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.

A transparent approach to privacy policies

Transparent definition

Richard Beaumont’s article “Transparency Should Be the New Privacy” echoes a point I’ve also been making recently: data protection or privacy is mostly about transparency and trust. Sure, compliance is essential but from a data subject or consumer’s perspective, how transparent you are about how your process the data subject’s personal information and whether your activities engender trust are arguably as important. Achieving that requires a varied approach to data protection and one of the key elements is the document you publish about this, namely the privacy policy (also known as a “data protection policy”, “privacy statement” and other titles).

As Beaumont points out:

The website privacy policy is the basis on which organisations can claim they have received consent from customers/visitors to collect whatever data they want and do what they like with it. In a data-driven world, they are important documents. Expensive lawyers are often paid large sums of money to write them in the full knowledge that they will rarely be read. Of necessity, it is written in legalese that most people won’t fully understand, and it is long because it has to cover all eventualities.

Of course, hardly anybody reads them. In the vast majority of cases, it would be a colossal waste of time.

I don’t agree with an approach that obscures privacy policy wording by using legalese and complex language but privacy policies are typically not read and understood before data subjects share their personal information. On the other hand, Beaumont makes a number of good points about the purpose of most privacy policies:

However, the problem is not really with the privacy policy itself as a document; it is the fact that it has been mis-sold to us. We are led to believe its purpose is to inform. We are told this because consent relies on us being informed about what we are consenting to. It is the basis of almost all privacy law throughout the world.

However, if that were true, it wouldn’t be buried in a link at the bottom of the page and written in dense text that is often also in a smaller font than the rest of the site. Website designers and copywriters know how to inform people online. The privacy policy is the document on any website least likely to inform the visitor in any meaningful way.

The reality is that the privacy policy is designed to protect the owners in the case of a dispute—which is what most legal documents are designed to do. There is nothing wrong with this—these documents are necessary in certain circumstances. It’s just that they don’t fulfil the more common need for accessible information about privacy practices at the company.

He goes on to propose a “transparency policy” as an alternative to a conventional privacy policy. I don’t think we need a new term for the document except where using a new name shifts our perception of the document’s role. I’ve been reading a lot more about more visual legal documents and I like Beaumont’s suggested approach, at least in part:

The transparency statement will be short, clear and simple to understand. It might borrow from the “layered” privacy policy model and would almost certainly involve a strong visual element. It will be easily accessible and you will be encouraged to look at it, especially on a first visit. It will be the basis on which the website will set your expectations for how you and your data will be treated.

His model involves a transparency statement operating alongside a privacy policy which would give the transparency statement important “legal weight”. I don’t think this is necessary, though. I prefer some lawyers’ approach of publishing a “privacy statement” rather than a privacy policy. Although privacy policies are frequently framed as documents you, as a data subject, agree to, they can function just as well as statements of what personal information is being collected; how it is being processed and under what circumstances that personal information may be disclosed and to whom.

When I prepare privacy policies, I usually pair them with a website’s terms and conditions which invoke the privacy policy as an explanation of what personal information is processed and how. The terms and conditions then reference the privacy policy and provide the “legal weight” Beaumont refers to. In that model, a privacy policy could be reframed as a streamlined privacy statement along similar lines to Beaumont’s suggested transparency statement and lawyers. Inferring agreement with a privacy statement becomes largely unnecessary and it would only really be important to establish that data subjects agreed to the terms and conditions themselves which, in turn, would point to the privacy statement for information about personal information processing.

A streamlined privacy statement would also be better suited to more visual representations of its contents which makes them far more intelligible and, by extension, a company’s data processing activities more transparent. With more transparency comes more accountability and trust. In addition –

Because the transparency statement is also more likely to be read, commented on and engaged with, it will likely improve over time, and accepted standards might emerge. This would potentially create a virtuous circle that further improves clarity for consumers.

Emerging standards have further benefits which I find really exciting. The bottom line, though, is Beaumont’s conclusion:

Transparency statements could be the vehicle to enable the majority of people to make better-informed choices than they currently do and use a truly market-driven approach to online privacy practice.