“Vagueness is the kingdom of the devil and it is as such on purpose.” … Lamine Pearlheart

There is a Legal concept “Void for Vagueness” which means in plain English that if an average citizen can’t understand what is written, it’s unenforceable.

Being vague or noncommittal is a very useful social skill. “I see…” or “I hear you…” (meaning
only I acknowledge you exist). “That’s interesting” or “Definitely a possibility” (meaning I’ll
consider it but don’t bet the farm on it). And our favorite one, “Bless your heart” can mean two
very different things. But while these social niceties can get you out of sticky situations, being
vague in business can be deadly and costly. We can write more than a blog piece or twelve on
the dangers of being vague in business dealing, here are just two, real life examples. One on
invoices and one on your address.

An old friend of Jack’s, and actually a friendly competitor, once asked Jack about help with an
invoice issue he had with a client. The basic issue was a client using a photo past the term he
thought he was licensing the image for. Let’s say to simplify he said the term was one year and
the client was using it what he believed was 10 months after the one year use expired, meaning the photographer believed he was entitled to (at least) an additional usage fee. The issue also
involved the usage media. Jack looked at the invoice and the first issue was that the term was
listed at “One Year”. Great, better than no time listed, but still too vague. As Jack teaches his
graduate students, the question is when specifically does the year of usage begin and end? Is it the invoice date, which is what the photographer “assumed” (aha!) or was it from the first
insertion or the first usage, which is what the client will claim. And they have a case starting the year starts from first use.

That’s why the two of us stress to state the actual start and end date. “Period of use: One Year from July 1, 2020 to June 30, 2021”. Note we didn’t say from July 1 to July 1 of the next year, that’s technically one year and one day. We wouldn’t worry about giving a client an extra day of use if you want to use what is known legally as a calendar date, July 1 to July 1, but we prefer the more specific 365-day year (including a leap day if needed). If the client does not want or can’t be pinned down to a specific first use date, an easy resolution of the problem is to put in “date of first use shall be deemed to be the actual date of publication or July 30, 2020, whether publication has occurred by July 30, 2020 or not”.

His second issue was just being vague on usage terminology. When asked why, this
photographer said he thought being vague would work to his advantage. Nope, sorry, the
opposite is true. Being vague, bless your heart, hurts you legally. It gives lawyers, juries and
judges the ability to interpret the document as they deem fit – you may not like or agree with
their interpretation. A good contract or invoice is understandable, clear and unambiguous to
anyone on its face.

Which brings us to the second issue, a very important and often overlooked issue, USE your address on all of your paperwork and e mails. A bit of background first. Many years ago, it was critical for an advertising photographer to have a physical studio and live in a major Metropolitan area. New York, Los Angeles, Dallas, Chicago. You needed to be where the advertising agencies were and the perception was without a studio, you weren’t top tier. That changed with time and with how the advertising world has changed. Without going into all the details and steps of how this happened, let’s just say with the Internet, where you are located doesn’t really matter…….or does it? For sure, you don’t need your own physical studio space, that’s not expected as it was in the old days. But the impression of where you are is still important, both in the minds of your client, and more important (and this is the point that most artists miss) it’s very important legally.

Why photographers, models and illustrators have been and still are moving away from many of
the major cities which were formerly the hubs of photography will be our next blog piece. But
for now, we want to talk about why, even if you have moved to West Anywhere, USA or even
East Anywhere, beyond the borders of America, it pays to have an address in a major city. You
don’t need a studio or office or apartment, just an address. It can be a mail drop, like some
businesses have, but not a post office box, a real address. You need a presence. “Why”? you
ask. Great question with several answers. One of the main reasons has to do with a subject that makes first year law students’ head spin and that’s the choice of venue for a lawsuit. Not going into the weeds regarding the rules, the simple explanation is you can’t just pick a court that’s convenient or one that might be more sympathetic to your case. So you really want a copyright infringement case to be argued in front of a judge that has heard such cases before and has gotten an education regarding copyright and business issues specific to our industry.

A federal judge in Des Moines, Iowa might be a great judge, but odds are he’s rarely or has never presided over a copyright infringement trial involving photography. You would have your
lawyer trying to educate the court there on issues in the commercial photography world, which
would be very different than the usual business cases he hears. We know from real experiences that this will likely not work in your favor.

A judge in New York or in Los Angeles for example is very likely to have heard many such cases and may be familiar with the lawyers and even the expert witnesses involved in the case. They understand the issues and the subtleties and nuances of the cases. Like a photographer getting thirty thousand for a single photo in an assignment in Des Moines might make a judge tilt his head a bit, but in NY, not a flicker. It’s like using a surgeon. And this isn’t a small town vs. big city thing, it’s just about the amount of experience of the courts in a given location. If there was a surgeon in Des Moines who specialized in a certain operation and performed it thousands of times, that’s the guy I’d want operating on me over someone in a place like NY that has done that operation only a dozen times. The NY surgeon is probably very capable, but I’d rather put my fate in the hands of the guy with more experience. Same with courts. But with rare exceptions, you can’t shop around for the location of your Federal court. There are rules that determine “venue” or “location of courthouse” where the case must be heard.

Courts in TX, OK and LA hear cases concerning oil and gas leases all of the time. Judges in Las Vegas are familiar with the casino/resort industry. Judges in Los Angeles are likely to be
familiar with the TV/Movie industry and judges a few hundred miles north in San Jose/SF “know tech”. A Judge in Kansas is likely to know more about farming and agribusiness than an equally smart judge in the Bronx who thinks, “corn is corn” and it comes out of a can.

Which brings us back to having an address. Without a presence in a city you may not have a
reason to file suit in a court that makes sense for you. If you show no address and you sue
someone who is based in West Pip, Somewhere, you aren’t filing in NY or LA (unless there are
other reasons giving you the right to sue elsewhere, unlikely). Suffice to say, an address in a
major city is a good thing to have and being vague with no address because you think it’s
better, is not really helpful. From a PR standpoint it can only help you procure business.

Now we have seen photographers being vague in the sense that they list several cities or at
least list agents in several cities. The reason and the impression is to show you they can and
actually do work in either area, like say NYC and LA and Phoenix. So you might live in Phoenix, but you do work on both coasts.

Finally (for now) an excellent reason to post a “brick and mortar” address is simply the
perception clients get of who you are. While this is less important than it was in the past (when
it could be critical) it’s still both a perceptual bias and a security bias from clients. Security in
that they feel more secure with a “big city” photographer, like “Joe Smith with agents in NY and
LA” rather than “Jerry Smyth in Oshkosh, Wisconsin”, EVEN if Jerry in Oshkosh was a better
photographer. Jack once gave a lecture to professional photographers in Philadelphia (a great
town) and thought it would be good to show them the BTS and set up shots for an assignment
he did photographing the Liberty Bell for the City of Philadelphia. Boy, did Jack read the room
poorly! They were very upset that the city got a “NY” photographer for this Philly landmark
when there were very talented and capable photographers in Philly. And they were absolutely
correct. But it’s hard to fight that client’s perception that a NYC photographer was “better”
than a Philly native. As the Sir John Monash once said “It’s hard to be a hero in your own country”.

Business paperwork in any and all forms should be simple and straightforward. It’s sometimes
required in some cities and states to get a business license, which is required for commercial
photographers in those places. If it has your name on it, it should have a phone number, hard address, and email address on it, always. List a “hard address” and put your phone number on every one of your e mails, invoices, estimates and correspondence. If it has your name on it, it should have a phone number, hard address, and email address on it as well. Juries especially equate omitting such basic information from standard business documents as being “suspicious” at best.

There are many well-known photographers, illustrators and artists who “really” live in far off
places in South East Asia or South America. Only their families, lawyers and accountants really know their true residence. There are many well-known, established photographers who live all over the United States and are legal, tax paying residents of states with no or low personal income taxes, cheap real estate and good public schools. They may work in NYC, LA, Chicago but don’t live anywhere near those cities. If they get a job in one of those cities, they catch a plane. But an address in a major city is still not a bad idea. Those of you with Agents in big cities pretty much have most of the problem solved already. You simply state their address and phone number for your contact info.

There is simply no law which requires a business owner from residing in the same state as their
business is located or incorporated in. Tens of thousands of Jerseyites flood Manhattan every
day to work at their New York business.

Well that took a lot of words, but we think it’s worthwhile to understand why being vague in paperwork or in addresses can work against you. In writing this, the two of us also discussed a lot of why artists are moving to other areas outside the traditional big cities and we think it’s worth a blog piece all by itself. So that should be up next in the next few days, followed up with another blog piece regarding some trademark issues brought up in our comment section.