In episode 390, Megan chats to Rob Finkelstein about why it’s important for food bloggers and photographers to have contracts.
We cover information about why you shouldn’t let difficult legal terms put you off in drawing up a contract, how a contract can help you define a relationship with clients, know which country and state your contract applies to and how to get basic education about legal terms.
Listen on the player below or on iTunes, TuneIn, Stitcher, or your favorite podcast player. Or scroll down to read a full transcript.
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Connect with Contract Legalese
Bio Rob is a lawyer, practicing for over 20 years in NYC. In 2017, Rob decided to pursue his passion of baking and went to culinary school for pastry arts. After graduating, not wanting to leave the law, Rob got started blogging at Cinnamon Shtick which was also his entry into food photography. He worked with a number of brands and came to represent lots of food photographers in connection with their contracts and business set ups. They all inspired Rob to create an online course about contracts specifically for food photographers.
- You need a contract.
- Do not fear negotiation.
- Having your own contract ready gives you a leg up to share your wants in writing.
- A contract spells out the what to expect going into a relationship to avoid pitfalls.
- You need to understand every word of your own contract.
- Don’t use ambiguous language in a contract. Include dates, platforms, etc.
- Have an artistic rights provision in your contract.
- Include a Limitation of liability in your contract.
- Be sure to include which country law’s apply to your dispute.
- Get comfortable reading terms and conditions of platforms you add your content to. T&C are a contract.
Understanding Food Photography Contracts Course
Discount on course – use code EBT50
Cinnamon Shtick – Rob’s Blog!
Click for full script.
EBT390 – Rob Finkelstein
Intro: Food bloggers. Hi, how are you today? Thank you so much for tuning in to the Eat Blog Talk podcast. This is the place for food bloggers to get information and inspiration to accelerate your blog’s growth and ultimately help you to achieve your freedom, whether that’s financial, personal, or professional.
I’m Megan Porta, and I’ve been a food blogger for over 12 years. I understand how isolating food blogging can be at times. I’m on a mission to motivate, inspire, and most importantly, let each and every food blogger, including you, know that you are heard and supported.
I think you guys are going to love this episode. I feel so much smarter after having spoken with Rob. In this episode, Rob Finklestein from Contract Legalese joined me and he talked about how important it is for food bloggers and food photographers to have a contract. He breaks it down and tells us what we need to have in each contract. Not only that, he explained what certain words mean, which I feel like doesn’t happen very often, so I can confidently tell you what the word indemnification means for the first time in my life. I am hoping that after you listen to this, that you will have some of that knowledge that we should all probably have as well. So enjoy the episode. This is episode number 390 and it is sponsored by RankIQ.
Sponsor: Eat Blog Talk is here to support you at every stage of your food blogging journey to help you accelerate your blog’s growth so you can achieve your freedom. We offer many services that will help get you on the right path no matter where you’re at in your journey. Don’t forget to check out our free discussion [email protected]
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Megan Porta: Rob Finklestein is a lawyer practicing for over 20 years in New York City. In 2017, Rob decided to pursue his passion of baking and went to culinary school for pastry arts. After graduating, not wanting to leave the law, Rob got started blogging cinnamonshtick.com, which was also his entry into food photography. He worked with a number of brands and came to represent lots of food bloggers and food photographers in connection with their contracts and business setups. They all inspired Rob to create an online course about contracts specifically for food photographers. Hey Rob, thank you so much for joining me on the podcast today. How are you doing?
Rob Finkelstein: I’m doing well. Thank you so much for having me.
Megan Porta: Yes, I’m excited to chat about everything legal issues with food photography. But before we get into it, do you have a fun fact to share with us?
Rob Finkelstein: Sure. So I pride myself on having a sixth sense in that wherever I am in the world, I just tend to find really good bakeries. Nowadays we have the internet and people can Google and find out, but I’ve had this my whole life, like pre-internet. When I was in Cardia on a cruise, we were there for a day, like 15 years ago, and I had no internet access or anything then, and I could just sniff it out. Like I just have nowhere to go. Saying that makes me feel like, I don’t think it’s as crazy as if you saw the movie Mean Girls, Amanda Cycling’s character at the very end where she liked is outside in the rain, grabs her chest and says there’s a 50% chance that it’s raining. I think my sixth sense is a little more well-tuned than that, but who knows? Maybe that’s the extent of it. .
Megan Porta: So can you explain it at all? What is it? How do you know?
Rob Finkelstein: I don’t know. I think just cuz I am like a carb addict and love to bake. It’s just like my passion and I just, I don’t know, it’s a lot of factors. The presentation of the bakery itself and how the products look just from looking from the outside before you even enter the bakery. I don’t know. It’s like a gut feeling.
Megan Porta: Have you explored bakeries in Chicago?
Rob Finkelstein: I have not.
Megan Porta: Oh my gosh. Okay. I live in Minneapolis, and I’m really embarrassed to say that I don’t know of many bakeries here, so you need to come to Minneapolis and tell me where to go. But I have been to Chicago. I have a friend who’s a baker in the Chicago area, and she took me on this tour one day of 10 bakeries. Oh my gosh, there are some good bakeries there. So if you ever get the chance, maybe when you’re at Tastemaker, go explore some of those. They’re so good.
Rob Finkelstein: Yeah, maybe I’ll stay an extra day just to go bakery hopping.
Megan Porta: Oh, you really could. You could make it a whole day. It would be worth it, especially since you’re a bakery lover.
Rob Finkelstein: That’s my kind of day.
Megan Porta: Yeah, and actually I will do some pre-research for you and share some of those with you before Tastemaker, because I think it would be worth your while. So fun to know that.
Rob Finkelstein: That’d be awesome.
Megan Porta: Yeah. But we’re here to talk about a completely different topic. We’re talking about legal issues that food photographers should consider. Being a food blogger, I think most people listening are food bloggers. So by default you are also food photographers. So Rob has some really pertinent and great information to share with us about everything we need to know. So do you just wanna dig in, Rob. Where do we start with this? What is the first key point that we should keep in mind being food photographers?
Rob Finkelstein: So before we even get to a key point, I do have to say one thing just because I am a lawyer and I’m always wearing my lawyer hat. Just for everyone listening, I am a lawyer, but I’m not your lawyer. Everything I’m gonna say here is really just informational, educational purposes. So now that we got that outta the way, let’s dig in. Truly anyone, and this doesn’t just pertain to food photographers or food bloggers, really anyone in business, you should have a contract. I think it’s so important for people to understand that. I think people get very nervous about contracts. They don’t understand what they say and because of that shy away from it and whatnot. I think that’s a bad practice. I will tell you, I’ve met photographers, not just food photographers and wedding photographers, all kinds of photographers, who say they’ve been in business for decades and whatever, they’ve never had a contract and never had an issue. That’s all well and good until there’s an issue. The whole point of having a contract is really to tell the story of your relationship with your client. It’s the Bible of your relationship. Or look at it as a detailed roadmap of how you both intend your relationship to work. It’s really the best way to protect your business and for your client to protect themselves also, is to have a well drafted, thought out contract. You know when you go through and try to draft a contract, you have to think, could this happen? Could that happen? That’s really what you’re doing in a contract. It’s so important to have, no matter what business you’re in. It’s especially important for food photographers because you have issues like, who’s going to own the images that you’re creating? Who’s gonna own the recipes that you’re creating? Who can use them and for what purposes? Hopefully you are getting paid for it. How are you getting paid? When does the payment have to be received by? If there’s a fight down the line, any sort of dispute, how does that get resolved? Is there a limit? Say you did something unintentionally wrong and they sue you. Is there a limit to how much you’d have to pay? So it’s just so important to have a contract. That also ties in a little bit to the business side. So why should you have a business entity, which is a whole separate conversation. But that’s also an important thing to do. If you do have a business entity, which I’m saying you should, make sure your contract has your business entity name and not your personal name. Your business entity is acting like a person. So these are all top level, such important things. But I think so many people, and not just food bloggers and food photographers, I think so many people in small businesses just dive in and don’t make sure that they have all these things buttoned up. Really, if you do that, you are just taking huge steps and protecting yourself and your business.
Megan Porta: Okay. I have a few questions I wanna ask you. So first of all, drawing up a contract, is that the responsibility of the food photographer or would you say It can depend?
Rob Finkelstein: So it really depends. I’ve worked with smaller brands that don’t have a contract. So then I use mine and they might try to negotiate a couple things here and there. That’s fine. The bigger brands and I’ve worked with some and I’ve negotiated, I’ve represented clients as a lawyer representing food photographers with bigger brands. They tend to push their own contract. I will tell you that the bigger brands are sometimes a little bit out to lunch on this. Just three weeks ago I had a food photographer client come to me. She was really excited. This huge global brand reached out to her. It was a really big deal, and she got the contract and was just what is going on here? The contract they gave her was actually an influencer contract. It wasn’t a food photography contract, and it turns out that this huge brand had never hired a food photographer for these sorts of purposes that we all do, creating images for their website and social media. They just didn’t have a form. So she was very nervous that I suggested doing this, but I said, let me just mark it up and rewrite the agreement so that it reads like a food photography contract, because it was just so backwards the way it was. And guess what? They accepted literally every change. They were probably happy they had someone do their dirty work for them and now they have a food photography contract that they can work with. The point here is, there’s several points to that story. One is, do not fear negotiation. If someone decides they wanna work with you, that’s where their mindset is. If you come back to them to propose some changes, their initial gut reaction will not be, oh, forget it. We don’t wanna work with you. I’ve never seen that happen. I’ve been practicing law for over 22 years. I’ve never seen that happen. There is an expectation that people are gonna come back and negotiate. So go and try. Yes, it might be the case that you can’t come to terms, so then it falls apart and you don’t work together. But it’s much better to know that before you start doing any work. That’s the whole point of having a contract to spell all this out and make sure there will be no issues down the line.
Megan Porta: So don’t be intimidated, even if it is a bigger brand. Don’t be afraid to speak up and say, Hey, this doesn’t even sound like anything I would be doing.
Rob Finkelstein: Absolutely. I actually say, especially if it’s a bigger brand, do not be intimidated because I can tell you what goes on with the bigger brands. Oftentimes they’re hiring out an outside agency to deal with this stuff and to find people like us to do this work. It’s the agency that’s doing this sort of negotiation. There is a disconnect there, I think between the agency and their client, the big brand. I think people need to be mindful of that. Listen, nine times outta 10, the people you’re negotiating with are not lawyers. They’re marketing people. Yes, they have some experience doing this, but they don’t know all the legal stuff behind it. I know this from experience, sometimes they’ll just say, okay, fine. I don’t want to have to go to our legal department because that’s gonna tie this up for another month, and we just need to get this going, so we’re just gonna agree to it. Sometimes that happens. So anytime you’re negotiating anything, do not fear, go try to negotiate. The worst they’ll say is no. If for some reason they say, oh, forget it. We don’t wanna do business with you, they’re not a good client for you.
Megan Porta: Not a good fit anyway.
Rob Finkelstein: I’ve never heard of that happening. There’s an expectation that people are gonna come back and negotiate.
Megan Porta: I feel like there might be some people listening who are in the boat where they are working with clients or brands and they haven’t established a contract or anything, but they need to maybe go do that. What do you do in that case when you’re already in process with it and you know you need to go back and write a contract. Does that make sense?
Rob Finkelstein: Yeah, absolutely. It’s a great question. I am aware of many food photographers who are operating like that. It’s been like a handshake and a wink. And thankfully for however long that’s been going on between that food photographer and that client, there have been no issues but that’s the whole point. What if there’s an issue and that’s why you need a contract. There’s nothing wrong with saying, listen, hey client, it’s been such an amazing experience working with you. I know I really appreciate the business and it’s been wonderful, but I feel like we really need to button this up into a more formal relationship. Here’s my proposed contract and send it to them. Negotiate whatever you have to do and get them to agree to it and sign it because it’s just gonna benefit both sides at the end of the day. The advantage for you in doing that as a food photographer that’s already have an established relationship with the client. Use your own form because you’re not gonna give them a form that’s completely one-sided in your favor, but you can have some terms in there that sway to your side. Let’s see if they negotiate it. You never know. They might just say, okay this works for us, and agree to it. That kind of brings me to another point that I think is so important. It’s so critical for all of us to have our own contract to work from. You also need to understand it. You need to know what every word means. I’m not saying you need to go get a law degree, but you just need to understand the mechanics of it and have a general understanding of what the provisions mean and how they work together. Because once you do that, when you get a contract from, let’s say a big brand, because they wanna force you to use their contract, they won’t even consider using yours. You can at least read theirs and have an intelligent conversation with them about some of the provisions and give a little pushback on your own. I think that’s so important. In an ideal world, everyone would have a lawyer to do this for them, but for food photographers, that’s really cost prohibitive to do for every single negotiation. So that’s why I think it’s so important for food photographers to get that education and know what it is that they’re reading, and understand it. That gives you a basis to negotiate with the brand.
Megan Porta: How do we educate ourselves on that? Because I have contracts and when I read through them, there are places, Rob, that I don’t even know what it’s saying. I’m like, hopefully that’s good. So how do we educate ourselves on that?
Rob Finkelstein: No, and I totally hear you. If I had not gone to law school, I’d be reading the stuff saying, what is all the gobbly gook? That’s actually a nice segue as to what I just did. I just launched an online class for food photographers called Understanding Food Photography Contracts where I give you my form food photography contract, and we go through it in very detailed discussion about literally each and every word. I go through the entire contract, explain what these words mean. I include a glossary of terms so that you can look at them and understand what some of these words mean. Like indemnification, that’s not a word that people use in common speech. It’s a word that lawyers use constantly. So it’s an important word for anyone in business to really understand. So I just launched this online course that goes through all that. I’m hoping that people will find it useful. I’m told by many food photographers who I’ve represented, they’re all the ones who put the idea in my head. I’m hoping that people will hop on board and appreciate it and learn something from it. Because I think this form that I did is very well drafted. It’s well thought out. I worked with a lot of food photographers in developing it. I think it’s useful because it gives you the education you need so that you can go look at someone else’s contract and get the basic gist of it. There might be some different words here or there, of course, but if you get the general understanding and you understand, oh, they want to license this for this purpose, not that purpose. It might not be the same as that language in your form agreement, but you have enough of a base to say, oh, I understand what they want, and sure that’s fine, or no, that’s not fine, and you can go back to them and negotiate.
Megan Porta: That is so smart to do that. Just to educate food photographers in general, all across the board on what the words even mean. We’ll put all of this information in your show notes page, but do you wanna just tell people where they can go to find that, real quick?
Rob Finkelstein: Oh sure. The website is contractlegalease.com. That’s the name of the entity that I formed to do all this. All the information’s right there. I also have a couple of others. So listen, people sell forms or people have free forms online. I did not want to just offer a food photography contract out there and put that up for sale. I think it’s meaningless if you do not understand what it says. Because the bottom line is that regardless of how many clients you have, even if you have just one client that you do work for consistently, each job is different. There are different demands. There are different things the client might want. They might not want you to be able to use anything you create on this one job, but the next month for something else they give you, they might say, okay, fine. You can put it up on your website, your social media and whatever. It changes. It’s a fluid situation. Your contract necessarily needs to change for each situation. The situation, yes, that differs client to client, but that can also differ job to job for the same client. That’s why I think it’s so important to have an education of what these words mean and how they all work together. So on my website, contractlegalese.com, you can purchase the course. There’s also a couple of bundles where if you get that understanding through the class of what these things mean, I felt more comfortable providing forms for other things. So I also have a form for an LLC operating agreement that’s really geared towards small business owners and food photographers specifically. I also have terms and conditions for a website up there, which is really just geared to food photographers and food bloggers.
Megan Porta: I thought you have just such a different way to go about this, like education is so important. Helping people understand what they’re even doing and then providing the contracts. I absolutely love it. Would you mind talking through maybe some of the key things that you feel like should be in a food photography contract?
Rob Finkelstein: Sure. Let me preface this by saying that in the template that I built, they’re all important, and I can’t say that there’s one that’s more important than the other. But what I’ll do is just highlight some of the more important parts of a food photography contract. So the first thing that I think comes to everyone’s mind is copyright. As a matter of law, once you press the button on your camera, you own that image. So anything that you say in your contract that is contrary to that basic legal principle, you’re giving away something. If your client is adamant about owning the images, then that’s a basis for you to negotiate a higher price. I can’t really think of an instance of why a brand or a client, maybe it’s a restaurant, whatever, whoever your client is, would need to own the images outright. But that’s your hook to say, okay, then you gotta pay up. If the price is right, sure, you can own it. But that’s an important thing to keep in mind. The real point there is that as a matter of law, you own it. That’s what copyright law is. When you press the button, it’s your image. So that’s really the basis for negotiation, and that takes us to the next important point, which is licensing. Assuming that you’re gonna continue ownership of your image, licensing is really what can the brand use those images for and for how long? This is where you spell it all out and where can they use them? Can they use them on all social media platforms? My advice is always to get as specific as possible in the contract. I would never just say that the client can use whatever images on social media. I would spell out which platforms. So if it’s just gonna be Instagram and Facebook, then spell it out. Because what happens if they also say, oh we wanna use it on TikTok. Maybe you wanna up the price a little bit if they’re gonna do it on a third platform or some other platform on top of that. Those are all ways for you to get more money. The same thing with the licensing, to the extent that it’s just a term. If a brand hires you to make holiday cookies, that they wanna use those images, whether on their website, social media, wherever for the months of October, November, December, in a particular year, get a licensing fee for that. Then maybe they come back a year later, they want to use the same images. So either you have it already in your agreement how much they’ll pay, or you amend your agreement and agree to another three months for the next calendar year during October, November, December.
Megan Porta: So being really specific.
Rob Finkelstein: Exactly. The worst thing you can do in a contract, and I think it’s why some people shy away from it, is if you have ambiguous language. Meaning that it could be interpreted more than one way. You want to avoid that kind of language, because that’s the language that invites litigation. Because just think about it. If something can be interpreted more than one way, then you have a disagreement right there. So the odds are more likely that there’ll be a fight down the line. I use that example by saying social media, that’s a little bit ambiguous because you’re giving them free reign of all the platforms. Whereas if you get very specific and say which platforms, there’s no room for error. There’s no room for confusion or anything like that.
Megan Porta: That’s a good point. And who knows? A new social platform could pop up between now and a year from now, and then maybe that would cover that even.
Rob Finkelstein: Say that does happen. Okay, great. So then maybe that new platform takes off and people are excited about it and the brand wants to use stuff, whatever you created for them there. That’s great. Enter into an amendment to the agreement and put in an additional price for that, and it’s a win-win.
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Megan Porta: Oh, this is good. I just know like having specific dates, platforms, really specific things in mind as you’re writing your contract. What else do you keep in mind?
Rob Finkelstein: Yeah, so I really don’t know what is the most important because it all ties together, but this I think is very important. Is having a provision in there about artistic rights. The bottom line is, if you are a photographer, you’re really an artist. It’s the same thing if you’re developing recipes, if your contract is just for recipe development, no photos, it’s the same thing. I think it’s so important to have a provision about artistic rights to say, you are an artist. This is your vision of how you do this work. They’ve looked at your portfolio and I would put in the agreement that they’ve seen your portfolio and they know that whatever you’re gonna create is going to be consistent with your portfolio. That sort of language is so helpful because if they come back to you and say, oh, the right side of the image is a little dark, or we don’t like the fork in that place, that is what I call subjective nonsense. I would push back and say, no, like that. This was my vision for this work and this is consistent with my portfolio and I’m not gonna redo this. But that also begs another important thing to add into your contract, is make sure you include a fee for doing any reshoots. If they are gonna invoke what I call the subjective nonsense unwritten provision, then they gotta pay for it. We all know it’s time consuming to get a good shot and then to edit it. If they want you to redo it, you might have to remake whatever the recipe was like. It’s gonna be a lot of time and energy, so I always include a reshoot fee.
Megan Porta: That’s something I did not, I failed on that one early on in my food blogging journey. It still haunts me. It was a horrible situation. I would not recommend going through that for anyone. So yes, I think that is a huge key point. Okay. I have a question, Rob. Can you explain the word indemnification please?
Rob Finkelstein: Basically indemnification means, it’s such an important provision. It’s in probably every contract that if you ever have occasion to read any contract outside of food photography, there’s probably an indemnification provision. It’s one of those like boilerplate legal provisions that’s in there. What it means is that the other party has an obligation to step into your shoes and defend any lawsuit brought against you, pay your lawyers and or pay any damages that could be assessed against you in court. The point of it is, and I’ll try to give a food photography example. What if you’re hired as a food photographer to do recipe development and create all these images and your client, this big brand, says in the images, we want you to use this product also. So you just say, okay, this is what my client wanted. Sure. What if it turns out that your client did not own the rights to that product, or they don’t own that product at all? They have nothing to do with it and the actual owner of that product gets wind of it and then finds out that you are the one who took the photograph. You’re susceptible to a lawsuit there. So you know what’s gonna happen there, you did this because your client told you to. You took direction from them. I include language in my contract that provides for this situation and requires your client to indemnify you, step into your shoes and guard you with a sword and shield and pay all the damages because they’re the ones who caused this. They caused you to get sued because they insisted on you using this other product.
Megan Porta: Oh my gosh. That was the best. I totally understand it now. Thank you so much.
Rob Finkelstein: Oh, good.
Megan Porta: I can go to bed and just, yeah. Mission accomplished today.
Rob Finkelstein: You’re having indemnification dreams.
Megan Porta: Yes. Oh gosh. Yeah.
Rob Finkelstein: It’s such an important thing to listen, I think in our world, in the food photography world specifically, I think it’s a rare instance where it will need to be utilized, but that’s the whole point of a contract, right?
Megan Porta: You never know.
Rob Finkelstein: You’re laying the groundwork for any possibility, regardless of how likely it is to happen.
Megan Porta: Yeah. Anything else in the contract that you wanna touch on that you feel should be there?
Rob Finkelstein: Yeah, I guess there’s really two more things that go hand in hand. One is a limitation of liability. What that means is you are limiting the amount of money you would have to pay if you, whether intentionally or unintentionally, do something wrong and get sued. Say you are allowed to post the images that you created for a brand on social media, but in your description of it, you infringed on someone else’s trademark and it opens up a whole door and causes some damages. Maybe someone files a lawsuit. Anything could happen. Your client could say that you breached the agreement for some reason. So what does that mean? You have an indemnification obligation to them probably. Because going back to indemnification, it’s usually a reciprocal thing, meaning you both indemnify each other if a third party comes out there. So that’s frightening for a small business owner like us, which again, is also why you should have a business entity. But the whole point of the limitation of liability is to put a ceiling on how much you’d ever have to pay out. It gets a little nuanced. I go into this in a much greater detail in my course. Sometimes, the indemnification provision gets excluded from the limitation of liability because they want to make sure that they’re made whole, if you have to indemnify them, it shouldn’t be subject to a limitation. But you can put in language saying that, for any sort of fight between us, you and your client, the most in damages you’d have to pay is $500. You can do that. If they agree to it, that’s wonderful. You can make that reciprocal too, so that the most they’d have to pay if they do something improper is the same. But you have to be more thoughtful about it because what if you create an image for them that under your agreement, they’re permitted to use for only three months of the year. They go and they use it for nine months. They’ve now breached the agreement. But if you’ve agreed to a limitation of liability that’s reciprocal, the most you can get is that $500, if that’s the limit. It’s a balancing act and you gotta walk a fine line and really think it through. Again, I go through this in much more detail in my class.
Megan Porta: Yeah. I feel so much smarter all of a sudden. Thank you.
Rob Finkelstein: Oh, good. That’s the best thing I could hear.
Megan Porta: That’s your whole objective, right? To educate us, make us feel smarter. Yeah. What’s the last one that you wanted to talk about?
Rob Finkelstein: The last thing that I would really think about too is a choice of law provision. This is also standard in most contracts. Put in a provision that says, in the event of a dispute, and by dispute generally that means litigation, if someone is suing the other party, put in a provision as to what state or what country’s laws will apply. If you don’t have a statement to that effect because everyone, especially, in today’s world, people are all over the world. Back like a hundred years ago, everyone who was doing business were basically in the same vicinity. If I was in New York City, I was probably working for someone in New York City, so any fight would be under New York law and it would be filed in a court in New York. Those days are so long over, so it’s so important to think about, what would happen if there’s gonna be a dispute, if my client’s gonna sue me or I have to sue my client? If I live in Nevada and my clients in Virginia, what’s gonna happen? You spell that out in the contract. I generally, as the smaller entity, being a food blogger, a food photographer, I put in the state where I live. Because it’s going to be expensive for me to hire a lawyer in some state where I don’t know anyone. If I have to go there to testify or do anything legally, then I gotta travel. Usually that argument goes well with brands to say, listen, you’re the Goliath, I’m the David. So you have deep Pockets, you are all over the world. You can come to Nevada. There’s no reason why you can’t. As to which state’s law will apply, that’s so important because you can get into a whole separate litigation over which state’s law would apply. It’s a costly and stupid fight to have when you just put a one sentence statement in your contract saying, the laws of the state of Nevada will apply to the interpretation of this agreement.
Megan Porta: What if nothing is set for which state’s laws apply? Does it default to one?
Rob Finkelstein: No, it’s a very, it’s a very complicated legal analysis courts go through.
Megan Porta: Oh boy.
Rob Finkelstein: It ends up being very costly. Sometimes, more often than not, the court can make a decision, but it’s dependent on so many factors. Like where both parties are located, whether you’re doing business in that state, in whether you’ve ever entered that state. There’s so many things that the courts look at and it’s weighing all the factors together. Sometimes it’s pretty cut and dry and a court can make a decision very quickly, but sometimes it’s not. The longer it takes and the more fighting there is just over that issue, gets very expensive. You can easily nip that in the bud by just putting the statement in your contract. The truth is, if you do live in Nevada and you’re working with a client in Virginia and they insist on having Virginia law apply and they won’t budge fine. Better to agree to that so that there’s no fighting over which state’s law. Because you can still, if there’s nothing else said beyond that, you could still file a lawsuit in Nevada against that client. The Nevada Court would apply Virginia law and its interpretation because that’s what the contract says, and the court can do that. But sometimes you have another sentence in there that says that, in addition to which state’s law will apply, that any dispute must be brought in a particular state. That sometimes you can get a party to agree to that. Sometimes they won’t, in which case don’t include it. The sentence to always have is which state’s law will apply to the interpretation of the agreement.
Megan Porta: This is all so great. I wish I had met you like 10 years ago. I could have avoided some strife. I haven’t had a ton, but I’ve worked with a few brands and didn’t know a lot of this and definitely had some repercussions. So I hope that this conversation really helps people to think through all of this and just avoid some of those struggles that can be helped with literally one sentence, right?
Rob Finkelstein: That’s just it. Once you know the basics of all of this, do it more and you read it. Seriously, you need to read every contract. Even if you’re doing a contract for the same client, but a different job, and you have to change some things around because it’s different, whatever reasons that they’re having you do work, read through the contract from beginning to end. We all do it. If we just focus on the paragraph that we change, we miss stuff because everything interacts with each other. Once you have a basic understanding of how it all works out, it really becomes much easier. Unfortunately you learn the hard way with a lot of this stuff, but that’s also how people learn. So it’s not a bad thing that unfortunately we didn’t meet earlier, but it’s a good experience to have had. Just so you know, it’s an educational thing. What I’m hoping to do with this class is for people to avoid learning the hard way and learn the smart way and get this education and understand what it all means.
Megan Porta: So we’ve talked a lot about contracts for food photography businesses. Would you mind talking through potential legal issues on social media?
Rob Finkelstein: Yeah, and it’s interesting because I’ve had a lot of food bloggers and food photography clients come to me about social media specifically on Instagram. You know what is the law there and what’s going on? Do people, do brands own my images because I tag them or I used the hashtag that’s become associated with their brand? The answer is no. That’s just not how it works. I will say, I should say generally no, because people try to play games. So if you go and read Instagram’s terms and conditions, there’s nothing in there that speaks to this at all. There’s one thing, there was a case that I’m a little upset that it settled last year because I would’ve been interested to see where the court would’ve gone. But there was a case that invoked the terms and conditions of Instagram and said, Instagram gives me a sub license. So I can repost anything that I see on there. It was a very weak argument. That’s why I was curious to see what the court would do with it, but it ended up getting settled, so we have no idea what would happen. But my point is, if you tag a brand or you use a hashtag that’s associated with that brand, you’re not giving them any rights. But there are brands out there, which I do think are smart on their part and I’ve had this happen to me a number of times where they leave a comment on my post and say, we would love to repost this. Please respond yes if you agree. Here are our terms and conditions and they include a U R L to their terms and conditions. It’s also a little cute to do it on Instagram because there’s no links. So you have to literally go and type it into the browser, which is so frustrating. But I’m like that, I feel like they’re taking advantage of that instagram setting that doesn’t allow you to just have a hyperlink. But I do that and I go when I read through, and nine times out of 10 when I go and read their terms and conditions, it’s all self-serving language saying that they’re gonna own all rights to the images. They can use it for whatever purposes they want. They can sublicense it, basically they’re gonna profit off of it and I’m not gonna see a penny from it. So I read that and I responded, no way. That’s just ridiculous. These are some big national brands, so be careful. It’s so important to read all these terms and conditions and whatnot. I think we all get super excited when a big brand like that reaches out and we’re like, oh, wow. But no. Read what they’re saying because if they’re happy enough with your image that they think they wanna profit from it, then they need to pay you for it. I’ve done it too. I’ve written back and said, I can’t agree to this, but I would love the opportunity to work with you. In some instances they’re like, oh, we don’t have the budget. Then, okay, then stop trying to steal my work. But, sometimes they write back and say, okay, let’s talk. I’ve gotten some work that way. It’s definitely a way to take advantage and get in there.
Megan Porta: This applies to not just to social media, I’m assuming, but also any other platform where you might be putting your images?
Rob Finkelstein: Absolutely. O here’s what I’ll say. With social media, those platforms are designed for people like us. They’re designed for creators. They want us there. They want us to feel safe and like our stuff is not being stolen. So their terms and conditions are generally favorable. By they, Pinterest, Instagram, Facebook, TikTok, their terms favor creators. So that’s a good thing. But there are other websites out there, just to name a few, like Food 52 or the Feed Feed. Go read their terms and conditions. You might agree to what they’re saying there, and that’s fine, but I really want to beg each and every one of you before going and posting on their platform, go read it, see what it says. You might be giving up some rights. I can tell you from reading them, you are giving up rights. For some people that might be okay. It’s really a business decision for everyone to make. For me, it wasn’t okay. I don’t agree with their terms and what they’re trying to do with my creations, both the recipe and the images. But that’s me and that’s my opinion. You as a business owner might make a different decision and that’s totally acceptable. But don’t do it blindly. Don’t just be posting recipes on these other platforms. Go read their terms and conditions and see what they say. Honestly, everything I’ve said today, I think that’s one of the most important things. I think people get so excited to be on a bigger platform and to get that recognition. We all love that. It’s great, but be careful. Don’t do things blindly. Read through these terms and conditions. Terms and conditions on a website are a contract. They are enforceable. They’re dictating the relationship because it’s a very one-sided agreement. So I’d be very careful, and I can tell you that there are third party platforms out there that have hidden in their terms and conditions language about posting on social media. Which I cannot see how in the world that would ever be enforceable. But if they’re putting it in there, that means they’re doing it and they’re trying to assert ownership over images in which you use their hashtag on social media.
Megan Porta: Wow.
Rob Finkelstein: Even if you’ve never been to their website. There’s no way I can imagine that would ever be enforceable. But if they had the thought to include that in terms of conditions, that suggests to me that they’re doing it. They’re trying to profit off of people, and I’d just be very careful. Listen. I’m a lawyer, so I don’t trust anyone, so that’s just how I roll and I’m very suspicious of everyone and everything. So I read these things and I just say, no, I’m not agreeing to that. There are some third-party platforms that their terms and conditions are, they make sense. So it’s okay, if I post on there, it’s their website, it’s their house, it’s their rules. So if I’m gonna post my images and my recipe on their website, it’s in their terms and conditions that they’re gonna own it. Okay, so the way I avoid that is I don’t post it on their website. It’s just that simple.
Megan Porta: Wow. This is enlightening. Rob. I feel enlightened and also skeptical now. I think as food bloggers, a lot of us are not lawyers like yourself, so we’re very trusting. Oh they’ve got our back. They have our best interest in mind. Is not necessarily the case. So just read those terms and conditions. I have maybe once read terms and conditions. I’m bad at that. So I will be better at that.
Rob Finkelstein: I think most people are. I’ll tell you, when I first started this, I didn’t read the terms and conditions. Because I was so excited to be dipping my toes into this lake and I was like, oh my God this big whatever, reposted my thing and I didn’t think about it. It took me a little bit of a year or so of doing it, but I was like, I should really see what these terms and conditions say. None of us think about it. Even as a lawyer, I didn’t think about it at first. But it’s so important.
Megan Porta: That’s why we’re having this chat. Just to bring it to the top of mind and not to feel bad about it, but to consider it next time we have the opportunity. Is there anything we forgot? I feel like this was such a good conversation, but let me know if we’ve missed anything.
Rob Finkelstein: I think that covers everything that I was hoping to address. Listen, there’s so much more, and that’s why I created this course. I go into social media in much more detail as a bonus section to my course. There’s a lot there. If you go to the contractlegalese.com website, you can pull up the whole curriculum there. So you see everything that I talk about in the class. But there’s really so much to know, and I think what I’m hoping with this course is to get out there . Once you get this little bit of education, I think it’s gonna arm each and every food photographer and food blogger out there to be more confident. I think this also begs the question, with that knowledge and that confidence, I’m hoping it will help all of us negotiate better fees. There’s ways to use some of these terms as leverage. For example, if they want ownership, okay, pay more for it. That’s an easy one. But having that knowledge base of how contracts work and what everything means, it opens the door for you to negotiate better terms for yourself, whether that’s in terms of compensation or just other provisions. It’s so important.
Megan Porta: Rob, thank you for making me smarter today and thank you for joining us. We really appreciate. .
Rob Finkelstein: Oh, thank you. I really appreciate you having me. This was really fun.
Megan Porta: Do you have a favorite quote or words of inspiration to leave us with today?
Rob Finkelstein: The one thing that I always say to myself, which I’ve been saying for years, and I will qualify it and say that it’s usually about food. I always say, you don’t know unless you try. Yeah, I usually say it about food and I’m like, oh, I should try that. I don’t know if I like it. But I really, that’s my mantra in life lately that you don’t know unless you try. Listen, I put myself through culinary school while running my law firm because it was just a passion I had and I always wanted to do it. It was just like, you know what? I won’t know if I’d like it unless I try it. I did it and it’s like how I’ve gone and after culinary school I started my blog because I don’t know unless I try. I took a food photography course and I started this online contracts course because I don’t know unless I try and if it all works out great. If not, alright. At least I know I tried.
Megan Porta: Oh, I love that. That’s such a good way to live and that’s very inspiring. Thank you for sharing that. What a great way to end. We’ll put together a show notes page for you, Rob. If you want to go look at those, you can go to eatblogtalk.com/contractlegalese. We will put all of the information about Rob’s course in there and everything else we’ve talked about today.
Rob Finkelstein: I do want to mention too, that I am offering a $50 off code for the class. It also will apply to any bundles on the website also. The code is EBT50 for Eat Blog Talk 50.
Megan Porta: Oh, awesome. That’s so generous of you. Oh gosh. Yeah. That’s amazing. Thank you. So definitely check that out. Then we’ve talked about this, but do you just want to reiterate where everyone can find you if they want to find you, Rob?
Rob Finkelstein: Sure. The website is contractlegalese.com. I also have that same Instagram handle and my blog itself is Cinnamon Shtick. Which is also at Cinnamon Shtick on Instagram and that’s the blog URL as well.
Megan Porta: I love your blog name. That’s the best name ever.
Rob Finkelstein: Thank you so much.
Megan Porta: That’s so great. Thanks again so much for being here, Rob, and thank you for listening today, food bloggers. I will see you in the next episode.
Outro: Thank you so much for listening to this episode of Eat Blog Talk. If you enjoyed this episode, I’d be so grateful if you posted it to your social media feed and stories. I will see you next time.
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