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.
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;
- common no-variation and similar clauses; and
- domicilium clauses which can be pretty useful for different situations.
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).
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.