You’ve got a ton on your plate when it comes to your photography business: you’re the designer, the marketer, the conceptualizer, and of course, the shooter, the editor, the product-deliverer. What often gets pushed to the back burner is the role of the legal planner. Many business owners feel like they just don’t have time (or the expertise, or the money) to properly plan for the legal aspects of their business, like a lawyer-drafted photography contract.
Cue Rachel Brenke, known everywhere as TheLawTog®. She’s made it her business to advocate for photographers by offering them the tools they need to keep their businesses out of legal hot water, and today is no different. We asked Rachel to tell us about some situations where having a contract could save a photographer from facing a huge legal (and financial) headache, and she delivered!
When you’re working with friends and family, many photographers don’t want to use a formal document because they feel like their friends will take care of them. It’s difficult to imagine that sweet Aunt Carol or your best pal from high school would ever do something to hurt you or your business.
But the fact is that your clients (even those that are friends or family members) “don’t know what they don’t know,” Rachel explains. “They don’t know that they don’t like your editing style, or how much you’re charging, or how many digitals you’re giving them, or how long it took for you to deliver the products.”
“I’ve seen this so many times,” Rachel says. “They end up not being friends anymore because the client posted an image without credit, or took a screenshot from a gallery. It’s quite common– something small causes some tension, and it goes downhill.” Even if the photographer is able to say, “Well, that was a learning experience for me; from now on, I’ll use a contract with everyone” and move on, it still leaves resentment behind,” Rachel explains. She’s heard of many instances where not having clear, written expectations from the beginning causes irreparable damage to a relationship. “Sometimes the friendships ends, sometimes the photographer never gets paid, and sometimes it just causes so many other issues that aren’t worth it,” she says.
Having a photography contract for ALL clients is key, and even more so, Rachel points out, it is necessary for business owners to enforce what’s in the agreement. “It’s just as bad,” she says, “when you have a contract but don’t enforce it because you feel bad that it’s a close friend or a family member; it just leaves behind resentment and anger.”
Contracts Are About Relationships
Contrary to popular opinion, contracts are not about staying out of court or being a hardcore meanie. Contracts are, in fact, all about building healthy relationships with your clients.
But contracts are full of legal mumbo-jumbo! Won’t they scare off potential clients?
Turns out, contracts have the exact opposite effect on clients. They set the stage for better relationships, clearer expectations, and more referrals. After all, it is an agreement. And agreements are based on trust.
CONTRACT (noun): An agreement or promise that includes legally-binding rights and obligations that courts enforce.
Your clients may or may not be all that interested in contracts. That’s why it’s your job to make contracts part of your process with every client you photograph. Your clients will respect you – and your work – more when you confidently step into the role of a businessperson.
Bartering Business Owners
Bartering with another local business? Trading headshots for a spot on the corporation’s business cards or photos of newborn props in exchange for promotion on the company’s website? Save yourself the heartache and sign a contract up front.
“A lot of times, photographers go into those sorts of business relationships and they’re scared to ask for things,” Rachel explains. “They feel like they’re imposing or they’re going to be told no. The other business, however, doesn’t know what to provide or what to do.” So, it can go one of two ways: the business can either give a lot or actually wind up giving very little. “I’ve heard it way too many times, where a photographer says, ‘Oh, I’ll take pictures, and then you promote me.’ They don’t go any further, they don’t have a contract, they don’t have anything in writing. The shop owner maybe throws a couple of business cards in the bags of their customers and that’s it. Then, the photographer feels like, ‘What?! I spent all this time and money doing these photos.’ In those situations, photographers (especially those who are really gun-shy about asking for another business to do things for them) could have just let the contract do the talking for them.”
Rachel also recommends outlining a commercial license before trading your skills and time, so that the business knows what it can do with the images you take. “Again,” Rachel states, “it’s a case of someone not knowing what they don’t know. The business will go and just use the images the way they see fit, and then the photographer gets upset. Sometimes they alter the image, or go and use it on a billboard. A contract would have eliminated all miscommunication.”
Photography Contracts: Not Just for Emergencies
Matthew Johnston, an attorney specializing in small businesses and creative firms, skillfully sums up the value of contracts for small business owners:
“I look at the practice of law and the advantages of good, clear contracts as not just protecting my clients’ interests, but advancing my clients’ interests, and trying to make their life, their business, and their transactions better in order to help them make more money.”
In other words, a good photo contract will help you book better clients who are the right fit for you and help your clients enjoy the most fulfilling experience possible.
The third scenario Rachel outlines is a lot more common than you might think. She points out that many times, with wedding photo contracts especially, you may have a contract with the bride and groom, but then a generous family member wants to pay the bill. “In many situations,” Rachel points out, “if you sign a wedding photography contract with the bride and groom, the wedding photography contract is only for the bride and groom. In some states, if mom pays, that may invoke some responsibilities that you, as the wedding photographer, have to mom.”
“Let’s say you take photos at a wedding and put them in an online gallery so guests at the wedding can purchase prints. It has to be written in the wedding photography contract that selling the event photography is okay because many privacy laws don’t allow for you to sell images in that nature without a specific release. The average wedding photographer doesn’t have that included in their wedding photography contracts.” When someone other than the contracted couple pays for the wedding photo service, you must be aware that each party then has certain rights.
Model releases are another big-ticket discussion for Rachel. “Most model releases are simply the client giving permission to the photographer to use the images, but they’re not giving permission for the florist, the stationery designer, the venue and all of those other vendors to use them in their businesses.” To solve this, Rachel suggests, you must have the proper commercial language in the photography contract template. “I would be willing to bet nine out of ten wedding photographers don’t realize that,” Rachel says wistfully.
Let Contracts Be the Bad Guy
Rachel believes that these are more than just legal documents. “Photographers are often afraid to tell their clients ‘no.’ Many times, they’re afraid to stand up and protect their business policies or their work. By having a contract, having it all spelled out in writing and agreed upon and signed, you can always refer to that and allow your contract to play the bad guy.”
Rachel’s line of choice when a disagreement happens? Just say, “Per the contract, this is what we agreed to.” She hears from business owners that having a written agreement takes a huge load off of their shoulders. If something serious comes up, she adds, the document allows a peaceful shift of the responsibility back on the clients. “To be honest,” she says, “if they had a problem with it, they should have mentioned it before they signed. Just refer back to the document. Let it be the bad guy!”
Don’t Live Without Contracts
Rachel’s rule of thumb is that everyone should have a contract at every shoot. “You can shoot without a model release, but you should never shoot without a photography contract. So many photographers do the opposite,” she says. “They just get a model release, which is good, but they don’t have any of the policies spelled out.”
Technically, Rachel explains, you can take photos, not get a release, and simply never use the photos for marketing the studio, and that’s okay. “Because of the contract,” she says, “everything’s safeguarded, the client’s expectations have been set, and so on.” So, her advice is to use a contract at the very least, then a model release so that your studio can use the images for marketing purposes.
Rachel advocates for the use of a print release, as well. She says giving clients permission in writing for how they may use their digital files is incredibly important. She also has a Product Delivery Agreement on her blog (it’s a free photography contract!) that she feels is crucial when selling high-dollar items to clients. “They basically make sure that the client has looked at the products and is confirming that they were in good shape when they were handed over.” Without an agreement like that, Rachel warns that photographers can get into the “My album’s ruined!” battle when the item wasn’t ruined when you dropped it off!
Stay Away From Stuffing
Finally, Rachel wants photographers to know that while having this document is key, “provision stuffing” can do more harm than help. “I see photographers in Facebook groups or in community meet-ups where they hear about client horror stories. Then,” Rachel says, “they go and whip up this provision, and they stick it in their contracts.”
Essentially, Rachel explains, it takes your client’s eye off the ball. Instead of paying attention to the most important details in your contract, they’re sifting through handfuls of muck that isn’t even applicable. She also warns that in court, these written agreements can be rendered invalid if they weigh too much in favor of protecting the photographer and don’t offer enough protection for the client. “Don’t stuff your contracts full of things you don’t need! It can hurt you in the end.”
The best way to be sure your business is covered? Make sure you have a photography contract and make sure you have a lawyer look it over before you use it with clients. Pay attention to special local or state stipulations that may work against you (or in your favor!) if you should ever be faced with a tough situation. And remember: protecting your business is just one of the many hats you’ll wear as a photographer!
Leave the Legal Jargon To the Lawyers
You’re (probably) not an attorney. But you do need an attorney-approved photography contract to make sure that your copy is actually, well, legal. ShootProof’s photography contract templates are lawyer-drafted and customizable. You can create your own photography contract template by copy + pasting an existing contract’s text into a new ShootProof photography contract template. With the legalese in place, you can automate this process and book new clients easily. Consider a photography contract template as essential to your photography business as cameras, lenses, and a closet full of really comfortable pants. Once the photography contract is out of the way, you can get back to creating!
Sample Contract Language
Here are 2 free photography contract sections of some sample contract language that you can find in ShootProof’s contract templates:
Limitation of Liability
While every reasonable effort will be made to produce and deliver outstanding photographs from The Shoot, The Photographer(s)’ entire liability to The Client for any claim or loss arising from The Photographer(s)’ performance is limited to a refund to The Client of the amount paid for services. The Photographer(s) cannot guarantee delivery of any specifically requested image(s) except for images made under such conditions that The Photographer(s) have complete control over all variables which contribute to the production of an image, including but not limited to, lighting, time, subject position and distance to camera. The Photographer(s) have the right to refuse to produce any image that could violate libel or copyright laws, or in the course of its production could cause or contribute to bodily injury, death, equipment damage or property damage or destruction. Additionally, The Photographer(s) cannot be responsible for the effects of the subjects’ physical appearance, including body position, facial expressions, blinking or clothing. The Photographer(s) cannot be responsible for the effects of environmental conditions, including, but not limited to, weather conditions, temperature, existing lighting or aesthetics of the shoot location. In the unlikely event of personal illness, injury or other circumstances affecting the Personnel (named in and defined by Exhibit A) that are beyond the control of The Photographer(s), substitute Personnel of high qualifications, subject to acceptance by The Client prior to The Shoot, may be sent to fulfill the obligations of the Personnel named in Exhibit A. In such case that The Client declines the substitute Personnel, The Client may instead terminate this agreement and receive a full refund of all moneys paid.
Copyright & Usage
As the author of all images made hereunder and as provided for by law, The Photographer(s) shall retain the copyrights in perpetuity, regardless of possession or ownership of negatives, photographs, digital files or any other format of reproduction. Use by The Client: The parties agree that The Client may use the images created hereunder for the specific purposes of promoting its own interest without limitation. This includes, but is not limited to, use of the images in printed materials, websites, signage, audio/visual presentations and public-relations distribution to media outlets for their editorial use. Use by The Photographer: The parties agree that The Photographer(s) may use the use the images created hereunder for self-promotional or educational purposes without limit to medium, date or geographic location.The Client agrees to indemnify and hold harmless The Photographer(s) for any legal action arising from a third party as the result of The Client’s use of the images created under this agreement.
Five Contracts You Should Have
- Adult Model Releases
- Minor Model Releases
- Property Release (if you’re using props such as vintage cars, or doing a photo shoot on a property owned by a third-party, then you should have this signed release.)
- Portrait Shoot Agreement
- Wedding Agreement
“We should live in a world where contracts are written in accessible language—where potential business partners can sit down over a short lunch without their lawyers and read, truly understand, and feel comfortable signing a contract. A world where disputes caused by ambiguity disappear.” –Shawn Burton, Harvard Business Review
Ambiguity causes conflicts. That’s why you should have a contract, even for the smallest shoot.
When you and your client sign a contract, you’re on the same page – literally. And that’s the best way to start any relationship!
Want one of TheLawTog®’s contracts for yourself? Purchase one in the Marketplace, right in your ShootProof account!
Still using paper contracts? Go digital and get a free trial with ShootProof!