Mica: [00:00:00] Welcome to the 72nd episode of The Savory Shot, the podcast about the art and soul of working in food photography. Y'all know who I be. I'm your host with the most, Mica McCook. I'm a food photographer, visual storyteller, and full-time survivor of contracts I probably should have read more carefully.
More on that in a second. But first, y'all, the love, I have to address it. Y'all, y'all, you sure know how to make a girl feel special. The love coming in from this community has been absolutely unreal. Every review, every DM, every tag, I see it, I feel it, I appreciate every single one of you. So to the day oners who have been here since episode uno, [00:01:00] thank you for growing with me.
And if this is your first time tuning in, welcome to the Hot Mess Express. You're one of us now, boo, so buckle up. Now, before we get into today's goodness, I just gotta ask, did y'all catch episode 71? Because if you missed it, please go back and listen immediately. I sat down with Rani and Uduak of 1117 Collective, a Lagos-based food and lifestyle photography duo, and y'all, it was the show's very first two-guest international episode.
I hope y'all enjoyed that as much as I did. I had a blast learning about how Nigerian food is represented in the media. And y'all, it's a conversation you do not wanna sleep on, so if you have not listened to episode 71, it is waiting for you. Go listen. I'll be right here. But [00:02:00] okay, but now, I need to talk about today's episode because this conversation, it genuinely changed how I think about my business, and I don't say that lightly.
So without further ado, I am excited to introduce y'all to today's guest, Rob Finkelstein, a man of many, many talents. Y'all, Rob is a food photographer's dream come true. He is a lawyer who actually gets our world. He gets the food business, how they think, how they see, the contracts that show up and it's not even written for photographers, it's written for influencers.
The clauses that you're just supposed to trust are fine. Rob is the person who tells you that they're most definitely not always fine And he's a food [00:03:00] photographer himself, so he knows how we think, how we worry. Like, he knows. And what I love is that he does all of this, teaches you all of this without making you feel like an idiot for not knowing.
So a little about Rob. Rob is a lawyer, as I said before. He is a lawyer with over 20 years of experience. He went to culinary school for pastry arts in 2017. And y'all, he did that while running his own law firm. Oh, my goodness. He turned that creative detour into a food blog. He got into photography. He created an online course called Contract Legalese, built specifically for food photographers.
In this episode, Rob breaks down what every food photographer needs to know about contracts. For example, why negotiating won't scare brands away, how influencer [00:04:00] agreements are wrong for photographers, the boilerplate clauses that can cost you big, who actually owns your images, and how diversity certifications unlock brand opportunities.
But y'all, before we get into this episode, I need a favor from you. If you know a photographer who's been signing contracts on vibes and prayers, y'all send them this episode. Seriously, this one is a gift. You are blessing them. So do that, and then grab your coffee, grab your pen, grab a notebook, and let's start the show.
Welcome to The Savory Shot, a biweekly show about the art and soul of working in food photography.
I'm your host, Mica McCook. Every other Wednesday, I sit down to chat with professionals in the industry so that you feast on only the best tips and strategies in the business. All right, y'all, [00:05:00] let's get started.
Rob, thank you so much for coming on The Savory Shot. I'm so excited about this conversation because it has been a hot minute since we've had a lawyer on the show, but a lawyer that specifically caters to food photographers, that is just so fantastic. So thank you so much for being on the show, for joining us.
Rob: Oh, thanks so much for having me. I'm excited to speak with you about all the legal stuff and more.
Mica: And more. And more. So I wanna get this started and on the road. You are a unicorn of many talents. You're a lawyer, a pastry chef, food blogger, and photographer. What is one thing you've learned about yourself through all of these different careers?
Rob: I think I've always known, [00:06:00] but I think I've, because I've taken on so many different things, I've really affirmed for myself that I am a multitasker, and I know that I am just more engaged and focused when I have lots of different things to do. Being a full-time lawyer obviously keeps me very busy, but I love that I have this other stuff going on that I can do, and it's more like the creative side of me and things that I'm really passionate about, like baking, that I get to do in my off time, the weekends and evenings and stuff.
So I think that's one thing that I've really- I've always known it, and when I see people who have one thing to do and they can't consider anything else going on in their lives, in the world or anything because they need to focus to get that one task done, I don't fully understand that because I'm just the polar opposite.
But I've learned to take a step back and appreciate people who are the opposite, and they need to just focus, and I now know I can [00:07:00] give them the space they need to accomplish whatever they need to do while I keep doing a gazillion different things at the same time.
Mica: I'm one of those people who can only do one thing at a time.
Rob: No, and I think most people are like that. But
Mica: I want to be a multitasker. You called pastry school your non-midlife crisis. What did you mean by that, and what led you to go at that time?
Rob: Well, I think I said non-midlife 'cause I don't wanna admit that it was midlife, but let's face reality. It was a midlife crisis.
I've been baking since I was a kid. I started, I don't know, when I was in, like, middle school or something, box mixes, and eventually, like after, like several months of making Duncan Hines cakes and brownies and cookies, I said to my mom, "I wanna make cookies from scratch." And she was just like, "Okay, go ahead."
So I started just making recipes and stuff and learning it, and I ended [00:08:00] up coming up with my own cookie recipe, like, by the time I was in high school. And it's been a passion, but it's because I'm a carb addict and I love sugar, so w- what's not to love about getting the end product that you want and crave constantly?
So I mean, that's how the whole baking thing started and I could have gone that route. I think because of parental issues, I went more the academic route, and I ended up pursuing a legal career, and I certainly don't regret it. It's been amazing so far and, but I love that I was able to bring it all full circle later in life.
And so what happened is that I became a lawyer, worked for a couple different law firms. In 2013, I started my own law firm with a partner- And a few years later, I just had that creative itch burning. And I don't re- fully remember, but it was when Instagram was really getting started with videos, and one of the culinary schools in New York City had a competition, and there were...
The grand rewa- [00:09:00] award or whatever was a full scholarship ride to culinary school for pastry arts. And I'm like, "Oh my God, that would be amazing. I wanna do that." But I was too scared. I mean, I had no problem going into court and arguing cases, but I was, like, very nervous about being on video and... 'Cause it was all just new, and I didn't grow up with that.
So, I don't know, I just kinda came out about doing it, didn't know what I would do, and then I took a step back and I realized, okay, if I wanna go to culinary school for pastry arts, I can do that. I- thankfully, I make a good living. I can afford to put myself through. I don't have any children, so I'm not paying for their schooling, so I can do that.
And I just was like, "Okay, I'm gonna do it." And I checked out a couple of different schools in New York City, where I was living at the time, and I picked one, and that was it. I went nine months. It was three nights a week from 5:30 to 10:30 PM. It was insanity, 'cause I'm running my law firm while doing [00:10:00] all of this, but I didn't miss a second of class.
I can't say that about law school. I learned a ton. I met amazing people I'm still close with today. And about a year and a half after, I was like, "Okay, now what am I gonna do?" I love baking and all of that, but I also love my life being a lawyer. You make decent money , so I didn't wanna give that up. And I just, out of nowhere, was like, "I'm gonna start a blog."
Of course, I knew literally nothing about it, but I launched in January 2020, and then the pandemic hit, which I hate to say this, 'cause it was horrible for everyone, of course, but it worked to my advantage 'cause like everyone else, I was at home and I was able to really l- just focus on it since I was working from home during working hours.
But then I had no commuting time or anything, so that freed up some more time every day that I could work on recipes. I realized after my first couple of posts that my photographs were [00:11:00] atrocious, and even looking at them, I was like, "I wouldn't wanna make that," and I made it, and it's delicious. So I enrolled in Foodtography School school and then a real camera, and within six months, I started getting work from brands.
And so it all really came full circle because of the Foodtography School Facebook page. There were so many people. It was so active then because so many people were taking that course- And so people were asking all kinds of contract questions and other legal questions for their food photography business.
So I started answering them, and then people started coming to me, and I started... People were hiring me to help them through just general legal business issues and negotiating and drafting contracts for them, negotiating with brands, negotiating with agencies. So one of the very first people I ended up working with, she put it in my head and was like, "You should create an online course so that food photographers understand contracts because she's, none of us [00:12:00] know what we're doing.
We're just signing on the dotted line and hoping and praying that it's the right thing." And I was like, "Oh, that's not good. You all should understand what you're negotiating and what you're signing." So I then took her advice and I created this online course.
Mica: Sometimes midlife crisis are good. I mean, I guess I c- I would call them a renaissance of some sorts, 'cause you spend so many years in the cog, the wheel, and then you realize, you know what?
I need something else, and you go and you seek that out, and so it's like another new lease on life. And I love that it was pastry school for you. For me it was photography. But in the Foodtography Facebook group, 'cause I know what group you're talking about, and it was such a lively group. I was really sad that the school program or the online class program, they discontinued it, 'cause I felt like it was so helpful to so many people.
What was a common question [00:13:00] that majority of the members asked that they should know but they didn't know?
Rob: People were asking good questions. There was never, and there isn't, a dumb question because if this isn't stuff that you are familiar with, you didn't go to law school, you aren't like...
You didn't have some other career where you were negotiating contracts, you wouldn't know any of this stuff. The biggest issue, I think, and the most common questions were around copyright and who owns the images, and how does that all work, and how do you leverage ownership and licensing out your images.
So there's like a legal side to it, but there's also a business side, and when you understand The legal parts of a contract, it really empowers you and gives you more confidence so that you can negotiate the business aspects. And by the business aspects, I mean hardcore cash. I mean, what are these people gonna pay [00:14:00] you in exchange for using your images, and the length of time they get to use it, where they get to use it, how they get to use it, if they can reproduce it, if they can make any changes to it.
Everything comes with a dollar amount attached, and that's all stuff that you can negotiate, and I think people got very nervous about that. And the other thing, too, is is I saw this with a lot of more just beginners getting their feet wet, and they would get their first sort of brand deal. They were so petrified to go back to the brand to negotiate any part of the contract, and it's, well, wait a minute.
They've already approached you because there is something about you or your work that they're interested in, so there's already interest there. You're not gonna scare them off because you go and negotiate a contract. If that were the case, no contract would ever be negotiated. I mean, that's business 101.
You've gotta negotiate. And I've never... I've been doing this for 25 years. I've never seen a party [00:15:00] walk away solely because someone tried to negotiate. I mean, are there times where the parties get to an impasse? Of course, and then you decide to walk away 'cause you realize, you know what? This isn't gonna work out for us, but better to know that before you start doing the work.
But just the fact of contacting the brand and say, "Hey, can we just tweak this language?" And, "We'd prefer that it says this, that, the other thing," or, "That's really not gonna work for me. I understand you have a budget, but I need to make at least this amount of money." Going and having that conversation doesn't scare the other side away, and that was something I think that a lot of people just really didn't appreciate and were just nervous about 'cause they had never done it before.
Mica: I can definitely say that I didn't know to negotiate. I didn't know to really look through contracts, and I learned hard lessons with every shoot that I did where I was like, "Okay, I guess that's going in my contract the [00:16:00] next time I do another shoot like this." You mentioned that many brands would send agreements, and it was more targeted towards influencers than actual photographers.
So walk me through that influencer agreement that you ripped apart and said these needed some changes. What were some changes that transformed it into f- like an actual food photo contract?
Rob: This was actually for a client of mine who, I mean, she had made a big ... She'd already started working with huge brands, and so then she got contacted by a global brand, and she was so excited to work with them, but she got the agreement and she's, "Okay, this does not feel right."
And so she sent it to me. I mean, the title of the agreement was Influencer Agreement. And I'm like, okay, well, right off the bat, they're not hiring you to be an influencer. She's not appearing on the camera. She is taking photos, and I think maybe doing a couple reels or something, of actual [00:17:00] food products.
I mean, she's not front face of the camera. So it's already, this sounds weird. And I start reading it through and it's just everything's reversed. It's the polar opposite of what we commonly do in a food photography agreement. And so in this influencer agreement, for example, the brand was asserting ownership of literally everything.
I mean, all of her images, but also to the extent that she appears in them, and there was, of course, a release that she's giving that she's going to be in the images and all this stuff that just was completely inapplicable. So, I mean, I completely reworked the whole thing. I changed it to, the title I think I made it was Food Photography Agreement, so that it was clear what this was, and I just ripped it apart and changed it around.
I mean, there were things that were just completely inapplicable, like FTC guidelines and disclosures that they were requiring her [00:18:00] to make when she posted on social media. But none of that applies to a food photographer who's not appearing in the images and not endorsing anything, but just being hired as a third party to snap photos and take video of the brand's food.
So it was interesting to see because I've, the agency that represented this global brand is huge and I've, I know the lawyers there. I've negotiated with them before. And I was just so surprised and shocked that they came back and said, "Oh, we accepted all your changes. We had never worked with a food photographer before.
We'd only worked with influencers, so thanks for all these changes." So okay, so now meanwhile, my solopreneur food photographer client basically paid for them to get a new form for food photography. I applaud my client for having the wherewithal to recognize that this didn't smell right and it didn't feel right, and she didn't just go and sign it.
She's, "Okay, I don't understand this. I [00:19:00] need someone who does," and she got me involved and we got it all straightened out, and she went and did the work. She made great money off of it, and this was, I think- Two or three years ago, and I think she's still doing work for them. So it was a great lucrative thing, and I mean, all the things I've already talked about, don't fear negotiation.
I mean, this is it. And she had done that before. She had negotiated agreements, but she was, because I really marked this up, there was a lot of redline, she was very nervous that she would lose them, and I was like, "No. Trust me. They're not gonna walk away. They wanna work with you. They just don't have the right agreement in place."
And that's exactly what happened. So that's, like, the lesson I'm trying to get in here. Go negotiate. Get what you want. Get what you know is right, and if they don't give it to you, then that's a big red flag.
Mica: Is it almost expected on the client's behalf for the photographer to negotiate?
Rob: I mean, listen, the end of the day, whether you are a food photographer, whether you are a painter, [00:20:00] whether you are a plumber, whether you are an electrician, whatever you're doing in life, no one should just be signing on the dotted line without reading and understanding.
There, there could be times where the other side presents you with an agreement, and it's very fair, it's very reasonable, the provisions are reciprocal, there's no major issue, and you're, "Okay, I can sign this." I think that's rare, but sure, it happens. But the expectation is you are a businessperson, so act like one.
You need to negotiate, and you need to advocate on behalf of yourself, and the best way to do that is to understand what all this means and how it all works together.
Mica: That makes so much sense. And you said something, you're a business, you need to act like it. I know for creatives, that's so hard to do, start thinking like a businessperson when it comes to contracts.
Rob: I get it. As a creative, we all kind of [00:21:00] just wanna, everything's happy and good, and be creative and all that, but even the most creative people are running businesses, and you've gotta be a businessperson. You just do. You have to have the confidence to speak up for yourself, and you're not gonna succeed in any business without that.
That's just plain reality. So you gotta suck it up, and just, okay, I'm gonna take on this role and act like a businessperson. I mean, literally, be an actor, and do it. Take on a different persona. Do what you have to do to really negotiate and advocate for yourself. I mean, that's what you need to do. In terms of being a business, that, it blends into a legal question, which I think we talked about pre-production also, is do you form a business entity?
And the answer is yes. I can't scream it from the rooftops loud enough. Absolutely. First of all- Putting aside the legal issues, which I'll... I can talk about quickly, but from a marketing perspective, for me, when I [00:22:00] see that someone I'm gonna hire is not operating under their own individual name, but as a corporation or a limited liability company or a partnership or whatever type of entity it is, I already have some level of respect.
It means this person is serious about business, they have a real company, and it's so important. I mean, from a marketing perspective, that's huge. From a legal perspective, it is so critically important because if you just operate under your own name, even if you go and register your name as a DBA, doing business as some brand, whatever that you created, there's no protection there.
That is a worthless endeavor. It's archaic. I don't know why it's still offered in the world. It should just not be allowed, frankly. It doesn't give you anything from a legal perspective. The purpose of creating an entity like an LLC or a corporation is that the second you form it, [00:23:00] you go onto the IRS website, and I'm only speaking, of course, about the United States here, and you get a- an employer identification number, an EIN, which is the equivalent to a Social Security number.
So that entity is like a person. That's how it's defined. It is a person, and that person now, when you're operating your entire business under that umbrella, that is the person that is responsible and liable. So heaven forbid you infringe on someone else's trademark in the course of your work and you get sued, your company should be sued, your LLC or your corporation, not you individually.
So that protects you. If you get sued individually because you never formed an entity, guess what? If you inadvertently infringed on someone's mark and you get sued and they win, I mean, you could go [00:24:00] bankrupt. That exposes all of your personal assets, your bank account, your jewelry, your car. I mean, you want to avoid all that.
That's why you create this window, this barrier, or wall actually, between yourself and your business entity. It's just protection. It's smart. It's... There's no reason not to do it. The costs are minimal compared to potential liability down the road. So I mean, anyone who says to me I'm not doing that. I don't wanna do that.
I'm just like, "That's the stupidest thing I've ever heard." It takes literally five minutes to form. Yes, it's a few hundred bucks here or there, depending on what state you're in. Just do it. It's the best money you'll ever spend. It makes you real. It gives you the protection you need. That's not to say there aren't ways around it.
There's a legal theory called piercing the corporate veil, which could come into play. You can avoid that. Piercing the corporate veil means that, okay, you have an entity, an LLC, or a corporation. I'm suing you [00:25:00] because you infringed on my trademark. Okay, that's it. But I'm going after you personally, too, because this is just a sham, the LLC or corporation you created.
It's really just an extension of you personally. And the reason why someone could do that is if you commingle all your funds, if you don't have a separate bank account for your entity, but you're putting it all in your personal bank account. You don't have a separate credit card for your entity. You're just charging it all on your personal stuff.
That sort of commingling invites that argument for piercing the corporate veil. So, don't do it. It's a separate person, treat it as one. Get your own bank account for the company. Get your own credit card for the company. Keep separate books and records from your personal stuff. That's the best way to make sure that your small investment in creating the entity will pay off at the end of the day.
Keep it all separate.
Mica: If my husband were, were here listening to you just now, he'd be, like, doing the bow down, 'cause he's [00:26:00] an accountant, and he's also a musician. And so a lot of his musician friends will come to him, and they'll ask him all these tax questions, and he's, "If you had kept a solid set of books throughout the year, this would not be an issue."
He also found that a lot of the musicians didn't have an LLC. There was, like, no protection whatsoever, and it drove him nuts. And 'cause th- this lead to my next question, but you already answered it, about what's the one nightmare scenario that should convince someone to file an LLC tomorrow. And if losing everything isn't a, a nightmare enough scenario for you, then I don't know, I don't know what else would be.
I guess people just think, "Oh, I'm careful. It won't happen to me." I don't even know what I would say to someone like that. It can happen to you. What would you say?
Rob: And I've had that. I've had a commercial photographer who's been in the business for over 30 years, and her attitude was, "Well, I have [00:27:00] been working for 30 years.
I've never had a problem. I've never been sued." Well- Okay, that's wonderful, but what if you do get sued? I mean, that's the whole point. I mean, you're not a fortune teller, and we're all human, and even if you're the most careful person, something could happen. You could end up snapping a photograph of someone who's in it, and you end up using it for a commercial purpose, but you never got a release from them, and you get sued.
I mean, why would you take that risk? .. It could be very unintentional on your part. That's the point. You just wanna keep it all separate because you don't know what can happen.
Mica: So if there was a checklist of, for photographers from a legal standpoint of what they should do if, I wouldn't say if they're starting out now, but maybe they do have things mixed up and they don't have an LLC, what would you tell them to do, three things right now, to at least protect themselves?
Rob: Well, honestly, this applies to anyone who's been [00:28:00] doing this for some period of time, whether it's a year, 10 years, 30 years, and someone who's going to start out today. It's the same advice. Form an entity. Absolutely form an entity. Do not wait till tomorrow. Do it now. The sooner you do it, the better. Get separate bank account, get a separate credit card for your entity once it's formed.
This stuff does not take much time, and I actually have a very dear friend of mine from high school who is a creative. She's a copywriter, and she put it off for years, and finally she woke up and realized, "I really need to create an entity." And she dragged her feet doing it, thinking it was gonna be such a burdensome thing to do.
I was like, "Listen, we'll get on a Zoom call. We'll do it together." It took literally five minutes. And then she's like, "Oh, that's it?" I'm like, "Yeah. Like, I don't know why you made it such a big deal in your head. It's not. Just do it and you're done, and go to the bank, get your bank account, and keep it all separate, and that's the end of it."
It's very simple to do. I don't understand what the [00:29:00] apprehension is here, but absolutely do it.
Mica: When it comes to anything relating to legal, it just feels like this big, giant, daunting mountain, and it's scary, and you don't wanna go through it. I know for me, that was ... It was just overwhelming to even think about, like, where to start, what to do.
Rob: For a little plug here, that's why I created my course about contracts and all the legal stuff involved there, because there's no reason why anyone just going to, to photography would know any of this stuff without doing the research and learning it. That's the importance of learning it all and understanding it.
There may be some verbiage you're not familiar with, but look it up. Listen, we're at a day and age where you can just go online and Google stuff, and I'm not advocating to do legal research online. I'm actually the opposite. I'm very hesitant to believe anything I read. But just to get a definition of a term That, it could be very useful for that to help you [00:30:00] understand in your head what is the gist of this.
But if you don't fully understand it, talk to a lawyer. I mean, it's the smartest thing you can do to protect yourself and ... But that's what I do in my course. I explain what all these terms are. I have a form food photography contract, and I go through it literally word by word and explain what it all means and how it all works together.
And I think with that understanding, I know everyone who's taken it has told me that it's just been so beneficial, not just in their food photography business, but just in life. I mean, someone hired a home improvement contractor and gave her this contract, and she was like, "Okay." And she started reading it and said, "Wait, I understand this.
I know what this means." Because 90% of what's in any contract is very similar language. I mean, there are nuances for food photography around intellectual property rights, like ownership of the copyright and licensing. But otherwise, a lot of stuff is very, carries over contract to [00:31:00] contract. And once you get a lay of the land and you understand it, you are empowered to negotiate and look out for yourself.
And there might be clauses in there, you're like, "Whoa, I'm not agreeing to that." And you can push back and say, "I'll sign this agreement, but you need to delete this sentence and that sentence."
Mica: I think the other thing that prevents a lot of creatives from doing things like filing an LLC is that it's daunting to do it alone, and I would say you don't have to do it alone.
There are organizations out there that will hold your hand and help you. Here in Texas, it's TALA, Texas Accountants and Lawyers for the Arts, and we have gone to a few of their workshops where they try to break down, like, the copyright. Like, they explain it, and they do provide services where they'll help you file an LLC if that'll help.
Volunteer Lawyers for the Arts. So there's things, and now there's you. People know you, so they can reach out to you.
Rob: [00:32:00] Yeah, and there are third-party for-profit things out there too that you can hire, and they'll go file and form an entity for you. And I mean, I don't really trust any of them, but that's just because I know how it all works, and I know it's super simple to do, and there's no reason to spend money on someone to do that.
And listen, you could have questions, and I find that depending on which state you're forming in, all the ones that I've ever done, there's helpful information on the state's website. So it's usually under the Secretary of State for whatever state you're in, and there's a ton of information on their websites.
And it's not just you go fill out a form. Like, there's an information sheet, and it will usually tell you, "This is what they're actually asking for. This is what you need." And it's so straightforward. It really does not take more than five minutes to do. And in my mind, there's no reason to go spend money on someone.
You can do that yourself
Mica: Oh, yeah, for sure. Or I got lucky and I married someone who did it for me.
Rob: Exactly. [00:33:00] Marry smart, that's the lesson here.
Mica: Marry smart. Marry smart. You mentioned earlier about how you can tell the client, "Hey, I don't like this clause. We need to either change it or take it out if we're gonna work together."
What's a clause that consistently gets overlooked or ignored but is so, so important that shouldn't be overlooked or ignored?
Rob: I mean, there's a couple of things that I could say in response to that. So if we're talking just about food photography, I mean, the biggest issue of course is copyright ownership and licensing.
So that's something that I think as photographers we all need to hone in on and make sure the contract says what we want it to say with respect to ownership. A general proposition, my position is I'm the photographer, I own the photos no matter what, and the contract is that I'm licensing them to [00:34:00] you.
If the contract says something different, then we need to talk, negotiate, mark it up, whatever. There are exceptions to that. There are photographers who do work, for example, for food bloggers. So it makes sense that the food blogger will want to retain and have ownership of all the images, because what if that food blogger eventually wants to sell their site?
They're gonna wanna represent to the buyer that they own all the images and all the copyright associated with it. So that's an exception to consider. So it's not one size fits all, but I think generally that's the framework. In terms of clauses that I think get overlooked, it's always the, quote, "boilerplate stuff."
People just, they hear the word boilerplate and they're like, "Oh, that's fine, it's boilerplate. I don't have to look at that." That's the stupidest thing ever. No. If it's in the contract, I don't care what you call it. Call it a peanut butter and jelly sandwich. If it's in the contract, there are words [00:35:00] there, you need to read them, you need to understand them.
If you don't like them, you need to negotiate them out or negotiate different language. That is plain and simple. You can't ... There isn't a provision that's more important than another. It all works together. And the, quote, "boilerplate stuff," it's terms that you usually find at the end of a contract. It's fairly standard to just throw all this stuff at the end.
And by this stuff I mean, like, the choice of law. That's a legal term for what law will apply in the event that there is a dispute between the parties in the agreement. So oftentimes we'll see a sentence that says, "In the event of a dispute under this agreement, the laws of the state of California will apply."
So you need to read that and look at that and say, "Well, wait a minute. I live in New York. I don't know California law." You're not a lawyer, so you probably don't know New York law either, but that just [00:36:00] complicates things for you. And then the next sentence, sometimes, not always, will be a jurisdictional sentence which says, "In the event of a dispute, any litigation will happen in the state of California and in a specific county in California."
Well, okay, wait a minute. I live in New York. I don't wanna go to California if we end up in some sort of litigation over something. Now you have to hire a lawyer out there. You're gonna have to travel out there for depositions, for trial and whatnot, all because you signed this agreement. So you need to look at that, and if you're working with a big brand that's headquartered in California, they're probably gonna have that language in there.
So you need to go back to them and say, "Hey, wait a minute. I'm a one-person show here. I'm not agreeing to go to California if we have a litigation." And you can push to say, "I want New York..." If, say, you live in New York, "I want New York law to apply, and I want any litigation to be resolved in New York." [00:37:00] I would try for that.
If they push back and say, "Well, okay, we can't agree to New York law applying, but we'll remove the sentence that anything has to be brought in California." So in that case, the contract would say that California law applies, but it's silent as to where a litigation could be brought. And this way, say they screw you and they don't pay your bills, you can sue them in the state of New York.
So that gives you that leverage. California law would apply. Now, there are nuances to all of that. I wouldn't say it's really worth looking at the differences between California law and New York law, but there are differences among all 50 states. So that's something to be aware of, or if you're working with a brand that is outside the United States, their laws are going to be different than ours.
Mica: Oof. That sounds... I mean, I've never worked with a brand outside of the US, 'cause it terrifies me.
Rob: Once you get the [00:38:00] lay of the land of a contract, you can go through all this. They're saying they want the law of their country to apply. You'll know what the big issues are. You can go on Google and see what the law is.
For example, what's the statute of limitations on a breach of contract claim? Nine times out of 10, because you have a contract, that's going to be whatever claim could arise would be a breach of contract. That's a very good chance that's what would arise. Other things could happen outside of the contract, sure, but the biggest potential claim is a breach of contract claim.
So find out what the statute of limitations is on a breach of contract claim. In California, it's four years. In New York, it's six years.
Mica: I don't know what it is in Texas
Rob: Yeah. So when you sign the agreement, it may be advantageous to think that stuff through to try to negotiate for a different, a state where you live in, if it has, like, a longer statute of limitations.
But that's a sword and a shield, because what if they have a claim against you and now they have [00:39:00] a full six years to bring it from when it happened because New York law applies? So I don't think it's worth gaming it and doing the research to try to figure out what state is more advantageous for you.
The point in doing it is that, because if you, if there is no clear statement in the contract as to which jurisdiction applies in interpreting the contract, you end up in a whole other sideshow litigation to f- have a court determine what jurisdiction's law will apply. So if the contract is silent and doesn't say what state's law will apply, the company's in California, you're in New York, there's a legal conundrum which state's law applies.
And it could be a distinction without a difference if the laws are similar, but if they are different, like there's an iss- say, say the client is in California, you're in New York, they sue you five years after the claim arose. Well, under [00:40:00] California law, you'd be able to file a motion to dismiss and say, "Hey, you didn't bring this in time, so judge, dismiss this case," and the judge likely would.
But if it's under New York law, it's timely 'cause it's still within the six years. So again, I'm not saying that you should go research all this beforehand and game which state's law, but if you know all this going into it, you know which state's law will apply, you avoid a real big sideshow because it's actually a big analysis that the court would have to undergo, and there'd be a lot of legal research involved, a lot of lawyer time to go and figure out to make the argument as to which state's law should apply.
And you can just avoid that whole sideshow by having one sentence in your agreement. But that's always tucked in in the, quote, "boilerplate stuff," and people don't pay attention to it, and it's of paramount importance. And that's why I'm saying every word of every contract is important, and there's nothing that you should just be glossing over.[00:41:00]
And if you don't understand it, don't go sign it. Ask what it means. There's no shame. I mean, you can go ask around and try to Google the definition, but go back to them and whoever you're dealing with at the brand, 9 times out of 10 you're not talking to a lawyer, you're talking to a marketing person or someone in the marketing department usually.
They probably don't even know because they're just sending what their legal department said. And when you force them to answer the question, "Hey, I'm not understanding this clause," confusion is always the best thing. "I'm really confused. I don't understand this. Can you explain it to me?" They might be able to, so okay, that's helpful.
But I find more often than not, they have no clue. They have to go back to their legal department, and then when they do that, they can explain to your legal department, "Oh, wait, that's not really what's going on here. That's not this business relationship." That's why they're ask- that's why the photographer is saying, "Oh, wait a minute, this doesn't make sense."
And they can sometimes [00:42:00] just get it removed without you having to do anything further. So, and I think it's a great way business-wise to... Don't be scared of the contract. Use it. It's a good way to leverage your relationship with whoever you're dealing with at the brand.
Mica: Don't be scared of the contract.
That's gonna be my motto.
Rob: The contract can be your friend if you understand it.
Mica: If there's certain legal terms just look scarier than it actually is, but when it's broken down into simpler terms, you go, "Oh, okay. I get that. That makes sense. That makes a lot of sense, actually." I mean, you mentioning about where litigation's gonna take place, I've never even thought about that.
Like, if, 'cause if I'm based in Texas and I sign a contract for litigation in California, I could see that adding up really quickly. Plane tickets, hotel costs, food, travel. Do I even have that kind of fund? And that's not on top of paying [00:43:00] for the lawyer, and whatever court fees that are associated with it.
It's like I had never even once thought about that or considered that. I mean, now I will. I'll be checking to make sure.
Rob: It's an important clause, and it's buried in that boilerplate stuff at the end.
Mica: Yes. So I wanna swing it to this topic. I noticed on your blog, Cinnamon Schtick... I love that name. That's such a cute name.
And I noticed that it is certified as LGBT-owned. Can you explain how that came about a- and what it does for you?
Rob: Sure. So I mean, this is totally separate and apart from the legal world, of course. So I'm gay. My company is therefore 100% owned gay, 'cause I'm the only owner. So there are certifying bodies out there to certify minority-owned businesses, whether it's LGBT-owned, women-owned, [00:44:00] Black-owned, veteran-owned, disabled-owned, Asian-owned.
There are bodies out there to certify your entity, and why that's important is because there is this world of supplier diversity out there. And I mean, I don't wanna get political here, but the current administration is trying to rip that up, but it still exists, and it's still very much out there, and it's still very powerful.
And the whole point of it is that historically, we're going back 60 years- People woke up and said, "Okay, companies are hiring smaller companies to outsource and do other work for them, but most of those companies are, like, white male-owned companies. So how do we push to engage companies that are owned by other people?"
And 'cause I think there was an appreciation that they're bringing in other communities and other perspectives and other creative talent based on those people's backgrounds, not [00:45:00] just the straight white man. So I believe it was IBM that really started it, I think it was maybe even the '50s that they started it, and they pushed a supplier diversity program.
And so most big companies have these supplier diversity programs where they actually look at, and they have a goal, they have a percentage goal of their outsourcing business. So whatever they farm out, they want to attain that goal of 20% of whatever they hire someone outside of their own company to do should be a diverse-owned business.
It's not, I think as this administration would say, that you're getting hired just because you're Black, you're LGBT, you're a woman, whatever it is. That's not what goes on in reality. No one's getting work just because of those things. People are getting work because they get their foot in the door because of those things, but then they prove themselves, and they get hired [00:46:00] because of the quality of their work.
And I can tell you that's happened for me both with Cinnamon Stick, my blog, and with my law firm. So I'll start with the food photography stuff. I mean, six months into doing my blog, I had a brand reach out, and I did work for them, and then they found out that my business was certified as LGBT-owned.
That got them even more interested because they were already happy working with me. They were happy with my work, but they kept giving me more work because they had a supplier diversity program, and this kinda checked that box for them. I mean, if they found someone else to do just as good if not better work, they would certainly go hire that person.
But I was doing work that they were happy with and was good. So it's a great thing. From my law firm perspective, my law firm is certified. Both my partner in my law firm and I are gay, so we have had our firm certified as LGBT-owned since we started in [00:47:00] 2013. We haven't gotten work because of it, but we've gotten our foot in the door because of it, and then once we got our foot in the door and had interviews, we've gotten tremendous business from it. So, I mean, one example is that we had an Ivy League university reach out to us because we do a lot of construction law, drafting and negotiating, uh, agreements for large scale construction, and this university was looking to hire another law firm.
They'd been working with a huge national law firm, and they just decided, "You know what? We need to find someone who can... doesn't cost as much, and we wanna see if we can get a diverse-owned law firm." And so it came down to us, a woman-owned law firm, and that same large law firm that they had been working with.
And we got it because we could talk the talk and walk the walk. We know construction law. We were able to go in and have very intelligent conversations about the legal issues, how to resolve them, and all that good stuff, and that's how we got [00:48:00] hired. But we were able to get that interview because we were certified.
So it's really important, and I know the vast majority of food photographers in particular are women. You are a woman-owned business. And I don't... I've been, like, taking a back seat wondering for the last few years, like, "Why are none of you getting certified?" I think it's not a big deal to do, and it's something to tout on your website, and it's a way to potentially get more business.
Mica: What was the certification process like for you?
Rob: The certification process, I think amongst all of these certifying entities, it's very similar. You have to show some financials. You have to show you're a real, viable business. You have to prove who you are. I mean, for me, being LGBT, people just go down, like, this sort of dirty hole, "Oh, what'd you have to do to prove that?"
You just get affirmations from people saying, "Yes, this person is part of the LGBT community. I know them," and stuff like that. It's very simple to [00:49:00] do. There are a number of certifying bodies I mentioned. The one that certifies the LGBT community-owned businesses is the National LGBT Chamber of Commerce.
There's one for women. The acronym is WBENC. I think it's Women's Business Enterprise... I forget what it stands for, but if you just Google WBENC, you'll find it. But if you are a minority of any sorts, there are a bunch of different ones out there. So go look it up. Go get yourself certified. It's a great way to not just get business, but to maintain business, because once you're certified, if you're doing work for a brand and then you're, you realize, oh, they have a supplier diversity program, mention it to them and say, "Hey, by the way, I noticed that you guys have a supplier diversity program.
I don't think I ever mentioned to you, I've been doing this work for you for so many years." I'm actually, my business is certified. That spend by your company should be allocated and should [00:50:00] be measured. You should include that spend for me because I'm certified, and that helps the company out.
Sometimes the marketing person you're dealing with doesn't even know about the supplier diversity program because sometimes companies are just so big and there's no internal communication, so you end up educating them on it. And I've had that happen, and it's, like, amazing to educate them about the own inner workings of their company and that they have this great program.
So it's definitely something I don't understand why food photographers in particular haven't really jumped on that. I think it could be very beneficial if you leverage it.
Mica: I mean, I'll be jumping on it now.
Rob: Yeah.
Mica: I'll be jumping on it now for sure. If a company reaches out to me because they are specifically looking for a Black female food photographer, I will take every opportunities. When I was in high school my senior year, the guidance counselor calls all the seniors in and tells them, "What are your plans after high school? And here are some scholarships, [00:51:00] opportunities that you might wanna consider." And I remember going to my guidance counselor's office, and she put this giant stack of scholarship applications, and she goes, "So that's for African American."
I was like, "Cool," and I grabbed it and I was about to leave. She goes, "Ah, ah, come back." She handed me another stack 'cause I'm also Mex- Mexican, and she goes, "And these are for the Mexican Americans." And I was like, "What?" And I was like, "I can apply to..." And she goes, "Well, you are African American. You are Mexican American."
And then she goes, "And I have another one, and these are for all women scholarship applications." And I was able to go to college because of some of these scholarship applications that I would not have known about otherwise.
Rob: That's just it. But what you said before, if some brand is looking for a Black woman-owned photographer, you're like, "Hey, I'm here." That's the whole point though, because they're looking for someone who is [00:52:00] qualified, who does great work, but has that particular background for a reason, and they're not gonna hire you just because of that.
They looked at your portfolio, and that's why they're gonna hire you. I mean, I've looked at your stuff. Your stuff is gorgeous. I mean, anyone should be hiring you to begin with, regardless of whatever your background is. I mean, your photographs are stunning.
Mica: Thank you.
But it's, I consider it to be like a filter. There's so many talented photographers out there, and sometimes you have to cipher them out to see which ones fit your needs.
Rob: And I agree with you 100%, but that's just the point. Especially if it's a new client for you, what a great opportunity to get your foot in the door, and there's so much potential for future work there.
Mica: I'm definitely gonna seek out getting certified for women-owned, minority-owned, all these things.
Rob: And the other nice thing about it is you can be as active or inactive as you want once you become part [00:53:00] of that community and you get certified.
They, each of them have, like, local stuff going on, but they also have national annual conferences, and that can actually be smart to attend, because there are brand representatives there, and you can look and see who are the corporate partners for each of these organizations, and you can see who will be at these annual conferences.
And at these conferences, I used to go to them all the time, they usually have a whole, like, banquet room filled with tables, booths, whatever, for each of the corporate partners. And you can literally walk around to each and every one, introduce yourself, "This is what I do," blah, blah, blah. You don't have to say that you're certified.
They know you're certified. That's why you're in the room. But you can really market yourself to them and say, "Hey, this is what I do." And take a look. I mean, if the corporate partners are all just hotel chains, then maybe that's not a smart fit for you. But if there are food brands there, it [00:54:00] could be worthwhile investment to go to these conferences and get yourself out there.
Mica: What's the first step someone should take if they're interested in getting certified? I mean, how many... I know there's the, you mentioned the LGBTQ plus certification. There's the women, the WE.
Rob: There's minority-owned. It's, the acronym is NMSDC. I forget. It's like National... Just, I'm horrible. I can never remember the full name of any of these places.
But if you Google it, you'll find it. There's one for disabled people. There's one for veteran-owned companies. I remember, it's Disability:IN. That's an easy one to remember. But just go to their websites. They all are very similar. I know that the LGBT one was mirrored off of the women-owned one, and they all talk to each other.
They all work together. They all require the same sorts of things when you fill out the certification application. So it's all right on their websites. It's very user-friendly. [00:55:00] It's very simple to do It's definitely worth looking at, I think. I mean, it worked for me when I had just started. I mean, it's a great thing to have 'cause companies are looking for it.
Notwithstanding the current climate, companies are still very active in their supplier diversity program.
Mica: I wanna finish this interview about diving a little more into your course. What's the single most important takeaway that you wanted students to have after completing it?
Rob: My goal in offering the course is really to provide the confidence that a food photographer needs in order to negotiate a deal. I mean, that's what it all comes down to, and you can't do that without knowing what it all means. And so it's really just about getting educated on what a contract is, why you have it, and what literally every single word in it means.
Once you know all of [00:56:00] that, it just becomes so much easier to advocate for yourself and negotiate and get terms that maybe they aren't the most ideal terms for you, but they're at least something you can live with, and they aren't as bad as what was initially offered. And that's business. That's how deals get done.
And the more you understand, the better you can do all of that. So that's really the goal behind the course. And I mean, I'm very proud and happy to say that literally everyone who's taken it, all the feedback has been that they've achieved that, and they're able to go and look at a contract, and even if it's outside of their business, and like I mentioned, a home improvement contract, like, people are able to take this education and use it to their advantage in all walks of life.
And that's what I was looking to achieve, and it sounds like I've done it. As I get any other feedback, I certainly will make tweaks and stuff. And one thing that I was thinking of as we were talking, [00:57:00] actually, is that I have a number of bonus sections in the course. So one is about creating an entity I gave that whole spiel here, but there's another bonus section on trademarks and whether or not you should apply to register your brand name as a trademark, and I talk through all of the ins and outs of that.
I actually need to update that section now because the United States Patent and Trademark Office, the USPTO, has updated their website over the last, I don't know, 10 months or something. So in the bonus section there, I shared my screen and recorded it so you could see what I was doing and how to search and all that, but now it's totally different.
So that's something I have to update. I think it's an important bonus section for people to understand, wait a minute, I have... Me, I have this name Cinnamon Sticks. Should I register that as a trademark? And if I'm going to, how do I do it? What are the benefits of that? How does that all work? So I answer all those questions.
Mica: What part [00:58:00] of the course are you most proud of?
Rob: I mean, I'm proud of the whole thing. I mean, it was a, really it was a lot of work to put it together, but I created a form food photography contract, so you walk away with that form. And so you will be able to download that as a Word document. You'll be able to take that and edit it and tweak it, 'cause different things are gonna happen.
Brands are gonna want different things, and you're gonna wanna include different... If you're doing work for a food blogger, that's a different agreement. So I have a form for that also. So you get all this stuff, and the beauty of it is that you will have the knowledge and the power to tweak the language.
It's not just, "Oh wait, I don't know what to do." You will know what to do, 'cause I explain it all to you. I explain what all these words mean, and this is really the most that would likely be in there. Listen, I'm not a fortune teller. I don't know what every brand's requirements or [00:59:00] wants are when they send a contract.
There could be something else out there. But generally speaking, this really covers the lay of the land. I'm very happy that everyone who's taken it has really found it beneficial. I mean, that's the beauty in it for me, and that what makes me feel like, okay, this is... I'm glad I put this together because it's really helping people, and it's protecting people.
It's protecting these, every, all these food photographers who are doing work out as real business people, it, they're protected. So I think that's what I'm most proud of, is that I was able to educate people on how to negotiate better, understand all this, and protect themselves
Mica: When you mentioned your course, I was like, "I need that in my life now."
When I work with food stylists and prop stylists, I'm shocked that they don't have a contract with me or with anyone.
And I'm like, "So what, you're just gonna do a spit handshake?" I mean, I know we have an established [01:00:00] relationship, and that's fine. I mean, I know one of the prop stylists that I work with, they... I thought that they were loosely creating one. Should they have a contract? And if you had 10 minutes to convince them, what would you show them first, prop stylists and food stylists?
Rob: Absolutely. I said it before. Everyone in any sort of business should have a contract, period.
There's no exception. There absolutely should be a contract. The whole point of a contract is that the goal is to avoid a dispute. It outlines the nature of your relationship, how everything's going to work. So I mean, for us, ownership of the images, that's a big issue. Get that figured out now. What are the license fees?
How long is the license for? You can't operate on a wink and a handshake. And even for the s- the stylists and the prop people you're working with, I mean, what are the terms of payment? When are they supposed to get paid? How is that going to work? That all goes in the contract, everything about your relationship.
[01:01:00] It is a road path for the nature of your relationship, and if, heaven forbid, something happens and there's a dispute, this is how it gets resolved. That's all in the contract. The whole point is to avoid having to spend time and energy trying to figure out things later, and to say, "Oh, we didn't really think about that."
Well, no, you think about that before you engage in the work. That's the whole point of the contract. Everyone should have one, period. There's no discussion to be had about it. And frankly, for me, if I'm gonna work with someone and they don't want a contract, I'm happy to draft it. I can do that. If they don't want one, I won't work with them.
I just won't. It's not worth it to me. It's, it creates risk and liability for me, and I'm not interested in that. So if... That's me. I do not operate on a wink and a handshake. Everyone should have a contract, period.
Mica: Every time I've operated with a wink and a handshake, it's backfired, so
Rob: Exactly
Mica: I mean, I've worked with the same [01:02:00] assistant for, for a few months now, but we've done several shoots.
Rob: Yeah. No, and that's a great point, because you don't necessarily need to be sending an agreement for every different project.
You can have what's called a master agreement, where you already have all the same parameters for every agreement will apply, and under that agreement, you can just have him sign a, like something that goes with it, like a statement of work, and that outlines the specifics for that particular project, the price that he'll get paid, when he gets paid, and what he'll be doing.
It will differ project to project, but y- that's what each statement of work, or SOW, is. It's just the specifics for that certain engagement. But it falls under the umbrella of the master agreement, where you have all the boilerplate language, you have ownership of everything. All those big contractual terms are already done and negotiated and agreed to, so doing a statement of work is a no-brainer.
It's just plugging in, "Oh, you're gonna work on [01:03:00] this date from this time to that time for this amount of money. You're gonna style things for 10 different images." And that's it. It can be that straightforward. I talk about that in the course, too, and how that, to set that all up. It's a, that's how businesses do business.
They have master agreements, especially when you're working with the same people for similar things. So if they're gonna hire you to be a food photographer for God knows how long, hopefully eternity, and they'll keep coming back to you, they'll give you a master agreement so that you negotiate all this big stuff that's gonna apply in every instance up front.
And then each statement of work will have whatever the pricing is. Maybe one will have you doing video and images, one will just be images, one will just be video. But the, all those like business points are just confined to that one project in the statement of work.
Mica: Where can people who are interested and want to get your course, where can they find it?
Rob: So full [01:04:00] transparency, I pulled the plug on the course earlier this year just because I was just inundated. I had a lot of stuff going on in my personal life and my law firm life was really busy, so I just could not dedicate the time to marketing it, so I just pulled the plug on it.
It was on Teachable. It may or may not be there by the time this episode of your podcast drops. I'm trying to figure that out. It will be there again, and it will be under the same URL, which is contractlegalease.com. That's the separate LLC I created for this course. I have a different LLC for my blog.
That's Cinnamon Stick LLC. Remember that whole thing about the entities? That's why. Separate entity. I think when you reached out to me to be a guest on here, it's re-inspired me to say, "Okay." Everyone who's taken the course has gained value from it. They all appreciated it, and they were upset when I had to turn the off switch on.
So I decided I'm gonna revamp [01:05:00] it and get it back out there. So I will do that. It w- should certainly be up by the time this episode drops, and I'll follow up with you so you can drop it in the show notes to where people can find it.
Mica: Keeping everything separate entities, keeping everything separate.
Rob: I'm very easily locatable.
My blog, Cinnamon Stick, I have a separate email address, rob@cinnamonstick.com. You can also contact me on Instagram or Facebook under that handle, and the same is true for my contract course, Contract Legalease. I have an Instagram handle for that and a Facebook account, and also the email address is rob@contractlegalease.
So I'm very reachable. I'm happy to answer any questions anyone has. And once I get the course back out there, if anyone has questions about that, by all means feel free to reach out.
Mica: Thank you so, so much for being on the show.
Rob: Oh, thanks so much for having me. It's been a blast, and we'll definitely stay in touch.
Mica: This episode is written and produced by me, your host, [01:06:00] Mica McCook. Like this episode? Give us a five-star review on Apple Podcast and subscribe to The Savory Shot wherever you get your podcast.
Or follow me, your host, Mica McCook, on Instagram at mica.mccook, or you can follow the podcast on Instagram at thesavoryshotpodcast. If you have any questions, comments, or would like to be featured on the show, email us at podcast@thesavoryshot.com.