Ah, so contracts – what exactly are they all about? We’re going to dig right in, but first, let’s see what a contract actually is. A contract is an agreement or a promise that has legally binding rights and obligations which the courts can enforce. Contracts can be created orally, written communications, or drafting of an official contract. Well, you knew that right? But it’s oh-so-much more than just a piece of paper with writing. There are basics of contracts law and legal theories that make up the contract (another reason sharing contracts is bad!).
Here are the basics of understanding a contract and what they are all about!
What makes up a contract?
Contracts are legally binding agreements between parties. To be enforceable, contracts must meet certain requirements including the exchange of consideration (each party has to promise or deliver something of value to the other), capable parties (mentally competent, not underage), offer and acceptance, and agreement on the contract.
What should my contract include?
Here are a few of the major points photography contracts should include
- Specifics – At a minimum, your contract should include the specifics of the transaction. Including parties names, photographer name, monetary exchange, promised product to be given in exchange for the funds. *If someone is a minor you must have their parent/guardian sign the document or else the contract is null.*
- Cancellation Policy – This policy works to protect yourself/time and inform your clients ahead of time of their options if they need to cancel. Informing someone of this policy after the fact can lead to a bad taste in their mouth, and we don’t want to mess with word of mouth marketing!
- Late Policy – Same with cancellation, let clients know your late policy. There’s no right or wrong policy. Just be consistent!
- Expectations – Outline all expectations including turn around time, guarantee of quality of product, how/when products will be delivered, how long they have to order, etc.
- Do not edit/reproduce -This section can probably go under the “copyright” section, however, I find it important in today’s technology age to break it out to emphasize importance. Everyone has editing programs at their fingers tips…even changing a Facebook profile picture and using the crop tool constitutes editing of the photograph as it is compromising the integrity of the photograph as the artist intended it. Many clients confuse copyright/print release (see below) and may honestly (or dishonestly) believe they have the right to edit their photographs because they are in them. Maintaining copyright ownership and explicitly spelling this out you will be working to preventively nix any potential issues in the bud. Further, outlining that scanning of a photograph also violates copyright law may prevent this situation.
- Copyright – This clause can release the copyright from the photographer to the client. If you transfer the copyright by contract, the photograph no longer belongs to the Photographer. In fact, in these cases, the Photographer can technically never use the photographs without permission of the client! It is important to ensure there is a provision to protect your artistic property and keep your copyright intact.
- Model Release – This is a legal release that is signed by the subject (or parent/guardian) of a photograph granting permission to publish the photograph in one form or another, typically for marketing and portfolio materials. *Especially true for minors*
- Substitute Photographer (mostly applicable for wedding photographers) – This clause is imperative because life happens! You want to be able to have a second or substitute shooter take your place in the event of an emergency. I personally emphasize this to my brides.
What types of legal forms do I need?
- Portrait Agreement: At the very core of the client/photographer relationship is the portrait agreement. This should outline the very basics such as session date, payment, cancellation policy, etc. Without this, the expectations and policies of the relationship are not defined…leaving the situation on a precarious ledge – it could either fall towards good or bad. I’d prefer to stay on the side of good!
- Model Release: This form is typically signed by the subject of the photograph (or parent/legal guardian if they are a minor) giving the photographer permission to photograph and display their photographs.
- Print Release (if give digital files): It’s our job as the photographer to educate our clients on their rights when receiving digital files. What restrictions are you going to place on them? What privileges are you going to give? Most clients want an unlimited print release but are often confused with calling it a copyright. Become educated yourself and educate your clients in return about the difference between a print and copyright release.
- Independent Contractor Agreement: These agreements are imperative when pairing up with anyone in the business (i.e. second shooter, graphic designer, assistant, etc). An independent contractor is a person that provides goods and/or services to the photographer under the terms in this agreement. Unlike having an employee on staff, this independent contractor doesn’t work regularly for the photographer but on as “job for hire” basis. Just like with clients, outlining the expectations and policies in an agreement help to set the relationship up for smooth sailing.
- Copyright Notice: Protecting copyright is very important to artists! Most clients couldn’t care less about copyright; if they purchase digital files, they just want to print! Ensure that you have the above-mentioned print release, but include a copyright notice (either separate or within the portrait agreement) to put your clients on notice that copyright laws DO apply.
Can contracts be digitally signed?
I like to embed my contract in a private page on website + client guide + payment button for quick ease of sending to a client.
To get your own contracts, either seek out an attorney in your jurisdiction or check out these Photographer/Attorney drafted forms.
NEVER take a contract from someone else.