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PRO-Files: Is Your Contract Killing Your Business?

PRO-Files: Is Your Contract Killing Your Business?

PRO-Files: Is Your Contract Killing Your Business?

I’ve been a full-time commercial photographer for more than 15 years. In that time, my assignment contract template has continually evolved. I started, like so many other photographers do, with a sheet of terms and conditions based on templates I had found online or that I saw other photographers using. But as much as I’ve figured out over the years what elements are most important to include, I’ve also learned what extraneous items should really be left out—and it turns out there’s a lot. I’ve finally reached the point where I’m comfortable with a straightforward paragraph of terms and conditions, largely because my clients are comfortable with it too. Sometimes when a photographer’s contract is too big and complicated it can scare off a customer.

Case in point: A longtime client reached out to me recently to ask for some assistance with a complicated contract she received from a photographer from out of town. She needed to hire a corporate photographer in her firm’s Denver office, and she’d received a troublesome quote from a talented young photographer there. While she was very confident in the photographer’s skills, and she was even okay with his (fairly high) pricing, she wasn’t going to sign off on the deal for one reason: the photographer’s complicated contract bothered her.

She reached out to ask if I would take a look at the terms and conditions and decipher the legalese that the photographer used in his contract in hopes that I could set her mind at ease so she would feel comfortable hiring him. She was confused by much of the language, and in many ways offended that this photographer would include such aggressive wording in an agreement for what should have been a fairly low-key corporate headshot session.

After declining my offer to fly to Denver and take on the assignment for a nominal fee, she sent over the contract with the explanation that this photographer—whose work she really liked—was new to the business. I checked his website and was pleasantly surprised: I’m sure he would do a fine job with the photographic aspects of this assignment, but not if he doesn’t get the job because he’s filled his contract with legalese that it’s obvious even he doesn’t fully understand. He doesn’t realize he’s about to scare off a good job, the kind of thing that’s a boon for most working photographers I know: an $8,000 day of headshots. Inspired by his verbose and overly complicated photography contract, I offer this advice—particularly to new photographers—about improving your contracts by making them shorter and much, much sweeter.

1. Don’t Write A Novel When A Short Story Will Do

The Denver photographer had one short paragraph of the assignment description followed by three pages of contractual terms. That’s crazy for a job like this. Like a resume, unless you’re producing a huge job for an ad agency or something equally complex and nuanced, there’s no reason for three pages of convoluted legal language on the vast majority of jobs. This is particularly true of corporate headshots. It should be a fairly cut-and-dry contract, without the need for a lot of paragraphs like this:

“Transfer and Assignment: Client may not assign or transfer this agreement or any rights granted under it. This agreement binds Client and inures to the benefit of Photographer, as well as their respective principals, employees, agents, and affiliates, heirs, legal representatives, successors, and assigns. Client and its principals, employees, agents, and affiliates are jointly and severally liable for the performance of all payments and other obligations hereunder. No amendment or waiver of any terms is binding unless set forth in writing and signed by the parties. However, the invoice may reflect, and Client is bound by, Client's oral authorizations for additional Images, fees and expenses that could not be confirmed in writing because of insufficient time or other practical considerations. This agreement incorporates by reference the Copyright Act of 1976, as amended. It also incorporates by reference those provisions of Article 2 of the Uniform Commercial Code that do not conflict with any specific provisions of this agreement; to the extent that any provision of this agreement may be in direct, indirect, or partial conflict with any provision of the Uniform Commercial Code, the terms of this agreement shall prevail. To the maximum extent permitted by law, the parties intend that this agreement shall not be governed by or subject to the UCITA of any state. Photographer is an independent contractor and not an employee. If photographer is deemed under any law to be an employee of Client, and if the Images are therefore considered works made for hire under the U.S. Copyright Act, Client hereby transfers the copyright to all such Images to Photographer. Client agrees to execute any documents reasonably requested by Photographer to accomplish, expedite or implement such transfer.”

2. Simplify The Math And Eliminate The Legal Jargon

This particular contract was very clearly a template that an inexperienced photographer had implemented. Finding a template is actually a great place to start, but you’ve got to be diligent and eliminate all the things that don’t pertain to the assignment at hand. In this case, the photographer included extraneous and unclear pricing that had no bearing on the particulars of the assignment. Instead of looking for ways to fill out a proposal and make it sound important, try doing what good writers do and say what you need to say as economically as possible. Why write the paragraph cited above about the U.S. Copyright Act of 1976 when the same message could be more easily and clearly communicated with something along the lines of, “No third-party licensing or license transfer is included,” and “If client orders the performance of any services herein, that acts constitutes client’s acceptance by conduct of the terms of this proposal in their entirety, whether signed by client or not.” That’s actually the longest sentence in my entire terms and conditions, and it makes up about a good chunk of the whole message. It’s still a tiny fraction of this photographer’s wordy three-page document. Using plain, simple, straightforward language is generally going to be much more favorably received by clients. In fact, this particular client would have quickly signed on the dotted line, even though the bottom line was fairly high for the request based on my experience, had the photographer not included 14 paragraphs of dense legalese.

3. Mind Your Tone; There’s No Need To Be Aggressive

I know there are a lot of people out there trying to screw photographers, but we can’t let that impact the tone we take with every potential customer. Eliminating legalese will go a long way toward making your contract less intimidating and aggressive. Paragraphs that outline what jurisdiction legal action will be adjudicated in is not a good way to set a helpful tone, particularly on a small-scale project. Don’t get me wrong: on some assignments—particularly those with licensing complexities or big budgets—a larger, more all-encompassing legal document makes perfect sense. But for new photographers, the majority of their assignments will not fit that bill. For a handful of headshots for a local firm, three complex pages is simply too much. You can make the argument that this kind of legal document is protective for the photographer, but my counter-argument is simple: at what cost? Does it protect the photographer if it scares away the client? Why plant the idea of a legal confrontation in the client’s mind on such a low-impact photo shoot? Why include a paragraph that sounds so confrontational that it will scare off the customer in the first place? Something like this just might do that:

“[10] Disputes: Except as provided in [11] below, any dispute regarding this agreement shall, at Photographer's sole discretion, either: (1) be arbitrated in Photographer's City, Photographer's State, under rules of the American Arbitration Association and the laws of Photographer's State; provided, however, that irrespective of any specific provision in the rules of the American Arbitration Association, the parties are not required to use the services of arbitrators participating in the American Arbitration Association or to pay the arbitrators in accordance with the fee schedules specified in those rules. Judgment on the arbitration award may be entered in any court having jurisdiction. Any dispute involving $5,000 or less may be submitted without arbitration to any court having jurisdiction thereof. OR (2) be adjudicated in Photographer's City, Photographer's State under the laws of the United States and/or of Photographer's State. (3) In the event of a dispute, Client shall pay all court costs, Photographer's reasonable legal fees, and expenses, and legal interest on any award or judgment in favor of Photographer. [11] Federal Jurisdiction: Client hereby expressly consents to the jurisdiction of the Federal courts with respect to claims by Photographer under the Copyright Act of 1976, as amended, including subsidiary and related claims."

4. Don’t Overreach

We photographers don’t like it when our clients ask for the moon in their contracts without ever wanting to pay for it. We should be cognizant of that fact and likewise stop the overreaching on our part. For instance, this young photographer included a paragraph outlining a cancellation policy. That’s certainly smart in principal, but demanding a 50% fee for any cancellation, whether or not it was made weeks or months prior to the scheduled shoot, seems a bit much to me. Sure, charge a fee for cancellations close to the shoot, whatever that may be for you (two weeks, 30 days, 72 hours, etcetera) but don’t include a money grab if they need to postpone next months shoot for the following week. It’s unseemly, and will again help scare off this client who is ready to buy. (A marketing director years ago told me the story of a photographer who had charged a kill fee on a job that was postponed, telling me he would never work with that photographer again. I thought it unfair, but useful knowledge nonetheless.) Demanding of a client that they will not make or permit any alterations to an image might be fine for a high-end ad shoot or if your family name is Leibovitz, but until then you’re one of a dozen others they could hire for headshots, you should maybe try not to tick them off. That doesn’t mean you shouldn’t have standards, but you should certainly understand the reality of how those images will be used and, in my opinion, make yourself easy to work with. Don’t become a doormat for your customers, but if your client wants to crop the headshot you provided from 5x7 proportions to square, should you really have a say in that? What if they decide to remove them from the background? Should that be any business of yours, or should you simply make your client’s life a little easier and maybe not bring up the whole “modifications and alterations” business in the first place? Make yourself easier to work with and clients might be a little more likely to want to work with you.

5. Eliminate Unnecessary And Irrelevant Information

The young photographer’s proposal forwarded to me included four full paragraphs of information that simply do not pertain to the assignment at hand. For instance, two long paragraphs discussed “Return and Removal of Images” as well as “Loss or Damage” relating to physical prints or transparencies—the kind of thing that would have been crucial 20 years ago but which has literally no bearing on a JPEG file delivered after a headshot session today. The photographer’s proposal went on with a paragraph outlining requirements for a photo credit with any published usage of the image. The client may simply ignore such a request, but it’s up to the photographer to understand that in many cases this type of thing is not only impractical, in many cases it is all but impossible. Corporate headshots, for instance, are the perfect example. If you’d like to ask for a credit, feel free to request one, but demanding a credit is a practical impossibility on an image destined by its very nature to be handed out for republishing by third parties. This virtual game of telephone makes demanding a credit downright unreasonable. In some cases, this duplicate information directly contradicts or, just as problematic, potentially contradicts other information outlined elsewhere in the contract. This is again why simplification is the best policy. State your terms clearly and only state them once. Short and sweet really can cover your bases for many jobs. Here’s a typical terms paragraph included with my most straightforward assignments: “Finished image files will be delivered within seven (7) business days of their selection. Requests for rush service will incur additional fees. Usage license is granted by photographer to client herein named. No third-party usage or re-licensing is included. Usage rights granted include all media in any size and print run in North America, except paid advertising. Usage term is non-exclusive and for a period of five years from the date of delivery to the client. If client or its designees orders the performance of any services required to complete the above services, that act constitutes client’s acceptance by conduct of the terms of this proposal in their entirety, whether signed by client or not. License is granted only upon receipt of payment in full. Invoices are payable within 30 days of receipt. Cancellations within seven (7) days of session will be charged 50% of the creative fee plus reimbursement for expenses incurred; cancellations within 24 hours will be charged 100% of creative fees plus expenses incurred.”

You don’t have to be a pushover when it comes to writing terms and licensing images, but you don’t need to pretend to be a lawyer, either. Make your contracts simple and straightforward and you may land a higher percentage of the jobs you propose simply because your customers are more comfortable with you.

About the author:

William Sawalich made his first darkroom print at age ten. He earned a Master's Degree from The Brooks Institute of Photography in Santa Barbara, California. Along with portraiture, still life and assignment photography, Sawalich is an avid writer. He has written hundreds of equipment reviews, how-to articles and profiles of world-class photographers. He heads up the photo department at Barlow Productions in St. Louis.

 

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