Photography Contract Basics

The first photography contract dating from 2,600 B.C. (Okay, not really. It's a land sale contract) - by Marie-Lan Nguyen

There are two types of people in photography: Those who get a signed contract before they set foot on a customer site, and those who are going to get burned because they don’t.

Every small business owner should understand contracts and how they work and that’s especially true in photography. You don’t have to be a legal expert, that’s why your lawyer gets the big bucks, but you need to understand them well enough to know when you need one and the basics of what goes into it.

It’s really a bigger topic than can be covered in a single article. The best advice I can give you is to go to your local community college, where almost every one will offer an evening course on contracts for small business owners. Or, at a minimum, get yourself a book on the subject and spend some time familiarizing yourself with the basics and put together some basic boilerplates.

A good contract doesn’t have to be War & Peace, delving into every conceivable aspect of human behavior, just cover the high points.  One of those high points should be a section that says if you have to sue to collect payment that you can also collect attorney fees.

Contract law varies between countries and even from region to region within countries, so make sure you understand the peculiar issues specific to your area. At a minimum, most contracts have to have the following:

The act being contracted for must be a legal activity. The biggest myth I run into is people who think you can mitigate criminal liability by pointing to a contract if you get caught. BZZZT! Wrong. If the contracted activity is illegal, your contract is void and you can be held responsible.

Two or more parties empowered and legally able to enter into a contract. Minors cannot enter into contracts and, if someone is signing for a business, they have to be authorized by the company to obligate the company in contracts. Getting the janitor to sign your contract is probably not going to be valid.

Some consideration. Something of value has to change hands. That can be money, an exchange of services, or almost anything that can be assigned a value.

When you need a contract is almost any time you’re going to be accepting an assignment as a photographer. Sometimes your liability insurance will require you to be under contract before they pay. So, when you watch your Canon 5D MKII or Nikon D7000 tumbling in slow motion horror from the balcony ledge, the insurance company is going to want to know if you were there working or just taking pictures on your own time.

Photography Contract Specifics

Photography contracts have issues that are unique to the business and need to be spelled out in advance. Probably the biggest issue today is who owns the copyright to the photos? In the old days when there was a film lab and later a print lab, it wasn’t unusual for photographers to hold the copyright to images indefinitely. Today that’s becoming more rare. In the digital age customers expect to take their images with them on disk and be able to do what they want with them. Photography is increasingly “work for hire” meaning the customer owns the copyright to whatever you produce while under contract.

Make sure you have that understanding in writing up front. You might be able to trap an unwary customer with limited use rights, but if they later get mad about it, that’s the last you’ll ever see of them. You won’t build a thriving business on misunderstandings.

Model Releases

If you want to use the likeness of an identifiable person in a commercial advertisement, whether they’re are a professional model or not, you’ll need a signed model release.

This is a different situation than merely taking their picture which, technically, you don’t need permission to do if they’re in a public space. Taking their photo and using it for commercial purposes are two different animals.

When in doubt, it’s always better to get a release. When the subject is a minor, you’ll need a release signed by a parent or legal guardian.

Other types of contracts in photography include:

– Independent contractor agreements
– Portrait contract
– Sport Action contract

If you search around on the web, you can find examples of the type of contract you need and there’s also software available for your smart phone and computer tablet that produces releases and contracts right on the spot.