Which contracts photographers should consider using

Which contracts your clients should sign

A photographer asked a great question about contracts recently:

I would like to redo my contracts. Would like to know what do you get clients to sign before a shoot?

Disclaimer: This note is a fairly broad overview of many of the major themes you, as a photographer, should think about and which contracts photographers should sign with their clients. It isn’t legal advice or even the best advice for all photographers. It should give you a more informed starting point for a further discussion with your lawyer.

There are two key documents that you should have. The first is a contract governing your services and the other is some sort of privacy statement.

Services contract

The services contract needs to cover a number of themes both for clarity and to make sure you address your common risks. I also refer to services contract provisions as “terms and conditions” in this note.

For starters, use clear, well defined terminology is really important. It may seem pedantic but clearly defining key terms is essential for a clear and intelligible contract which, in turn, is more likely to be enforced if you ever have to test it. Obviously the content of the contract is very important but a contract written in confusing language can be very difficult to understand and enforce effectively. You typically include this terminology in a glossary in your contract.

Your services contract must obviously deal with your services, how you will communicate them and what you will charge for them. Think about issues like scope creep (where your services change without necessarily agreeing on the changes specifically) and amending your pricing as your scope changes. The model I prefer is to use a standard set of terms and conditions that refer to a separate booking form (that can be an online form or a paper form that your client signs) instead of preparing a lengthy contract that contains all the variables such as client details, services required and pricing. The booking form model that refers to the terms and conditions is less intimidating even though the terms and conditions, themselves, will be fairly detailed to make sure you deal with all the important themes.

One issue which comes up frequently in photographers’ groups is a cancellation fee. The Consumer Protection Act enables clients to terminate advance bookings subject to reasonable cancellation fees. Define those in your contract and set cancellation periods which may attract varying fees. For example, you may agree that if the client cancels a shoot 3 months before, the client will pay Rx; 1 month before, the client will pay Ry and 2 weeks before, the client will pay Rz. This will depend on your booking lead times; whether you can replace that booking and other similar factors. You will also need to align these cancellation fees with the Consumer Protection Act’s mechanisms and intent.

As a photographer the licensing aspects of your work are critical. The Copyright Act generally recognises your clients as the owners of the copyright in your photos if they commission you to do the work and agree on a fee for that work. This is good for your clients because they have more control over your deliverables but you have to consider what you will need to do with the photos. Because, by default, you are not the copyright owner in this context, you are not entitled to share the photos as part of your portfolio, restrict what your clients can do with the photos and exercise much other control over the photos’ use.

The Copyright Act gives you a way to change this default position. You can agree with your client to opt-out of the default copyright ownership mechanism in your contract. It is pretty straightforward but you need to include that in your contract. You may also want to think about including a mechanism in your contract which enables you to withhold your deliverables if your client fails to pay you, for example. This would be a separate clause in your contract.

Other clauses you’d include in your contract would be –

  • fees and payment;
  • privacy (linked to the privacy statement which I discuss below);
  • dispute resolution;
  • breach and the consequences of a breach;
  • termination;
  • common no-variation and similar clauses; and
  • domicilium clauses which can be pretty useful for different situations.

Booking form

A booking form is a convenient way to sign a client. Here are a few things to include:

  • Client details (name, contact details, address details);
  • Shoot details (date, times, locations);
  • Fees due (linked to specific deliverables), including deposits due;
  • Your specific deliverables;
  • Cancellation fees (you can include these in your terms and conditions but including these in your booking form makes them more prominent and confusion less likely);
  • Your details;
  • Express confirmation that your client agrees with your terms and conditions and privacy statement;
  • Signature and date fields (the form these will take if you use online forms can vary).

Privacy statement

As a photographer you are dealing with a lot of personal information. Using personal information often requires permission from the people the personal information relates to and the way you obtain this permission is a privacy statement (also known as a privacy policy or data protection policy).

As a starting point integrate your privacy statement with your services contract so when the client agrees to the services contract, s/he also agrees to the privacy statement.

Broadly speaking, the privacy statement must deal with these broad themes:

  • what personal information you will collect and from which sources (for example, automatically through your website, personal information your client volunteers through your booking form or contact forms and so on);
  • what you will do with that personal information (remember to include adding photos to your portfolio or Facebook page for marketing purposes, for example);
  • under what circumstances you may disclose personal information to third parties (these third parties may include your vendors for printing; law enforcement and other legal authorities); and
  • where you store personal information and, broadly, measures you take to secure the data (this will often mean identifying your hosting provider, especially if you use foreign hosting providers and will be transferring personal information across borders).

You will probably include other people in your photos (especially if you do functions and have the usual group photos) who have not signed your contracts. You should require your clients to obtain permission from people they want included in these group photos to be included and their agreement with your data practices which are explained in your privacy statement. How you do this can vary. You can prepare releases for subjects to sign and have them sign in advance or on the day or you can prepare something for your clients to have these participants sign. This can be a cumbersome process so consider the process with the least friction and which still results in permission from these subjects to take photos of them and use those photos for different purposes.

This is more important if you intend publishing photos on public platforms (for example, Facebook). Simply taking photos, making prints and handing these to your client probably won’t require you to go to these lengths because a subject who poses for a photograph clearly consents to being photographed. You’ll need to use your discretion.

It is very important to be sensitive about photos of children. You are not permitted to take photos of children and share them without their parents’ advance permission so make sure you obtain clear consents when it comes to children.

Get it in writing

If you capture the terms of your agreement with your clients in writing, you take huge strides towards reducing the likelihood of confusion and disputes. A written contract can be printed on paper. It can also be digital and part of an email or published on a website. Find the best medium for you that strikes a balance between clearly conveying your contract terms and being relatively accessible and convenient for your clients.

I have prepared a service contract and privacy statement for photographers which I’ve since updated. These two versions should give you a fairly decent idea of what your contracts could look like.

Supporting Photographers through the #PhotoBizLegal workshop

The PhotoBizLegal workshop is a start, an introduction for photographers who want to learn more about the regulatory environment they operate within and how to better structure their work to steer them clear of common risks and pitfalls. I won’t teach you to become a lawyer. I will show you what can go wrong and how to avoid falling into the same traps so many photographers succumb to, and unnecessarily at that. My goal is to share enough knowledge with you to empower you to focus on your work, your innovations with the security of knowing enough to cover your more common risks that shouldn’t stifle your creativity.

PhotoComment and Web•Tech•Law are hosting the first PhotoBizLegal workshop at the Bensusan Photographic Museum in Newtown on 7 September. I’m pretty excited to present this workshop and this has been in the works for a while.

You may know that I am a passionate amateur photographer (my family receives most of my attention). I am also passionate about supporting creative professionals and enabling them to become more successful. The PhotoBizLegal workshop is an opportunity for me to blend both passions and share some of my knowledge and experience which I have gained in my time working as a lawyer with a variety of innovative business owners to help them better support their growing businesses in a rapidly changing environment. Seeing creative people stifled by the unknown or by misunderstood legal and compliance challenges is enormously frustrating. I see it as a tragedy because so many of these challenges can be addressed, if not overcome, armed with the right knowledge and an appropriate strategy that is designed to support, not suffocate.

The PhotoBizLegal workshop is a start, an introduction for photographers who want to learn more about the regulatory environment they operate within and how to better structure their work to steer them clear of common risks and pitfalls. I won’t teach you to become a lawyer. I will show you what can go wrong and how to avoid falling into the same traps so many photographers succumb to, and unnecessarily at that. My goal is to share enough knowledge with you to empower you to focus on your work, your innovations with the security of knowing enough to cover your more common risks that shouldn’t stifle your creativity.

I’ve been talking to Tristan Hall from PhotoComment and Dorothy Haggard from Hypertext, PhotoComment’s publisher, for a few months about the workshop and I think we have something both practical and relevant in store for workshop attendees. Both Tristan and Dorothy are passionate about creating great experiences for photographers and being able to share legal strategy and legal knowledge in collaboration with them is pretty exciting.

I am going to explore a couple themes at the workshop which include the following:

  • an introduction to contracts you should have in place (and a few creative tips on how to implement them effectively);
  • content licensing and copyright implications for your work;
  • an introduction to some relevant legislation that affects you; and
  • the opportunities and risks the social Web present you with and a few ideas about taking advantage of it all.

These may not seem like terribly exciting themes but they are pretty fundamental to your work and your businesses. I intend to run an engaging and interactive workshop, not a legal textbook presented in PowerPoint. I encourage participation, questions and a sense of humour will help. Join us, learn from what we have to offer and let me help you focus more on what you do best and less on the legal unknowns.

Play With Some New Tech

Our sponsors will also have some very interesting new technology for you to play with so bring your DSLR cameras with you. We are also going to speak to the museum staff about giving you an opportunity to spend some time in the breaks (as well as before and after the workshop) in the museum itself capturing moments with all that terrific history.

Follow Us for More Information

There are a few ways you can keep up to date on our preparation for the workshop as well as a bit more information about what to expect. If you prefer Facebook, check out the PhotoComment page where Tristan and his team are publishing updates and teasing fans. If you have made the leap to Google+, check out the PhotoComment Google+ page for similar updates.

I am going to be posting updates using the #PhotoBizLegal hashtag on Twitter, Google+ and Facebook (the Google+ and Facebook hashtags are a little experimental and might not work as well as the Twitter version) so look out for that too.

Feel free to get in touch with me or PhotoComment for more information and, if you are attending and have questions, tweet them using the #PhotoBizLegal hashtag or email us. I’d like to deal with questions from social media at the workshop too if we have time.


The Details

The details, in short, are as follows:

Where: Bensusan Photographic Museum, Museum Africa, Newtown.

When: 7 September 2013, registration at 08:30 (we will finish off around 14:00).

Cost: We are extending the early registration fee of R350 until midnight on 25 August. The cost goes back up to R500 on Monday, 26 August and our ticket sales cut-off is around 30 August for catering (tea, coffee and a light lunch) purposes.

How to register: Visit the workshop page on the PhotoComment website and complete the form on the page. You can also pay online using PayFast.

<

p>Join us, I’d love to see you there.