29 Nov 2022
22 Jul 2022
New photographers often overlook the importance of crafting a solid legal agreement that outlines the terms and conditions of a particular gig. You might think that a simple discussion during the sales process about what each party expects or agreeing on a quote beforehand is sufficient. However, the reality is that if you are getting paid for your services, protecting yourself and your client through a photography contract is a crucial first step to completing any project successfully.
A photography contract, therefore, ensures that you and your client have a written legal agreement you can rely on and refer to. It is fundamental that you draw up a solid contract, detailing the terms and conditions of the photography service, before providing professional photography services.
This guide provides an overview of the top 10 things to include in your photography contract to ensure that you and your business are protected, and your clients feel secure.
A photography contract is a written legal agreement used when a client hires a photographer for photography services. It covers the terms of the agreement and tasks to be done by the photographer, as well as the client’s obligations. Terms and conditions can typically be negotiated prior before both parties sign the document such that a compromise is reached.
Photography contracts are beneficial because they set out in written terms all the essential details of a particular gig or service - ensuring that the client and the photographer (or business) are on the same track.
Prior to contracting, it is important that you and the client are on the same page. This means that the sales process is crucial in figuring out what each party expects. The contract is simply a mechanism for solidifying what has been agreed upon in writing.
Although each specific contract will vary depending on the scope of engagement, nature of the service, and client profile, this guide will touch on the top 10 most important provisions that are essential to ensuring that your photography contract is legally enforceable. These clauses are completely customisable and can be changed to meet your specific needs.
For legal purposes, it is important that you clarify who exactly is involved. Put down complete contact details and the address of you and the client at the very start of the contract. Simply putting down their email address is not enough - try to write down both sides' physical addresses and/or locations if possible. Providing complete contact information as such ensures that either side can be reached if needed.
This section should cover the basics: what type of service is being provided, as well as the time, date, and location of the photography service.
First, specify what type of service it is - is it an engagement, marriage, product advertisement photoshoot? What exactly is being provided in exchange for payment? Oftentimes you will have already discussed this on informal or vague terms before contracting, but it is important to get even more specific whilst drafting the contract – ideally, you should be able to write down the precise number of photos or kinds of shots to prevent disputes.
In addition to clarifying what the service is, you should address the question of when: include an estimated timeline and key dates which align with both the clients’ and your schedule. Making this clear at the outset will ensure that you can plan out your schedule and the client knows what to expect, and when to expect deliverables.
You should also include the location(s) of the photoshoot, particularly if the shoot is spread out over a period or will be shot in many different locations.
Cancellation policies are integral to protecting your photography business, particularly when a client decides to cancel on short-term notice. The conditions and strictness of the policy is up to you, but as a basic requirement, it should explain how clients should communicate their cancellation ahead of time, as well as the relevant timeframe for cancellation – ie. the latest possible time they can do this without incurring a late cancellation fee and/or getting a refund. It should also make clear that if this time frame or policy is not adhered to and the client cancels, a cancellation fee will be incurred as a result.
You may also want to include a rescheduling policy which provides for scenarios in which the session will be rescheduled – for example, under certain weather conditions, etc.
As mentioned, the more precise the better. You may want to state what, if anything, you’re responsible for if a cancellation does occur.
In this section of the contract, you should include all relevant payment details, including any deposit, retainers, or other fees you plan on charging. You should also make clear the payment schedule – ie. whether you expect payment to be given on an up-front or interim basis.
If there are any additional costs you anticipate or want to account for, for example, travel costs, you will want to mention that at this point as well.
It is good to specify what procedure is in place if these payments are not made or fail.
The copyright clause is particularly important when it comes to photography services. Unless you choose to transfer your copyright to your client, you retain that copyright and therefore own the photos you take. Nonetheless, it is recommended that you reiterate this in the contract as clients often overlook this - thinking that because they have paid for photos, they automatically own them.
Note that if there is a work-for-hire clause in the contract, this means that you have fully signed off your copyright to the client. The result of this is that all photos created under the agreement are theirs - as you become an employee, rather than staying an independent contractor. It is crucial that if this is not what you want, you clarify this with your client, and negotiate the terms if needed.
Robert Freund, an attorney at Robert Freund Law explains that usage rights are critical: they determine where, in what form, for what purpose, and how long any given client can use the images for.
In this section it is important you outline the ways in which your client can use your images, as well as any restrictions on their usage to ensure that you are compensated and recognised for your work. Oftentimes, photographers choose to grant usage rights for a fixed period rather than an unlimited period. How far those usage rights extend (if any) will naturally vary depending on the client – for example, whether they are a commercial or private entity, whether they are using those photos for a product campaign or for personal use, etc. Based on the client’s profile, think about whether there are any timeframe or platform limitations you wish to impose. Again, be specific.
You may also want to address whether you want your name to be placed on the photos when those photos are used or distributed. This is otherwise known as ‘attribution’ – and is important as it affects the level of recognition and exposure you might receive. Note that the right of attribution is different from copyrights in the photos .
A limitation of liability clause is important to include so that you are protected from being held responsible in face of problems out of your control - like a force majeure event, injury, etc. Ideally, you should outline procedures in response to potential scenarios and claims.
If you plan on sharing the photos in a public manner, you must include a section that will need a release. Even if you don’t plan on publishing them publicly, it is a good idea to secure them for legal protection purposes.
A completed release makes clear that your client has warranted and given permission for certain produced photographs to be used. It grants authorisation.
This provision ensures that you agree to not distribute confidential information during and after the completion of the project. If you are working with a commercial client you may have to sign an NDA, but this will ensure that their confidentiality is protected.
This is a very important provision as it enables you to limit and cap the potential amount of damages your client might try to claim ahead of time. This is especially relevant for photography contracts because it is hard to determine the actual value of the photos.
It is recommended that you cover the issue of the exact damages which will be incurred if you damage or destroy your client's material, and likewise what damages apply if your client does the same to your material. Typically, damages tend to simply be equivalent to the replacement amount, but this can be altered according to your preferences.
In addition to the 10 elements we discussed and highlighted as being particularly crucial, you might want to consider including other standard clauses contracts often contain. This includes, but is not limited to:
In addition to these more general contractual provisions, as a formality, you should of course include signature fields so that the contract can be signed and be legally binding.
We understand that this may seem complicated - there is certainly a lot of room for mistakes if you are not careful. Don't worry, though, as we have comprehensive templates for your use. We have three main versions you can use depending on your needs and which party you want it drafted in favour of - ie. whether you are a customer, service provider, or if you simply want it in neutral form.
1. Video Production and Photography Agreement:
This agreement covers both video and photography services.
2. Event Photography Agreement
This is a service agreement suitable for event photography services (ie: special events, birthdays, product launches, etc).
3. Wedding Photography Agreement:
This is a service agreement suitable for wedding photography services.
The first thing is who retains the copyright. If there is a work-for-hire clause, the copyright has been retained by the client. Kari Bjorn, a professional wedding photographer, is of the opinion that such contracts are fine to agree to, as long as the photographer is aware of the arrangement and can ensure that they are being paid enough to release their copyright rights.
Another red flag as explained by Robert Freund, an attorney at Robert Freund Law is if the contract confers broad exclusivity rights to the images. This means that the photographer will not be permitted to use their images for their own purposes, such as to promote themselves or on their own website.
Usage rights usually detail how and where the client is permitted to use the images the photographer creates. It establishes that although the photographer generated the images and remains the creator, the client is given rights to share, access or distribute them. Usage rights do not mean that the client is permitted to free or unrestricted use, of course; the limits of use must be defined within the contract.
Mark Condon, the CEO & Founder of Shotkit, explains that in the context of a wedding photography client, for example, the usage rights might forbid the client from using those images for commercial or advertising purposes.
Unlike a contract where usage rights are granted, work-for-hire clauses permit the client, or contracting business to retain full ownership of the images produced.
As was touched on in the first FAQ question, a work-for-hire clause is a big red flag that every photographer should pay attention to. Despite this, ultimately, contracts are always negotiable, and the photographer can try to reach a different arrangement, such as retaining full ownership but conferring on the contracting business unrestricted, unlimited usage rights, for example.
 Kari Bjorn, professional photographer at Kari Bjorn LLC
 Robert Freund, attorney at Robert Freund Law
 Steve Skarupa, destination wedding photographer at 412brides
 Ben Earwicker, Ph.D. Founder and Mediator, Virtual Mediation
 Ben Earwicker, Ph.D. Founder and Mediator, Virtual Mediation
Please note that this is a general summary of the position under common law and does not constitute legal advice. As the laws of each jurisdiction may be different, you may wish to consult your lawyer.
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