Contracts For Your Photography Business

The following is an excerpt from Carolyn E. Wright’s book, The Photographer’s Legal Guide.

What is a Contract? Most hobbyists and all professional photographers need to use contracts to protect themselves and their business. A contract is a legally enforceable agreement entered into by the parties: you and a client, customer, or anyone else who wants to make an agreement with you. Each of the parties to the contract consents to do (or not do) something in exchange for something else. A contract requires a meeting of the minds or “mutual assent” It comes about by an offer and an acceptance. Every contract must have”consideration,” which means that all parties agree to give up or to do something. If that “something” is not clear, disagreements arise. So be as specific as you can about what it is you are agreeing to do to save yourself from later problems.

You cannot enter a contract that requires a party to do something that is illegal, tortuous, or contrary to public policy. It would be void as a matter of law.

Every transaction, whether it’s with a vendor or a client, should be based on a contract. While a contract may be created orally, it benefits all parties to have a written contract so that the obligations and benefits are clear to all. While the parties to the contract may subsequently disagree about what that contract means, putting it in writing should make your agreement clearer to all parties.

The contract doesn’t have to be a formal document drafted by a lawyer. While a lawyer is trained to help you anticipate and thus prevent problems, contracts such as the one that was written on a restaurant napkin between non-lawyers have been enforced.

Contracts in Electronic Form

A contract may be in any memorandum form, including electronic mail. It is “signed” by any mark, written, stamped or engraved, which demonstrates the intent to agree to the contract. With the prevalence of email and web-based solicitations, this can be a concern for photographers.

For example, an airline company recently sponsored a contest. The grand prize was a year’s worth of flying, and most anyone could use that. You entered by submitting a photo, an essay or a video. On the contest’s website, you were directed to the page titled, “Legal Terms and Conditions.” You had to scan down to read the entire text. While most folks might “accept” the terms without reading them, the fine print on this page has some information that was of the utmost importance that a photographer should read.

The terms stated in part: “For good and valuable consideration . . . I hereby assign and transfer in perpetuity to [the airline company] . . . all world-wide rights, title, and interest in . . . to all: . . . photographs . . . copyrights (including the right to register the copyright and any renewals or revisions thereof) . . . derivative works, and any other material and/or intellectual property embodied in the material created and submitted by me [for the contest].” If you had agreed to this, you would have just transferred (rather than licensed) your copyright to the airlines, regardless of whether you won a prize. Once you had transferred your copyright, it would have given the airlines all rights to the photograph (as if the airlines had taken it).

Similar events are occurring elsewhere. The license for an instant messaging product gives the company “all right, title and interest in any compilation, collective work or other derivative work created by [the company] using or incorporating [the] . . . content. You grant [the company] . . . the irrevocable, perpetual worldwide rights to reproduce, display . . . this content . . . .”

This gives the company a license to use any photo transmitted while using its instant messenger service. In the company’s defense, such a license may be necessary to protect the company from copyright infringement suits concerning images transmitted by the service. On the contrary, a transfer of copyright is not necessary for an airline company to run its contest.

Since you can “sign” a document by responding electronically, be very careful when answering emails or when responding to website solicitations. Always read the fine print to protect your copyrights.

What To Include In A Contract

In some cases, the person who signs the contract is not the person you will be photographing. You are responsible only to the client and the client is the only one responsible to pay you. Understanding this principle can save you from having “too many bosses,” each of who wishes to direct your photography. When drafting an agreement, make sure to establish the identity of your client by having the client put her name, address, email address, phone and other contact information on the agreement.

The “four corners of a contract” axiom advises that everything that matters to you should be included in the written document. For example, if it is important that you get paid one month before the wedding, put that in the agreement. A court when enforcing the contract will not consider negotiations or agreements that are not specifically included in the contract. Don’t modify an agreement anywhere other than on the agreement itself. If you think of other items that should be part of the deal after the contract is written, modify the contract.

Include in your agreement what amount and when the client will be paying, what the client gets for that payment, and when they will get it. Determine every crucial step needed to accomplish the job and specifically identify who will do what and when and where they will do it. The more precise you are, the less likely it is that problems will arise later and the more likely it is that both parties will be satisfied.

Another item to include in an agreement is a disclaimer. A disclaimer keeps you from being obligated when you or someone else screws up, as long as the screw up was despite your best efforts. For example, if the printer loses the negatives, if your office burns down with the only copy of the photo files, or if you have a horrible accident before you get to the event, the disclaimer will protect you from having to pay damages to the client. Here’s a sample disclaimer:

The “Smith Studio” [hereinafter the “Studio”] takes the utmost care with respect to the exposure, development, and delivery of photographs. In the event the Studio fails to comply with the terms of this contract due to any event or act outside the control of the Studio, the Studio’s liability is limited to the refund of fees paid.

You also may want to add a provision to your contracts that allows you to substitute another photographer in case of scheduling conflicts or illness.

If you have lots of items and restrictions in your contracts, you may get more protection, but you might very well scare away some of your customers. Use common sense and try to come up with a contract that is both balanced and fair.

If you want to make a separate document part of the agreement, state specifically in the contract that the document is part of the contract and physically attach it to the contract. For example, you can attach a list of photos to be taken as part of the assignment to the contract. In the contract, state “the photos to be taken by the photographer are listed in Attachment A.” Make sure the list has the words “Attachment A” noted on it.

You may not, of course, unilaterally amend or make changes to a contract without the other party’s consent, but it’s easy to modify a contract if the parties agree. Strike through the parts you are changing, add what you need, and then have all parties initial and date the changes. Just as with the initial contract, be very specific when you are making changes to a contract.

Some contracts, such as leases, may need to be notarized. To do this, you must get a person who is a notary public to verify your identity (often by reviewing your driver’s license) and to watch you sign the contract. The notary then adds his signature and stamp and/or seal to indicate that the document is notarized. Contact your attorney to determine whether notarization is required.