Eight. Contracts
Sure, I know: You’re not a lawyer, but you play one on TV. Come on, we have been on the up and up until this point; you have all your plans together and you’re ready to tackle the world, but you’re about to get blindsided if you don’t protect yourself and your business. Understanding contracts is a necessary evil. No matter what type of photographer you are—including a weekend warrior—contracts are part of the world we live in. In this chapter, we’ll explore some basic contracts and model releases to understand what they are and how they’ll impact your business.
I am not an attorney, but I can at least guide you on the things that you should care about when putting together your legal strategy. And make no mistake—you need a legal strategy. In this day and age, anyone can sue anyone for any reason they see fit. That doesn’t mean they’ll win, but they can make your life miserable. You owe it to your family, your employees, and your future to protect yourself as best you can.
After you read this chapter, I think you’ll have a sense of where you’re safe and where you’re exposed. If you think you have any legal exposure whatsoever, meet with an attorney and put together a plan of attack immediately.
Protecting Your Personal Assets
If you’re out there without being a true business entity, you’re playing Russian roulette with your business. It’s only a matter of time before someone comes along and sues you for something. Remember, we’re in an increasingly litigious society.
Ask yourself this: Can someone trip over your bag? Can you lose a memory card from a wedding? Can you miss a key moment at an event? If you answered yes to any of these, and you’re not a formalized business entity—that is, an S-corp or LLC—you have some serious personal exposure.
Let’s explore a scenario. Wedding coverage. First kiss missed.
It doesn’t matter how or why it happened, but it did. For whatever reason, you missed the first kiss. Without a doubt, the bride is upset and she wants to take it out on you. She decides that you ruined her entire day, and because of that, she is suing you for the entire cost of the wedding. You get served a summons for a $50,000–100,000 lawsuit.
Sound farfetched? Think it can’t happen? Think again. It already has. This has happened many times across the United States, and the bride is perfectly within her rights to sue.
Here is the problem. If you’re a sole proprietor, you could be on the hook for this both on a business level and a personal level. Translation: You could be sued for your personal assets—home, car, retirement, everything. Not only that, they can go after you for future earnings. So, if you can’t afford to pay, they can render a judgment against you for future earnings until you’re paid off. You do not want the stress of that on your shoulders. You have to protect your family, your employees, and your business.
Get Legal
It’s time to get serious about your business. It’s time to incorporate. We can’t go through every single type of business entity in this section—see Chapter 2, “Let’s Talk Business”—but it should go without saying that you need to meet with an attorney. Most business entities can be set up for about $1000 or less. Trust me, it’s worth every single penny for the peace of mind.
For the sake of this conversation, you’re an S-Corp. This gives you the tax advantages of being a sole proprietor and the legal protection of being a true corporation. You can’t be sued on an individual level for missing a first kiss. So, you can rest assured that your personal assets are protected even if you were to have this unfortunate accident.
Meeting with an attorney will help flush out a lot of questions you have. Do not buy one of those online incorporation documents. You’ll regret it soon enough.
Let me talk about a real-life scenario. There’s a wedding photographer in Seattle who is currently being sued for $300,000 because the suit alleges that he provided inferior service that has caused pain and suffering and a lifetime of lost memories. As of this writing, the case is still pending. The problem here is the photographer is personally exposed. I’m not sure if he will win or lose, but it doesn’t matter. The stress he must be feeling knowing that he could be done forever and be paying that $300,000 off for the rest of his life has got to be one of the most traumatic events in this man’s life. My heart truly goes out to him.
Wedding Contract Basics
Even if you’re set up correctly as a business entity, that’s not going to prevent someone from bringing a lawsuit against your business. So, how do you protect your business? What should be included as part of the wedding contract?
What Not to Include
Here’s what not to include as part of the wedding contract:
Meals or any other diva-like request. Get a hold of yourself. You’re a photographer, not a Top 10 Grammy-winning artist. No, you’re not entitled to a hot meal, even if you have worked all day. Holy cow. Are you kidding me? What job in corporate America have you ever held where you were entitled to and paid to eat? No job I ever worked at. When I was in corporate, they paid me to work, not eat. My boss told me to take a lunch break when I had time, and 90 percent of the time I ate at my desk while I worked. Bring a snack bar and suck it up.
We do not have this in our contract. We pack a cooler with us with water and snacks. And the vast majority of the time, either the bride or groom is gracious enough to either get us a meal or the venue will provide a boxed meal. If not, I could stand to lose a pound or two anyway.
Breaks. No. You do not get a break. What, do you work for the photographers’ union or something? Last I checked there was no Jimmy Hoffa of the photography industry. Work, and do what the bride and groom have paid you to do. Rest on Sunday. Saturday is meant for ass-kicking! It’s game day and you’re the quarterback.
What to Include
Contracts are made to highlight deliverables and any other stipulations around the event. Think about a contract as “terms and agreements.” You agree to perform this task and they agree to pay you this amount. What happens when someone doesn’t deliver? This is called a breach of contract. When in breach, what happens next? All of this should be highlighted in the contract.
Key Concepts
Here are some key concepts to keep in mind:
Payment terms. How much are they paying you and when it is due? What are the terms of payment? What happens when they don’t pay? These are concepts you want to flesh out.
For us, final payments are due 30 days prior to the event. In the event we don’t receive payment, we reserve the right not to show up for the event. Now, would I ever do this? I am not sure. If I were working with a client 30 days prior to the event and had no resolution on payment, there is a very good chance I would not show up, but it wouldn’t be a surprise to anyone.
Why? Because we have that 30-day window that opens the door for conversations well in advance of the event. The last thing I want to do is wait until the week of the wedding and start looking for payment. That creates a massive amount of tension between you and the client and, since your ultimate goal is to be a part of their big day, this is not the experience I would be looking for my clients to have.
Deposits. Deposits are nonrefundable. This needs to be stipulated in the contract. Not only does it need to be stipulated, but they better initial right next to it. All credit card companies will err on the side of the consumer if they do not initial right next to that clause. Clients can claim they never saw it or it was hard to read or understand, and the credit card companies will issue a refund 99 percent of the time. I know, because we had it happen to us. After that, we had our attorney change our contract to ensure that the initials were right next to that clause.
The rule of thumb for the credit card companies is that if the signature is more than about a thumb’s width away from where it states the deposit is nonrefundable, then there is the potential for it to not have been clear to the consumer, and therefore they will refund them. The best bet is to have your contract adjusted to include the “initial here_____” language.
Staffing. What happens if you get sick or in a car accident? We have it in our contract that in the event of an emergency we’ll supply a competent photographer of equal or greater skill to ensure the event goes off without a hitch. This is very important to protect you. I hope nothing bad happens to you before an event, but what would you do if you fell and broke your shooting arm? You would need to be able to have someone else cover the event for you and your studio and ensure you can still earn the income from that event. If not, the client can try to hold you in breach of contract and not pay you at all because you didn’t show up. This clause will protect you. More importantly, this clause will protect the client. Why wouldn’t they want someone there in the event of an emergency?
I had a father of the bride sitting in front of me once. He was an attorney. And he read that clause and said, “Uh uh, no way we’re signing this!” Shocked, I said, “Really? Why not?” He said, “Well, I am not going to allow you to not show up to our event and send someone else.” To which I replied, “Okay, no worries, we can cross that out, for sure. But just so I am clear, if I fall and break my arm or get in a car accident the day before your daughter’s wedding, you don’t want anyone from my team showing up?” He left that clause in and signed the contract.
Legal actions. How will you handle a legal action? Look, as much as I would like to think we’ll never screw something up, I am a realist. Things happen. However, in the event of things happening, I don’t want to be sued for every last penny I have—like our example at the beginning of the chapter. If you don’t protect yourself, you too could be looking down the barrel of the $300,000 lawsuit.
In our contract, we have a clause that places a limitation on the amount of liability. I am paraphrasing, of course, but we have it stated in our contract that in the event legal action is necessary, we cannot be sued for more than you have paid us. That is huge. So, that $300,000 lawsuit would never happen. And why should it? I don’t think any single image or group of images is worth paying for the entire event. You have to protect yourself from this kind of stuff. At most, I am on the hook for the contracted amount. That is still a lot of money, but it won’t bankrupt my business.
Let’s take it a step further. You can also have the course of action stipulated in your contract in the event of a discrepancy. Rather than going to court and incurring all those legal fees, you could stipulate that the first course of action is mediation, where you both go to a third party to play referee. This will save you a ton of legal fees and ensure you don’t get caught up in the gamesmanship of the legal system. This puts you in front of an impartial third party who will hear your case and make an informed decision on the facts. Case dismissed.
Copyright. You own the copyright plain and simple! You never give that right up, even if you’re giving the client a DVD of images. It should state clearly in your contract that you own the copyright and the reproduction rights of the images. Not only that, you need to stipulate how you can reproduce the images. You’ll want the ability to use them in magazines, self-promotions, websites, blogs, and so forth. Don’t limit yourself here. These are images you created.
It should also be stated that the client cannot reproduce these images without your approval, and that, unless specifically stated, this contract will not give them the right to use the images. You’ll create a separate copyright release form, which we’ll cover a little later in the chapter.
Exclusive photographer. This clause is very important. I have only had to refer to such a clause one time in my career, but it was useful to have in my back pocket. In our contract it clearly states that we’re the exclusive photographer at the event and that any other photographer—paid or unpaid—who interferes with our ability to perform our duties will cause the studio to cease work until they stop interfering.
I was working a wedding once and there was a family member who was a photographer on the side; he was shooting over my shoulder the entire time. Literally shooting over my shoulder. I stepped on him twice. After the first time, I politely asked him to please give me some room so I could work. Within seconds he was on top of me again. I stepped on his foot really hard—it was an accident, of course—and then went to the groom and said “Hey man, I know this is a family member, but I have now stepped on him twice. He is completely in my way and causing me to miss shots of your event. I am going to stop shooting until you can set him straight that we’re the exclusive photographer here and he has to find something else to do.”
Make it clear that you own the event. We’re never going to stop all the family members from taking pictures. That’s not my goal. My goal is to ensure we have control of the event and my clients understand that so we avoid any “friends and family” with professional gear from trying to steal our shots.
Prices. How long are the prices in the contract valid for? Can’t be forever. You need to make this clear in the contract. For us, contract prices expire 60 days after the event. This gives us wiggle room if our prices were ever to change. I don’t want a client coming back to me four years after their wedding, trying to get their contracted pricing. So, we need to be clear when pricing expires.
Governing laws. It is critical that your contract covers which state’s laws will govern the dispute. For example, let’s say I shoot a destination client in New York, but I live in and am based in Illinois. I don’t want to be sued in the state of New York. Without this clause in my contract, I can be.
If this were to happen, not only could I be sued in another state, I am 100 percent responsible for getting local representation and covering the cost of all my travel back and forth for any hearings or trial dates. Not to mention, every state has different laws. I would like to ensure the laws of my home state are in play. This holds true for all contracts listed in this chapter.
Now, of course, there are a host of other things that may or may not be in your contract. This is a great overview, but get together with an attorney and let them help you put something solid together.
Model Releases
If you’re going to work with portrait clients or models, you’ll need a release form of some sort.
This is key if you want to use any of your images for promotional purposes. Flyers, websites, blogs, Facebook, bridal shows, vendors, and so on—they all require you to have this release form available. We don’t operate without one. For our weddings, we have this release built into our contract, but for every other facet of our business, we have clients sign off on such releases so we can showcase our work and use it to generate new business.
The model release is not an overly complicated form, but it’s a very necessary one. There are forms you can purchase online; we even sell them on our website. Make the investment and ensure it’s giving you the permissions you need for your business.
A word to the wise: Be diligent about getting this form signed. It’s easy to just let it slip through the cracks. As photographers, paperwork is not our specialty, but I am telling you, if you neglect this form, it will come back to bite you. And do not rely on a verbal commitment from your client. It’s not going to hold up in court. Be sure to get this form signed and protect yourself.
Copyright Releases
This is yet another simple form that will protect both you and your client. When you give them their DVD of images, technically they do not have the right to print from them. In fact, the print lab should ask for one as a matter of policy once they see professional-looking images. The problem nowadays, of course, is that everyone is taking professional-looking images, so I don’t see anyone asking for this anymore.
Regardless, we deliver a release form with our DVDs to our clients that states what we’re allowing them to do with these images. Here is an example:
To whom it may concern,
The holder of this CD/DVD has a shared copyright release on their images giving them the right to print them for personal use only.
Please contact the studio with any questions.
Sal Cincotta
Owner | Salvatore Cincotta Photography
115 East First Street // Ofallon IL 62269 // 618.xxx.xxxx
This is what we give to our clients with our logo on the letterhead. Notice we’re sharing the copyright. I am not giving them full control over their images. Why? Because I want control over where these images end up. If they decide to send a bunch to an online wedding blog or some other commercial site, I want to ensure that the right images are going up there and that my logo is part of this posting. In addition, I don’t want to wake up one day and see my images in the middle of Times Square in New York City without my permission.
Limited Copyright Releases
Let’s say you’re doing some commercial work for an organization. You would typically not want to give them a full release on your images or your work unless that was part of the contract. The risk you run in doing that is, while you got paid a nominal fee, the image you created becomes the face of the company or their marketing for the next 20 years. Be very careful when navigating this area of your business and ensure you’re thinking about the big picture.
Here are some things to consider.
Ownership of the copyright. Who will retain ownership of the copyright? This should be clear, and in my opinion, this should be you. Don’t give up your copyright.
Grant of rights. This states clearly what rights you’re granting to the contracted party. It is not unusual to specify where and how your images can be used (marketing, TV, web, etc.).
Rights reserved to photographer. Retain your right to license these images. Because they are your images, don’t limit your ability to work with your own images.
Consideration. What is it you’re getting for sharing your copyright? Is it a flat fee or a commission? You must be clear on what you’re receiving and how that will be calculated and paid.
Termination. When does this agreement end? Be clear that this agreement can be terminated on a certain date. Why? Do you really want clients to be able to use your images forever? If not, grant them a 60- or 90-day use of the images. After that time, you can revisit these terms. So if they chose to use this image in ways you had not foreseen, you can now renegotiate your rate.
These are just some of the basics when putting together a limited copyright release.
Second Shooter Agreements
This is a point of contention for every single studio I know, regardless of whether you’re shooting weddings or any other type of event. If you’re using second shooters or contractors to assist with the job, you need to be crystal clear on what you’re providing them and what they are providing you in return. In addition, it needs to be made clear who owns the images and where and how can they be used. I have been burned by this in the past, and we won’t let this happen to us again.
I recommend getting in touch with an attorney to help you with this. I think every business runs a little differently, but the end goal is the same—to protect your business at all costs.
So what happened with me? Well, I had a wedding where I needed another shooter to help out. I hired a friend to assist and I paid him $250 for the day. He used his equipment and memory cards and did a pretty good job. Well, at the end of the night, I saw him handing out his personal business cards to the catering manager—unacceptable! I went nuts on him. And then a few weeks later, I saw images from my wedding on his website and marketing material. To make matters worse, he was using a key image I set up of the bride for his promotional material. It was a shot he didn’t set up; instead he walked behind me and grabbed a shot of it. Now, there was no reason at the time for me to think anything of it—this was my second shooter. But in hindsight, it was clear what was happening.
Today, no shooter is allowed to use our images outside of the studio. And in order to ensure that, not only do we have a contract but we have them use our equipment when necessary, as well as our memory cards!
As far as payment goes, we typically pay our shooters $25/hour as a second shooter and $50/hour as a primary shooter. They show up, shoot, and go home. No other responsibilities. That’s pretty reasonable anywhere in the country.
So what should be included in this agreement?
Event details. Location of the event, and the projected start and end times.
Scope of services. What will they be doing? An example might look like this:
The scope of services is for the Contractor to photograph and/or video the above Event. Owner may make suggestions as to how the photographs/videos will be taken; however, the Contractor is an independent contractor with the requisite experience to determine the best way and means to photograph/video the event. The Contractor shall assist and cooperate with the Owner in obtaining the desired photographs, including but not limited to specifying persons and/or scenes to be photographed. The Contractor shall not be responsible for photographs/video not taken as a result of the Owner’s failure to provide reasonable assistance or cooperation.
Fees. What will they be paid and when will it be paid? If you’re letting them use their own equipment or memory cards, then payment should not be made until you have received those images.
Additional expenses. Parking, rentals, and similar expenses. Who will own these costs in producing the event? It needs to be made clear in this contract. Will you cover mileage? Gas? Parking?
It doesn’t have to be overly complicated. Just ensure that everything is clearly defined in the agreement so all parties are 100 percent in sync regarding what to expect.
Copyright. Who owns the copyright? This is it! This is the most important piece of this whole thing. You must retain the copyright to these images. In fact, since you’ll be selling these images to the client, it’s imperative that you retain these rights.
Do you really want your client to see their images on another studio’s website? Or in an advertisement that has nothing to do with what it was created for?
Here is a sample of how the copyright section might read:
It is agreed that Owner shall own the copyright to all images created through this contract. The Owner shall have the exclusive right to make reproductions for the Owner’s portfolios, samples, self-promotions, editorial use, for display within or on the outside of the photographers’ studio, including the Internet. Contractor agrees to not copy or reproduce the images in any way without the Owner’s express written permission. Unauthorized copying or use of these images is an infringement of Federal Copyright Law and a violation of this contract. Unless specifically stated, this contract does not provide the Contractor with any ownership of or rights to use the negatives or digital image files created under this contract.
Next Steps
While there are legal sites out there, as well as available off-the-shelf forms, I highly recommend sitting down with an attorney and be sure that they understand your needs. Most legal sites offer very generic forms. As a photographer you need something a little more specialized. Look online and see if you can find sample contracts. These serve as a great starting point for your business, but are not the final step in the process.
I can’t underscore the importance of all these contracts/agreements and how they can both help and hurt your business if not done properly. Make the investment and protect yourself. Sit down and meet with an attorney, explaining your business and your concerns with each scenario. The attorney should be able to help you put a plan in place to achieve your long-term legal goals.
