In life, there are some areas where it is OK to buy bargain bin products and other areas in which you should not. The legal aspect of your business is definitely an area where you don’t need to take any financial shortcuts.
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I understand, it’s fun going out and buying new gear; it’s not fun going out and buying a document filled with mind-numbing legalese. I see this fact reflected everyday while perusing online forums. Inevitably, I read questions regarding where to find a good contract, and well-meaning fellow photographers often reply by posting a copy of their contract. Whenever I see this, I die a little inside. Okay, a lot.
I frequently read these templates, and while there are always a few diamonds in the rough, predominately the contracts aren’t so good. What happens if a photographer uses these “bad contracts”? Well, the photographer is potentially stuck with a hot mess. Remember Ben Franklin’s adage, “An Ounce of prevention is worth a pound of cure.”?
Preventative actions are always cheaper than curative actions. A $500.00 legal fee to ensure you have a proper contract is better than a $5,000.00 legal fee for litigating a bad contract. It kills me to see fellow photographers work so hard to grasp the settings of a camera, nail a session, then throw all that hard work away because they thought that it was OK to skimp on the legal aspect of their business.
Bottom Line: Downloading or sharing a contract in an online forum is dangerous.
The most glaring problem I see with this is, “How do you know who drafted that contract template?”. Blindly using a contract whose origin is unknown is just downright a bad idea. There is no way to vet the qualifications of the person who wrote the contract. The sum total of the contract author’s legal experience could come from watching a few episodes of Matlock or Law & Order. Why would you trust your business to them?
At the outset, copying and pasting a contract seems great. Its inexpensive, heck it’s more often than not free. It’s efficient; you don’t have to spend hours creating it or customizing it. You can just open up Microsoft Word, hammer out what you want and share the contract with your friends. You become the hero then, right?
Wrong. What happens when your friend uses your contract, relies on it to his detriment, and his business suffers because of it? Don’t you think that you would have some responsibility in this? Conversely, what if you use the contract and Joe Schmoe hires you, you think you are doing well, then the client surprises you and everything falls apart. What can you do when litigation ensues?
Inevitably, you will need to retain an attorney, which will end up costing you several thousand dollars. How will you feel when you realize that if you had only spent a few hundred dollars all of this could have been avoided?
I sincerely believe that the person who posted that contract online will not be there to hold your hand. You will be left dealing with an angry client and spending your hard earned money on attorney fees. All of this can be avoided by simply being mindful of the legal aspects of your business, including any legal document you choose to utilize.
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What if an attorney drafted it and it is being shared? That’s okay right?
Let me ask you this, “What if someone takes your work and distributes it freely to everyone over the internet?”. It would hurt your business, right? You would probably be peeved to say the least. Or think about it like this, “How do you feel when a client takes your copyrighted photos, takes them to <insert superstore/pharmacy> and prints out your photos?”. Don’t deny it, you be angry because that client stole from you. She took money out of your pocket by illegally copying something that you owned the copyright to.
The same concept would apply if the client took that photo and then uploaded it to a free stock photography website. It is now available for thousands of people to steal without paying you anything for your hard work. Attorneys function similarly to photographers; they work on a case-by-case basis. An Attorney’s livelihood is dependent on them obtaining money for their work product.
Additionally, the Attorney drafted the document for the sole use of the person who is now uploading that document. What this means is that the document has been tailored to THAT specific photographer’s needs. That photographer’s business may be diametrically opposed to the way your business is run. Each small business owner has a different set of goals for their business, which translates into a contract that must focus on those varying needs and desires.
Another potential problem with stripping a contract off of an internet forum, is that it may have been drafted with a different state’s law in mind. The United States is a big place and, if you did not already know, it is composed of fifty states. Each state has its own contract laws. Using a contract in Arizona that is based upon California contract law will not help you much.
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A contract may also have a choice of law provision. You could download what you believe to be a contract from your state, then, later on during litigation, realize that it has a choice of law provision for a completely different state. The contract could also waive the right to litigate certain issues or state that all disputes must go through binding arbitration in lieu of litigation.
Whatever you do, treat others as you would want them to treat you. Be mindful and respectful of other industries. Treat other vendors (attorneys, business consultants, prop vendors) the way you want to be treated. (But, this is an entirely different subject for another time.)
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Why shouldn’t I just draft my own contract?
You may be the smartest person in the room more often than not, but if you don’t have sufficient legal knowledge you are setting yourself up to draft a bad contract. This is why attorneys spend hundreds of hours studying their craft and hundreds of thousands of dollars in obtaining a Juris Doctor and a license to practice law.
There is so much more to writing a good contract than simply writing down what you want to happen on paper. There are legal theories that the average person, unless they attended law school, will know nothing about.
If you think that you can just Google what you need, then you are sorely mistaken. Yes, you can learn a lot by looking online. But googling legal answers make you a lawyer as much as using webMD makes you a doctor. Most websites do not vet what is posted on them. This leads to contracts being posted by individuals without any legal education and no knowledge of the methodology behind contract construction; which an attorney can spend a lifetime acquiring.
Constructing your own contract without a legal education is akin to a client setting up her camera on a tripod and using a timer to take a Christmas picture. True quality is reflected by the experience the creator has with her chosen medium. An amateur photographer will get an amateurish looking Christmas photo. The same applies with contracts.
From a legal perspective, constructing your own contract creates a veritable minefield of potential legal dangers for your studio. One of the most significant problems is that the end result of an inexpertly drafted contract is a legal binding contract that can work against its creator. Sometimes, you are better off without a contract than constructing one on your own. If litigation arises, the contract terms bind both parties, especially the party who is utilizing the contract in the course of their business transactions.
The internet is rampant with examples of lawsuits ranging from miscommunications between parties due to obligations and expectations not being expressly outlined in the contract, to litigation arising from a client unsatisfied with the work product received from a studio.
What if I don’t have the money for an attorney?
The answer is quite simple, save your money. You probably already save money to upgrade your gear or your office, create a special fund for legal issues. After all, what better to save for than a way to preserve your livelihood?
You can also seek out more economical resources. There are plenty of on-line legal resource providers where you can purchase a standard boilerplate contract. Yes, these are acceptable if purchased from a reputable, vetted vendor who has a legal education and a professional background. This step can at least point you in the right direction. It is also safer than drafting your own contract or electing to operate without a contract.
No matter who you use, there are plenty of online services to choose from. But, whomever you use or whichever service you utilize, do your homework first. Research the website, look for reviews, talk to other people in the photography industry, etc. You will be happy that you did.
So, where do I even start?
Sit down and write out your business goals. Think about what must happen to meet those goals. Think about what business practices and policies you would like to integrate into the contract. Take these ideas and form a list of provisions you would like your contract to contain. Take this written list and have it on hand to compare to, or use in conjunction with, whatever resource you seek out for assistance.
This will streamline the contract creation process and make it easier in the end. Seek out an attorney whose practice focuses on business transactions and contract interpretation and construction. Show the attorney your list; being organized will save you time and money.
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What if I’m a photographer sharing contracts? Or recommending a site?
STOP!!! Make sure you are knowledgeable about the legalities of the contract you are sharing. If it is a professionally drafted contract, you may be liable for damages if you are disseminating the attorney’s work without license to do so. If you are recommending a website to purchase documents from, ask yourself what do you really know about the site and the legal background of the person drafting the documents? Think about this, if you were on the receiving end of the information, would you want to be referred to the website?
The legal aspects of running a business are not something to take lightly. If something does happen, you want to be sure your business can weather that storm. So my question to you is, how much is your photography career and business worth to you?