Juliet Photography }

Cancellation Policies and Refunds

The standard practice among most business owners in the wedding industry is to require 50% non-refundable deposits from their clients.

Mary Lee Herrington, Esq.

I’ve been thinking a lot about these deposits and cancellations recently – from both the client’s and business owner’s perspectives. From a wedding/event business owner’s perspective, the non-refundable deposit is crucial to their livelihood – after all, their calendars are booked months (sometimes over a year!) in advance and they often turn away other work and other requests from would-be clients in order to commit to that particular event. But, what happens or should happen to paid monies when there is an unforeseen circumstance beyond either party’s control? – such as, a sudden health issue, pregnancy, or a natural disaster?

I’ve seen so many contracts that are surprisingly unclear on the issue of refunds and the transferability of deposits/paid fees, especially where it involves these unexpected life developments.

Sometimes it is not very straightforward and business owners will have to weigh other business-related factors, not just the legality of liquidated damages (i.e., the non-refundable deposit amount when the client cancels/breaches). Business owners will have to consider preservation of goodwill, reputation (after all, we do live in the age of Yelp), and the time involved in arguing with an unhappy customer. That is to say, you want to be understanding of unexpected circumstances that lead to some form of cancellation or request to reschedule, however business owners also have to balance the desire to be fair and considerations of retaining good will with the bottomline, which, for small businesses, is not insignificant (losing a date during high wedding season most likely means losing potentially thousands of dollars in revenue, since there is a very high likelihood that, depending on the time when the cancellation occurred, the vendor wouldn’t be able to fill that date with another job).

This is where it’s important to really think through what circumstances would be okay for you and your business to agree to refunds or transferability of deposits and paid fees. In the context of weddings, you have a date far into the future and your service – whether you are a stationer, planner, florist, designer, caterer – often begins months in advance. What specific parameters should be imposed on refunds, bearing in mind the time/work you’ve already put in?

What about a rescheduled date? – even if they wish to continue retaining your services, a new date may very well mean re-doing a lot of the work that you have already completed, in which case, do you charge a new deposit? – do you transfer the deposit and paid fees but add an additional fee to cover the additional time/work involved specifically related to the cancellation?

What about when it’s not the client’s decision/cancellation/change of heart, but you (the business owner’s) or your employee’s? What do you do with that “non-refundable” deposit when you must cancel the booked event due to a health issue, sudden health issues involving family members, or other personal circumstance that you had no control over or no idea about when booking the job?  What do you wish to do if cancellation were indeed due to your own circumstances, yet you have worked on the event for quite a few months, perhaps even beyond the monetary value of the deposit?

So, here’s my best practice tip: when thinking through these hypotheticals, revisit your cancellation clauses. Consider if you want to impose limitations or drop-dead dates. Consider what makes sense from a business/fiscal standpoint and reputation, then make sure the clause covers your bases. Basically, it’ll be easier for you to hark back to the contract where the clients had agreed to the explicit cancellation policy than for you to shuffle awkwardly on your feet when/if the awkward time comes.

{ Photo by Marianne Taylor }

Best Practice Tip: Thinking Ahead About Client Responsibilities

Whatever type of creative business that you own, it is not only important to think about what your responsibilities are and will be, but also about what the clients’ responsibilities should be. Some of these responsibilities will vary depending on the type of service that you provide or the type of event or scale of the project. In certain circumstances, the responsibilities will also vary depending on the client themselves, such as where there are particular cultural or family traditions or where the client or their guests and family have public notoriety and fame. The key is to think about the particular unique characteristics of that client and their project or event and how those characteristics might impact your ability to deliver impeccable service.

Mary Lee Herrington, Esq.

For wedding planning companies, clients often rely on you to achieve everything with respect to the wedding. But there are some actions that the clients must undertake on their own and which planners simply aren’t able to do for them. For example, for a foreign client or a destination wedding, the client will need to ensure that they comply with the country’s immigration laws. The client will also need to personally apply for all the necessary licenses with the local authority. Should you be held responsible if they don’t meet the strict rules and timeframes for their visa applications? Since they are often relying on you to keep them on track of everything wedding-related, even though the planner is not their immigration lawyer or travel agent, some clients may assume that you just happen to know all of the particulars because you are in the business of weddings. It’s a good idea to, at the very least, discuss the limitations of your wedding-related service in the beginning of the project, and, better yet, get it all down in writing.

For any vendor who works events, they should also think ahead about how their service or property can be affected by the guests and guests’ actions. Where planning companies sign contracts in lieu of their clients, damages resulting from disorderly conduct leading to fire hazards or property damage could very likely end up in your lap. Photographers may also find that, when clients expect an extensive shot list of images and family portraits to be produced from the event, the family and friends from such a list have wandered off from the main event space – here, it’s the client’s responsibility to facilitate the process so that the photographer can take the photos, not waste time rounding up guests. For stationers and graphic designers, their clients are responsible for chasing down all of those RSVPs and then supplying and signing off on all copy for the various printed goods so that the printers (whether letterpress, engraving, or flat printing) can be produced in time.

A smart business owner should set forth the clients’ responsibilities not only in contractual terms, but also factor those complicated needs in the amount calculated for deposits. If you only take minimal deposit amounts from your client, then you may have to cover the cost of penalties in the event of unforeseen circumstances (e.g., cancellations, rush printing orders, rush deliveries, etc.). It’s understandable that creative business owners do not want to seem too pushy in telling clients they too have “work” to do on the projects, but it will save you a lot of hassle, potential liabilities and unsatisfied customers in the long run, not to mention laying the groundwork for a healthy professional relationship.

{ Photos by Polly Alexandre }

Landmark Decision on Marriage from the Supreme Court

Wedding vendors take note! – if you haven’t already, your client contracts should now be edited where applicable to not just refer to “bride” and “bride & groom”!

Mary Lee Herrington, Esq.

Many vendors I know have planned, photographed, produced and advised same-sex couples in those states that had already legalized same-sex marriages, but what Obergefell v. Hodges now does is make it possible for same-sex couples to get married in all 50 states and have their marriages recognized legally wherever they travel, live or move within the United States in addition to the practical financial planning they can now do with joint tax returns on the federal and local level and receiving social security benefits after one spouse passes away.

This will undoubtedly have a far reaching impact on the wedding industry as a whole, not just in the sheer number of weddings in the country now that same-sex couples in every state can get married (business owners: think of all the new potential clients for your goods and services!), but also in the number of destination weddings that same-sex couples can now plan without considering where it’s legal and where it’s not, in the number of same-sex wedding features in magazines and blogs, and the general perception of “wedding” in our social consciousness.

What an exciting time for couples and the wedding industry!  So I think it’s fair to say that now is a great time to update your website, marketing materials and, most importantly, your contracts!

ps: in light of his predilection for snarky zingers, here is a funny Scalia burn generator! #lawnerd

{ Image via The New York Times }

Best Practice Tip: Adding Protections Into Your Contracts

For my inaugural newsletter, I thought I’d talk about my own experience as a solo business owner in the wedding industry and what I’ve learned along the way about adding protections into your contracts.

Mary Lee Herrington, Esq.

Like many new entrepreneurs, I started my event planning business with rose-tinted glasses and hit the pavement running. In many ways, it was so busy just getting the business off the ground and then figuring things out on the fly that sometimes it felt impossible to stop and make sure all the ducks – legal ducks, I should say – were in a row.

My experience showed me that you can’t predict everything when it comes to weddings – after all, every couple is unique and, especially these days when couples want their weddings to be bespoke, a form contract may not cover everything that is eventually demanded of you.  I found that my contracts would always have to be reviewed, tweaked and tailored to each client after I had learned something new or experienced a different unforeseen incident from the last wedding that I had wrapped.

And as time went on and each client wedding brought new challenges and predicaments, I always went back to my agreements and reviewed them in light of the new experiences and tightened the language to protect me in the future. It wasn’t necessarily “bad” things that would prompt me to do this – rather, and often, it was due to things I realized from just doing the work.  It was things like realizing that the massive quantities of wedding favors needed extra days to assemble (ergo, a proviso for additional fees and staffing), or noting that clients must inform us of guests in wheelchairs and seniors who needed separate transportation options (adding additional liability language in addition to the existing indemnity clause); or just making sure that all the time leading up to the wedding day was correctly spelled out and covered in the contract.

I also spoke to many of my peers who told me they had similar issues but weren’t sure how to reflect it in their contracts. Sometimes they just didn’t know what to do and instead of sticking to their guns, they would forfeit a deposit, lose a wedding date during high season, work many hours for free because they had not set out clearly with the client what the expectations would be, or absorb the cost for rush jobs or printed mistakes when the clients had already signed off. Sometimes, perhaps unfairly, a situation can even result in bad word of mouth or a demand for refunds.

It is so easy to think that because weddings and events are about parties and celebrations that business will always be fun and people will be lovely to work with. And we hope always true!  But realistically, even if you are the type of person who actually does get teary-eyed at every “You may kiss the bride” moment, the fact remains that this is and should be regarded as a business, not a hobby or a personal favor, and a business whose interests you should protect. After all, if you are a sole proprietor in an unlucky situation, your personal assets – not just your business – could be vulnerable.  Albeit an egregious example, the fact that couples like this one actually decide to sue is a scary reality and you never want to find yourself on the receiving end!

So here is my best practice tip: after every wedding, jot down notes on where you think things could have gone wrong (and of course those things that actually did go wrong, however minor or major) while it is fresh in your mind.  Then go back to your client contract and see if it covers you on all of those points.  If your contract is lacking those provisions, then think about getting a lawyer to help you with revisions.  Because every client is so different and there are so many chefs in the kitchen on a wedding day (the parents/in-laws who may be footing the bill and think of themselves as the client rather than the couple, a demanding bridal party, the guests who may view you as their personal valet), you will find that a very generic form contract is not enough and that you need to add more protections.  Just having these protections in your contract not only covers you in future contractual work, but it also offers that lovely thing called “scope” – meaning, your next client will read it and, at the time of booking you, understand that these are your terms and your boundaries.

{ Photo credits: left image, Aneta Mak // right image, Judy Pak }