What is a Photography Contract?
Commercial photography agreements are contracts between the photographer and the client who hires you to create images for them. Commercial photography agreements can be used for a wide range of jobs such as editorial photography, fashion photography, food photography, and more. They can include licensing terms, stipulating how the client is able to use the images you create and for which purpose. When creating commercial photography you are providing a service to a client in exchange for a fee. This agreement sets out the expectations for both parties and ensures that the rights and responsibilities for both the client and the photographer are clear. For many photographers , having a signed contract is standard practice when doing commercial work. Likewise, it is standard practice to deal with clients or, in some cases, managers, art buyers, editors, or agents, who have their own interests with respect to the images being created and can often be third-party-signatories to the contract.
Key Components of a Photography Contract
While each photography contract is unique to the specific project at hand, a well-drafted commercial photography agreement should include terms that cover the following key elements of the project:
Payment Terms. What will the photographer be paid and when? Will he or she be reimbursed for out-of-pocket expenses and, if so, by what terms?
Scope of Work/Project Deliverables. What work is expected from the photographer on the project? How can the deliverables be described to prevent future misunderstandings? For example, the number of photographs, hours of shooting time, number of final edits, deadline, etc.
Terms and Conditions of the Photography Agreement. This is always an important section to have in any type of photography agreement because it spells out certain things like, but not limited to:
Licensing Rights. Will the photographer retain all rights to the project? Will the client have unlimited rights? Copyright? Exclusivity? Derivative works (i.e., photos posted on social media)?
Restrictions on Use. Can the photographs be used in any other way other than intended? For example, if the parties agreed that the photographs would be used for an advertising campaign, then can the photographs be used for a billboard advertisement as well?
Legal Aspects of a Photography Contract
A well-drafted contract is not just a good faith gesture; it is a necessary protection that both clients and photographers should provide for themselves. The legal interests of the parties are oftentimes subject to conflicting interpretations, and a contract like this is the only way to foresee, and therefore to prevent disagreements.
As such, the contract should address intellectual property rights considerations, liability, and even breach of contract: With regard to intellectual property rights, it is fundamental to clarify who owns the rights to the images generated by the photoshoot, who they can be sold to, and who holds the right to commercialize them. Clients frequently feel they own the images, but that is often not the case. In the same manner, liability clauses need to be included in any contract of this type. Photographers need to protect themselves from various types of liabilities, given how the damaged or injured parties to a commercial photoshoot agreement can range from companies, to employees, to models who are pictured in photos that are sold, to even the photographer. Finally, as with any contract, breach of contract scenarios should also be addressed. For example, in the event that there is a disagreement among parties, how is it to be resolved? Is any portion of the fee to be refunded? Under what circumstances? Each of these provisions is necessary within any commercial photography agreement.
Guidelines for Negotiating a Reasonable Photography Contract
Negotiating a commercial photography contract can be a delicate process for both clients and/or photographers. What you want is a license which satisfies both you and your photographer, so that you can work together to get the project done, and avoid inequity or misunderstanding in the short or long term.
As the parties begin negotiating terms, they should not move forward without first determining which of the 14 considerations listed in the article’s Table of Contents matter to them. Then, each party should make an effort to learn about the other’s business practices to see where they are open to compromise. At the end of the day, it’s important to remember that serving one another’s business needs is a two way street.
Pricing and Budget. Whether prices are fixed, or amount to an hourly rate determined by billing increments, do each side’s expectations align with its budgetary needs? Consider not just the base fee, but additional fees for travel time and actual travel expenses. Remember that you don’t want to get billed from the first time your photographer comes out to your location to the last time he/she visits.
Licensure ("Rights"). Where you find ground on which to agree, consider whether the photos your photographer captures will be used on an exclusive basis, whether you’ll give your photographer limited rights of reuse, and whether you’ll both be comfortable if others use the same content for competing purposes.
Restrictions. Photography Agreements can be tightly wound for good reason., or very loose, perhaps by design. Either way, make sure that the restrictions you agree to make sense for your business, and don’t limit your ability to serve customers effectively. Also, keep in mind that, as with confidentiality clauses, you must determine the duration of restrictions for your business needs.
Deadline. Like other industry professionals, photographers are more expensive when they are under stress, racing to meet an impossible deadline. Be fair and reasonable in your expectations, and when you receive the final product, consequences that make sense to both parties in the event you (or your photographer) cannot meet the deadline .
Division of Responsibilities. Make sure you have a written agreement in which your collective responsibilities are clear and both sides appreciate what they will get, and what they will contribute. Inspection, Acceptance, Rejection. This is one of the most important pieces of a Contract for Services. It’s important because if you cannot agree on how a project has been completed (e.g. through an inspection process), you will have disagreements about whether a final product has been "Accepted" or "Rejected." Plan ahead how you and your photographer will determine the result.
Control. Many clients believe that they should have the ability to control how the photographer approaches the project(s) (and ultimately whether they are accepted), but photographers may not agree. And some clients may want too much control. Find the right balance between what is acceptable to both parties. Make certain that faces, bodies, and locations of people photographed will be controlled to your satisfaction-or not.
Termination. In the event termination becomes necessary, how will payment of expenses and fees (including hourly rates) be determined?
Indemnification. Being fair means being balanced. Each party can be required to indemnify the other for things going wrong through no fault of either party. But where indemnification is appropriate to protect each party for the negligence of the other, the requirements should be reciprocal and balanced.
Confidentiality. Protect yourself by ensuring that retained Photographer does not disclose any of your confidential information to third parties. Similarly, you should agree to treat as confidential any information shared with you by your Photographer.
Assignment. In many situations the inability of either party to fulfill contract provisions is not their fault. Allowing a party to assign its obligations to a third party for completion of performance is fair and reasonable.
Governing Law. Texas law governs. Nevertheless, when you work in a different state with multi-jurisdictional matters, you should have a Contract which provides that Texas law is the law that governs.
Tailoring Contracts for Various Photography Needs
Experts in the industry know that agreements for commercial photography vary by project. The photography for a wedding is very different from that of a corporate event, which in turn differs from advertising or fashion photography.
Just as the subject matter is different, so too are the forms for agreements. Portraits and events like weddings, bar and bat mitzvahs, family reunions and photographs for military and other special events are covered by contracts appropriate to those events. These contracts tend to be shorter, simpler forms because the legal terms are fairly standard (read: the parties have seen them before and know what to expect).
Corporate events are also covered by contract, like agreements for bar and bat mitzvahs. But because corporations are much more likely to become involved in litigation, it’s good insurance to cover every contingency. There may also be an entire purchase order and other "standard" forms that accompany such contracts, so the contract for photography services becomes part of a more elaborate package of documents.
Only the most complex of scenarios need an especially detailed and sometimes lengthy contract, such as for advertising and fashion photography. Whether the photographer is shooting a TV spot, print advertisement or fashion shoot, these types of contracts must take into account intellectual property laws, talent releases, model releases, payments to all the people involved, consideration of competitors, exclusive rights, usage and licensing. In each case the "devil is in the details," and one missed detail could leave a model without recourse, a talent out a month’s pay, or a photographer delivering an inferior product because of contractual disputes. Contracts should also be customized by medium, or format, to take into consideration the shooting specifics for each project.
Common Errors to Avoid in Photography Contracts
Many of the issues that arise from commercial photography agreements can be avoided by recognizing and addressing them from the outset. Some typical mistakes include:
- Not addressing exclusivity. If a photographer will be working exclusively, he or she should have a contract that so states. If an agreement does not specify exclusivity, it could be interpreted as allowing a photographer to broadcast or publish photographs of the subject everywhere when you may only want certain places or types of media to use them. Where exclusivity is stated, define what "exclusivity" means.
- Providing unlimited re-uses of a photograph that was shot for one specific use. A common mistake is paying for one-time use of a photograph for a very specific purpose, such as one-time use in a single ad, paying a photographer a flat fee, then finding out later that the photographer has sold, licensed or made the photographs available online.
- Changing an agreement after the fact. Whether the change is in fees or scope of services such as usage rights for the use of a photo, a change must be made in writing, signed by both parties.
- Involving too many people. It may seem like a good idea to have multiple people involved in the negotiation of a photography contract , but it’s usually best to have just one person, such as an assistant, handling the negotiations and formulations of the terms of the contract with the photographer. Some photographers have lost interest or decided against a project when multiple people were involved.
- Lacking a "kill fees" clause. A kill fee is money owed when a project is cancelled. For example, if you hire a photographer to shoot a wedding and it’s cancelled a week before the event, a kill fee would compensate the photographer for the time spent on the planning and for the inconvenience of cancellation. Consider including a provision that states that the client is liable for any expenses incurred by the photographer after a cancellation.
- Failing to make the final payment. Many photographers are willing to release each photograph individually before they get paid in full for them, but if you wait until payment is made to receive them all, you’re likely to have a problem getting one or more. Some photographers may feel you’re trying to get the photographs without paying for them. That’s why it’s essential to have a photography agreement in place that clearly lays out your rights and responsibilities and those of the photographer.
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