General Explanation Guide
The content below is a general explanation guide for the main photography contracts - there may be variations depending on the version that you have. Please only use this for educational purposes and your understanding; this guide does not constitute legal advice.
This provision is basically about allowing you to retain the discretion of selecting the photographic materials that are released to the client. Because as you probably know, we as photographers rarely (if ever) release to the client every single image that we took during a session. And if you haven’t already, you will have clients that ask, “Can I have all the files, especially the RAW files?” No. Right here, this provision will cover you in that situation and give you a leg to stand on when you say ‘no.’ This provision also reiterates this point by stating that the client will receive a gallery of a number amount of photographs to select from and that they will not receive any photographic materials not presented to the client. (And the amount of images is completely up to you and whatever works best for your packages and collections.)
However, in certain situations, you can turn this into more customer service bonus points if you want. For example. If a client asks you “I really really like that one image, but I don’t see it here. Can you find it for me?” You can say that you’ll look for it or at least try and find it but don’t guarantee anything, etc., or something of the sort. Technically you have artistic discretion and you don’t have to do that, but it’s all about how much you want to go above and beyond for your client. Sometimes you simply may not have an image of the exact moment your client is looking for, and sometimes you may find it in your stash of RAW images from the shoot and decide to edit it and give it to them. Regardless, this provision covers you if you really don’t want to do that (or don’t have time, or you deleted the extra files that weren’t going to be presented to the client, etc.).
This provision also states that you have the right to make adjustments in post-processing as you see fit – so basically, you can edit the photo how you like and the client can’t object. It also states that if they want additional processing on top of what you’ve already done (“Can you make me look 20 lbs thinner and 10 years younger!?”) they must pay you a fee for that. And that fee will be whatever works best for you and whatever you feel compensates for your time appropriately. Or if it’s just a few images they want something small done on you can always get some more customer service bonus points and waive the fee. Totally your call! This part of the provision is just to make sure that the client knows they can’t ask for endless processing and editing, and discourages them from asking for large amounts of additional editing. (Your time is valuable – removing every single wrinkle from a client’s images may thrill your client, but there’s more than likely better things you could be doing with your time.)
This part of the provision is a little bit more detailed in the print release (if you pair it with prints for digital files), but client usage can also include photographic prints. Meaning, this provision applies to physical prints too, not just digital files.
This provision starts off by stating “The Client shall only use the photographic prints, including digital files, in accordance with the permissions within this Contract.” And this is where it explicitly says that these items (prints, digital images, etc.) are for personal use only, and cannot be submitted to contests by the client or reproduced by the client for commercial use.
This provision also states that the client can’t make, or approve anyone else to make reproductions or copies of images that were created without your express permission. ‘Third party’ generally means anyone who did not sign this contract. So if you signed this contract with a lady for a maternity session, the contract is between you and that woman and anyone else would be a third party. If, for example, the woman wanted to give permission to her husband to copy and reproduce any of the images taken, she would have to get permission from you, the photographer, before that happened because her husband would technically be a third party. And the maternity client couldn’t make reproductions either without your permission because the provision states “The client shall not make, or provide authorization to a third-party to make…” So neither a third party nor your client can make any kind of reproduction without your permission. However, this provision does state that a third party can purchase prints and/or digital files from the photographer, but that the client must give permission before that happens (just like the example of the maternity client’s husband). Otherwise, any random person could ask for prints from any session that you’ve done, whether they knew the client or not or whether or not the client knew them (and that could be kinda creepy and weird).
And finally, this provision also states that the client must act in accordance with a digital file release if it is provided. This further drives home the idea that the digital images are just as much a product as the actual physical prints and cannot be copied or reproduced or printed without the photographer’s permission or print release.
Commercial versus Private Portrait Contracts.
At this point, you’re probably wondering “well then how are my clients supposed to use the images I take of them for commercial purposes?” To start off, commercial usage is completely different than private usage, and there’s a lot more that goes into it as far as money, restrictions, and the license that you’re going to give. So if you’re looking at shooting for commercial purposes or if you’re shooting for a prop vendor or something like that, you need to be on a commercial use license or commercial use contract and not a personal use contract because the provisions of that type of contract and license are very different.
Think to yourself – “Where would I want to go to court if this were to get that far?” More than likely, this answer is going to be where your business is registered. You want to make it convenient for your business to access those courts and be subjected to the laws of where they are registered.
Copyrights & Reproductions
Keep in mind that privacy laws may require the use of a model release for any materials you choose to use as marketing materials. (This is a guideline, and not part of this Contract.)
This section is pretty important because it talks about copyright and reproductions. This is sort of touched on in the Photographic Materials section, but we’re going to get into it in greater detail here. This section starts out by stating that you, as the photographer, retain the copyright to all of the images you produce. Some of the things you would use their images for would be marketing materials, portfolio images, sample products, editorial submissions, etc. However, please note: privacy laws may require the use of a model release for any materials you choose to use as marketing materials. Just because you retain the copyright for the images doesn’t mean you can use them for your own purposes or for whatever you want – you must have a model release to do that. And you can, of course, as a business decision decide not to have your client sign a model release (for privacy reasons or any other issues the client may have or that may arise), but if you decide to do that you can not use the images for anything else or post them anywhere public, etc. Period.
The other key point to this provision is the statement “It is understood that any duplication or alteration of original images is strictly prohibited without the written permission of the Photographer.” This means that the client must receive permission from you, the photographer, if they want to duplicate or alter the images they receive from you and restricts them from doing so (in fact it states clearly that such things are strictly prohibited). This is a legal leg you can stand on again if you find that your clients are applying Instagram filters to your images, cropping them, or doing additional editing to the images after you have delivered them.
This section also states the federal US copyright law, so if you’re from a foreign country and are utilizing these as policies for your business just delete the part where it says “Copyright Law Title 17, Appendix V. Additional Provisions of the Digital Millennium Copyright Act 2005, Section 102.”
This provision also states that “Alterations include, but are not limited to, application of filters, cropping, or modifications of any kind.” This is something I’m personally not a big fan of – clients cropping digital files. And not digital files they’ve stolen off a website, but digital files they’ve actually purchased from me. However, I do understand that sometimes it’s a necessity. Like if they have a print release that allows them to print the images and they have to crop them a bit to get them to the right ratio to print them, I’m not going to get too upset about that. You just have to balance.
Now here’s something to think about – is it worth going after a client and saying “Hey, you cropped that image which is against the copyright provision!”
For little things (like cropping so they can print the image properly), probably not. It’s going to put a bad taste in the client’s mouth. However, if they’ve done some extreme editing to the images, then yeah, sure. It would make sense. Either way, this provision gives you a legal leg to stand on if you do want to call them out on it.
The final part of this provision talks about giving your client permission to resize images for internet-based usage. And this is up to you – just select the appropriate answer. If you don’t provide your clients with a web-sized image along with their full res digitals, I’d recommend allowing them to resize the images. If you do supply them with web-sized images, then it’s really up to you. And if you do give them resized images, throw a watermark on them. That’s what I generally do and I haven’t had a client have issues with the watermarked web-sized images since they’re getting full-res un-watermarked images from me because that’s what they’re paying for. I just give them the watermarked web-sized images as a courtesy and to add a little extra value to my collections and packages.
I even tell the client to use the web-sized images on the USB they’ll be receiving from me for Facebook and emailing family and friends, etc. because it’s going to be easier and quicker for them and they won’t have to wait 10 hours to upload images to Facebook or something. And they love that, and I’ve never had a client that’s had a problem with it. And for me, I’m getting a little free marketing because my watermark is on the images.
This section deals entirely with all photographic materials – from digital files and negatives to proofs, previews, and all the stuff in the online gallery and on the website.
Because of this, that means that everything you produce during the session is your exclusive property and that you have the copyrights to it. (I discuss copyrights in greater detail later in this guide, but this section just lets the client know that even if you bring proofs so a session, like physical proofs for an in-person ordering session, that those items are still yours and your property. They do not belong to the client at that time unless you offer for them to purchase it.)
You also have two different options in this provision depending how you decide to deliver your product to the client – whether by in-person viewing and ordering or by delivery of an online gallery. If you choose to deliver your product via in-person proofing and ordering session, delete the section that discusses delivering an online gallery. Similarly, if you choose to deliver your images via an online gallery, delete the section that discusses the in-person product session.
If, however, you don’t know yet what type of delivery you will offer your client you may include both the in-person provision and the online gallery provision and include the phrase “In the event the Photographer delivers the gallery via electronic medium” or “In the event the Photographer delivers the gallery via an in-person ordering consultation”.
If you do in-person sessions and allow orders to be placed after the in-person viewing and ordering consultation (which I’m a fan of because I don’t like telling people they have to do it by a specific date), consider including the following provision for ordering incentive: “The Client shall receive a ____% discount for orders placed during the in-person ordering consultation. Orders placed after the close of the in-person product consultations are subject to the Photographer’s standard price list at the time of this Contract.” And of course, this isn’t legal advice, but more marketing and customer service advice that urges them to purchase during the consultation but still leaves the option open for them to order later if they so choose. If they choose to order later though, make sure that they know they must do it within a certain amount of time otherwise you will be archiving their files.
This section states that the gallery proofs will be available to the client within a given amount of time (that you choose) after the photographic event. Fill in the blank with this time period and make sure you choose the appropriate days, weeks, or months. The next part also tells the client how long the gallery will be available for viewing online, and again, fill in the blank with whatever period of time works best for you and choose the appropriate days, weeks, or months.
This paragraph also tells the client that if they request to extend the amount of time the gallery is available or reopen the gallery after it’s been closed that there’s an un-archival fee required to do that. Now, I’ve never charged an un-archival fee, but I have that section there to help urge clients to order within the given amount of days after the gallery has been delivered to them.
And of course, as far as un-archival fees go, you can always use it as customer service bonus points and if the client asks you to un-archive the session or extend the online gallery viewing you can tell them, “You know, I’m going to go ahead and waive the un-archival fee for you, but there is one if I have to extend again.” Or you can hold them to it, it’s completely up to you and what works best for you and your client.
Use of Independent Contractor
It’s really common practice for photographers to hire an independent contractor for things like makeup and hair, especially for boudoir photographers and senior portrait photographers. And while I know that most photographers take great care in selecting their hair and makeup artists, sometimes accidents happen and your client has a bad reaction to the makeup or some other product. This provision protects you in case that happens, and also states that it is the client’s responsibility to tell the independent contractor about any allergies or issues they may have with the products or services they will be providing. That way it’s putting the responsibility on the client’s shoulders to make sure they’re being proactive in preventing something like that from happening. If they don’t tell the independent contractor about any allergies or issues they may have and they do have a negative reaction to it, this provision also covers you in that situation because it states that it is the client’s responsibility to communicate any of those issues.
And a note about hiring hair and makeup artists – make sure they are licensed and have a good, clean record with solid references. Do your research! The better job the hair and makeup artist does with your client, the better experience they’ll have with you and the more likely they’ll be to refer you to others (and be a repeat client). If you plan on doing hair and makeup in your studio (or on location), make sure you and your hair and makeup artist have the proper licensing for that also. (This will vary depending on where you live, but if, for example, your state requires you to have a specific license so that you can have hair and makeup done in your studio, you want to make sure you meet those requirements and have that permit or you could face fines and other fees.)
And don’t forget – make sure they have the contact info of the independent contractor so they can get a hold of them to make them aware of any issues.
It is also important to remember that for an independent contractor to truly be an independent contractor, you cannot treat them as an employee. There are a lot of complicated legal ramifications of this distinction, but in a nutshell, the more that you direct the contractor, the more likely they are to be considered an employee. This is why you should inform the client that they need to direct enquires concerning the services the contractor will provide to that contractor.
This provision is really important because it outlines how many days, weeks, or months that prints, albums, canvases, and other products will take to be delivered to the client from the time that the client orders them. It also informs the client that they need to allow sufficient time to allow for normal delays, and that they need to notify you, the photographer, if there’s any reason they require a quicker turnaround. Examples of reasons why they would need a quicker turnaround would be if the product(s) is for an upcoming birthday gift or any other kind of gift, for Christmas presents, etc. – the list goes on. Because this provision says that the client needs to allow time for normal delays, if they order something from you and it’s not received on time due to issues at the printer or because of shipping delays (especially around Christmas) or something else outside of your control, this provision covers you and provides protection and gives you the ability to tell your client “See, I did inform you that this could happen.”
Expedited Fees for Completion.
I do, however, leave a blank here for you to fill in with a fee amount for any expedited orders that the client requests. Just figure out what works best for you, but here are some things to take into account when coming up with your expedited fee. First, check and see if any of your product suppliers have expedited fees too – that way you can make sure your expedited fee that you charge the client will cover the expedited fee that your supplier will charge you. Second, it would also be a good idea to make sure your expedited fee includes the cost of expedited shipping. And finally, if your client wants an order expedited, you’ll more than likely have to move their order to the top of your to-do list (in front of other orders for other clients), and you may have to work later a day or two to make sure the order is met. You want to make sure your extra time is compensated for this as well.
A good idea – make your expedited fee pretty high. That way, it will urge clients to not wait until the last minute and force them to plan things out a little bit better.
This provision sort of goes along with the Cancellations provision.
If you allow rescheduling and your client wishes to do so, fill in the blank with the number of days they must inform you prior to the originally scheduled event. Make sure that it’s far enough in advance so that you can fill the originally-scheduled date and time with another client or event.
And this is just to apply to blanket rescheduling. For example: I once had a kid fall and break his arm on the way to the session. I wasn’t going to be mean and hold them to this contract because they physically couldn’t be there (they were in the hospital after all). This portion just covers how to handle regular, non-emergency reschedules. Like if their work schedule got messed up or something, they have to give you, the photographer, a certain number of days notice prior to the scheduled event to let you know that they can’t make it anymore.
This section notes that if the client arrives late to the event, the amount of time that they’re late is the amount of time that’s going to be deducted from their allotted session time. So for example, if a client gets a 1-hour time block for the session and they’re 15 minutes late, they only get 45 minutes of shooting instead of the full hour. This is really important because your time as a photographer is very valuable, and you should know approximately how much you need to make per each hour of shooting to turn a profit. If you are ready for the client at the beginning of their scheduled hour and they’re 15 minutes late and you decide to extend the session an extra 15 minutes to account for their lateness, they’re still only paying for an hour of your time but really getting an hour and 15 minutes of your time (which is 25% of your time for free!). Not good. That’s why this provision stations “Clients shall not be compensated for the time deducted from the event,” – so the client can’t complain and you’re covered if they’re late and you reduce the shooting time to reflect that.
This provision means that you have the right to substitute yourself with another photographer. You should always have a substitute in the back of your mind and make sure you’ve reached out to them and asked if they want to be your substitute should you ever need one. Not only is this good to have for the client and makes sure their session or wedding or whatever is taken care of even if you can’t be the one photographing it, but this is also a great networking opportunity with other photographers. It’s amazing, and I personally love it. This becomes especially important for the types of sessions that you can’t really reschedule, like births and weddings and military homecomings.
This provision also says that the photographer warrants the substitute photographer to be of comparable quality and professionalism, and that they are chosen at your discretion, and that doing so does not breach this contract. Now, I will always let my client know if this is going to happen (with as much advanced notice as I can though sometimes that isn’t much if it’s an emergency situation), but I don’t allow my client to have the final say in who the substitute photographer is. I retain that discretion, but for customer service purposes I’ll tell my client something like “Hey, you know, I’m not able to be there for the session – is this person okay?” or “Choose one of these three, they’re all available or your day. Which one would you prefer?” If I give them a list of photographers like this that I’ve already screened, I can guarantee that anyone showing up to do the session for me will represent my business appropriately.
If this does happen and you do need to call in a substitute photographer, all other agreements would be between you and the substitute photographer and the client. Just always make sure if you’re ever in this situation that you approach your client and say something like “Hey, I have such and such and such and such and such options for you,” instead of something like “Hey, I can’t shoot your wedding because I’m sick. Sorry.” Even though you have this clause, you always want to tell your client what you can do for them, not what you can’t. In terms of customer service, that’s always best practice.
This provision is really important because it covers cancellations. Clients may cancel for a number of reasons, and this provision covers what happens if they do. We’ll discuss later in this guide what happens if you, the photographer, must cancel, but this provision covers what happens if the client cancels, or if they need to amend the agreement and change the date or something.
This provision states that the client must inform you, the photographer, a certain amount of calendar days before the agreed upon photographic event (in other words, the session) date. The number of days that they must inform you ahead of the time that they cancel is up to you and your discretion, and whatever works best for you and your business. The contract also states that it’s up to you on whether or not you want to apply the retainer fee to an agreed upon rescheduled date. So you can either require them to pay a new, additional retainer fee to hold the date in your schedule for a rescheduled event, or you can apply the money they already paid you for the original session towards a rescheduled session. And that is totally your call.
I often let the client apply the retainer fee to another date unless they come to us right at the cutoff date for rescheduling. Then I might consider not applying the retainer to a new date. For customer service bonus points though, you can state that you don’t apply the retainer to a rescheduled date but then waive the retainer later if you so choose (sort of like a nice surprise for your client), but I recommend allowing them to apply the retainer to a new rescheduled date right from the get-go because it lends some flexibility to your clients.
This provision also states that if the client fails to show or cancels within a certain number of days from the scheduled session then they forfeit the retainer. So at that point, if they cancel after the cutoff date, the retainer is nonrefundable and should not be applied to a future session (and this is again why you want your retainer fee to at least cover your time and supplies in case they don’t show, or in case they cancel on you really close to the session date that you’ve potentially turned down other paying clients from booking).
This provision section outlines the necessity of having a retainer and payment – in other words, how you’re going to get paid and make sure that you aren’t working for free. (However, if you are shooting for free, you still need to use a contract but in this section, you would just put zero in the blank space that calls for money. In the legal world, consideration does not have to be in the form of money, so if you outline other duties in the contract, you still can have a binding contract in which all parties have obligations to perform.)
The first portion talks about a nonrefundable retainer that the client will pay to you. In our template contract, I left this amount blank for you to fill in since each photographer’s retainer fee will vary from business to business, and from photographer to photographer.
I highly recommend that you make this fee for an amount that is sufficient to cover your time in case your client doesn’t show up for the session. That way, you have at least been compensated for the time you have already put into this session – including all the marketing, the enquiry, the conversations and communications with them (email, text, phone calls, etc.), and any time you spent setting up for the session and/or driving to the shoot location.
If you do NOT use retainers yet, I highly recommend that you do so to ensure that, as stated above, your time is compensated in case your client bails.
So in the first blank space in this paragraph, put in your retainer amount – and make sure it’s enough to cover all your costs, including your time.
Another great idea – you could also make the retainer equal to the session fee. Or, if you don’t necessarily have a session fee, you could make it equal to a certain amount of print or product credit the client can use later once the session is over (as long as the amount is still enough to cover your costs and time in case your client bails). I like this particular option because it’s a subtle way of marketing, and in a way puts cash in the client’s hand that they can then use later to apply to product purchases. It pushes the client towards your products and prints without requiring them to purchase a product collection or package.
The payment section of this provision states that the payment for product orders shall be submitted within [xxxx]days of the delivery of the gallery. In other words, how soon you expect payment after you send them the gallery or do an in-person viewing session. And speaking of, this provision is also written to give you a couple options in case you’re not sure yet how you want to deliver images to your client – whether it’s by online proofing service or by an in-person viewing and ordering session. If you know you’re only going to do an online gallery viewing, you can just delete the part that talks about an in-person viewing. And similarly, if you know you’re only going to do an in-person viewing session, delete the part that talks about using an online gallery proofing service. Or, you can leave both sections in and let your clients choose which they’d rather do (though I suggest an in-person viewing and ordering session since product and print sales are usually significantly higher than just having an online proofing gallery).
Here’s another idea if your clients don’t live close by (or if it’s just more convenient in general) – send your client a link to the gallery and do the viewing and ordering session via Skype. If you choose this option I suggest using a program built for something like this (such as ShootProof) because it looks really clean and professional, and because if you decide to do in-person sales actually in person you would most likely use the same program.
Something important to note though if you’re going to do a long distance in-person viewing is to make sure that you stay on top of listening to your client – everything from what they’ve discussed previously in the in-person consultation to what they talked about during your pre-session communications and planning. This is very important because if your client talked about an album or something at some point in your previous communications, you can pull it up again during your Skype session. (And if you’re doing an actual in-person viewing session with your client, this is still important because you want to make sure you have a physical example of whatever product they mentioned before with you for the session.)
Ok, I got off on a little bit of a tangent but it does tie back in to the contract because if you’re having them order their products during either a Skype session or an in-person session, you’ll want to make sure you have the money to pay for those products in your hands in a reasonable amount of time to order and/or pay the company making the products. That way you’re not stuck footing the bill for those products until the client decides to pay for them.
If you want to make absolutely sure you have the money for the products the same day the client orders them from you, put ‘zero’ (0) in the blank for the number of days the client has to submit payment to you for product. That way they’re required to pay you the same day they order the product from you. You could also add the phrase “All payments must be made on the date scheduled for the in-person viewing session.” Boom! Done.
If you’re just sending them the gallery online and not going through it with them via Skype or anything, you can give them a few days to decide what they want to pay for. This is great, because it creates a sense of urgency for the client to purchase product from you. However, do make sure that you stay on top of the timeline and follow up with them if you haven’t heard from them.
For example: if you have it in the contract that payment for product order needs to be submitted within 14 days of the gallery delivery, make a note in your calendar or automatically set it up to email them 24-48 prior to the end of those 14 days reminding them that their gallery is about to close. (And of course it doesn’t have to be 14 days, I just chose that randomly – it can be whatever time frame you think is best suited to you and your business.)
Setting up a reminder like that is also great because it helps you stay on top of customer service.
A lot of people feel like they have to have all the money for the session and the products at one time, and may not book you because of this. It’s not that they don’t value you, it’s just that they feel they need to deliver the entire lump sum to you up front. And of course, some people will save up the money, but sometimes by the time they get the money saved your prices may have changed from the time they enquired with you to the time they finished saving and need even more time to finish saving.
Or, it’s a time-sensitive situation like a birth, newborn session, or maybe even a last-minute wedding (which is pretty common for military personnel to do before deployment) and they don’t have time to save the money.
Payment plans are a great way to alleviate these roadblocks for your clients, and I recommend them especially for higher dollar value collections and packages. To address payment plans, the contract says, “Any payment plan agreements agreed to by the Photographer and the Client shall be included as an addendum to this Contract.” Having this statement included lets the client know that a payment plan is included, and that it’s a separate contract altogether that they have to physically sign and agree to again. Plus, the payment plan agreement will have other specifications in it as well that need to be listed out in detail.
If your client doesn’t know if they want a payment plan or not when you sign the original contract but decides during the ordering session that they do want one, that’s ok. You can just present them with the payment plan agreement the day that they decide that they want one and have them sign it and then include it as an addendum to the contract. And that works because the contract states that the payment plan shall be included as an addendum if a payment plan has been agreed upon.
This provision also leaves a blank spot for you to fill in a late fee amount that will be applied to any late payments, as per the late fees outlined in the payment plan agreement. It also states that no products will be delivered until the entire amount is paid in full, and this is what I recommend so that’s why it’s included here.
Another great tip – if your client decides to do a payment plan, I recommend you wait to order any products until you have received an amount of money that at least covers the costs of the goods you will be ordering. That way if they default on the rest of the payments you’re not out the money you spent ordering the products. However, as best practice, I recommend that you wait until you receive all money and payments from the client before ordering any products (as mentioned above).
So, that’s the first provision. We’ve discussed retainers and payments, and given you an idea of why it’s important and some other great tips and ideas. If you have any other specific payment ideas that you want to be added in you may do so; however, if you decide to do that I strongly suggest referring to a lawyer in order to make sure that everything is worded right and that the language is drafted appropriately. I do not recommend self-drafting.
Standard Price List
This just basically lets people know that all the charges in this contract are based on your standard price list, that those prices change periodically, and that future orders will be charged at the prices in effect at that time when they place the order. So basically – prices are subject to change at any time.
We talk about social media a little bit in the copyright section but I cover it a little more in-depth here. This provision gives clients permission to share web or blog post links in social media albums through the use of sharing functions and “dissemination of direct links,” in other words, they can share the link to your web or blog post that has their images on it. That part doesn’t necessarily have to be in there, but I want clients to know that they can share it. I also email clients when their blog feature is ready and tell them to feel free to share. This really gets the point across to the client that you want them to share it – it’s free marketing for me every time they share it and they also get excited about their images.
This provision also states that clients shall not copy, download, screenshot, or capture the photographs in any other fashion. This informs the client that this sort of behavior is not ok and hopefully prevents them from doing it, and gives you a legal leg to stand on in case you find out that they did.
If you’d like, you can add this statement to this provision: “When uploading to a Facebook Social Media profile, the Client shall “tag” the Photographer’s business page in the album of the uploaded files.” That way it’s informing you any time they post your work online. Plus, it’s giving you some free marketing to boot because then all their friends and family and Facebook friends will see your business name any time your client posts images that you took. And this is an optional statement because Facebook is changing how it does things all the time, so you may want to think about not including this for that reason.
Social Media Requirements.
I further state in this provision that “The client shall identify” and put the copyright year and the photographer business name in the caption of all photographs when uploading to social media websites and profiles. If you embed that in your Photoshop or Lightroom, some social media sites sometimes even automatically populate that information in the caption when the image is uploaded. I’m not going to guarantee that Facebook still does that or any other social media site because they change all the time, but do know that is a possibility.
Photography & Videography
This provision basically means that the client can’t take pictures or video during the course of their session unless it’s agreed to by you, the photographer. One reason to agree to let them do this is because it’s great marketing – have them take behind-the-scenes shots during the session, upload them to Facebook and tag you and use a certain hashtag (#). Then their friends and family see that they had a session with you and get a glimpse of what things are like behind-the-scenes.
Failure to Perform
This provision covers what happens if for some reason you’re unable to perform the photographic event. It lists a whole bunch of reasons as to why this may happen, like illness, emergency, fire casualty, act of God, and so on. This provision also states, however, that you and the client will make every attempt to reschedule the session and if that isn’t possible, then you, the photographer, will return the retainer to the Client and won’t be liable for anything else. So if you can’t reschedule and you have to cancel on your client for an emergency, you have to refund them the retainer fee.
The next section of this provision states that if for some reason you’re unable to deliver the photographic materials due to technological issues (and can I get an ‘Amen’ because you know you’ve been there before) or if the photographic materials are lost or damaged for reasons outside of your control, liability is limited. So basically – if your hard drive crashes and there’s no way on earth to recover the materials, your camera malfunctions, prints are put through the mail and lost, etc. (and these are just examples, there are a plethora of things that could happen that would be out of your control), your accountability in this situation is limited.
Sometimes clients forget that as photographers, we’re human too, and we get sick. Many times though, clients don’t have an issue with rescheduling (unless it’s a wedding or a birth, in which case you would call in a substitute photographer which will be discussed further in the provision “Substitute Photographer”). Though I will say if you just have a bit of a sniffle that you still do your best to perform your duties the day of the session. I had to once when I had morning sickness and strep throat. I just told my second shooter that they had to hold me together through the wedding day and we just had to suck it up buttercup and get through the day. And we did, and to this day it’s still one of my favorite weddings that I did. I hated it during the actual day because I was so sick, and if I wanted to I could have fallen back on this provision. But of course, as I already said, I decided to go ahead with the wedding anyway.
This means that if there any ambiguities that need to be resolved relating to this contract that the ambiguities will not be interpreted against you, as the drafting party. It also states that “The contract shall be interpreted as to its fair meaning and not strictly for or against any party,” which means that interpreting this contract shall be done in such a way that is fair to everyone involved and not biased to one party or the other.
Part 1: This provision means that this Contract includes the entire understanding of both parties, and that any modifications to the contract must be in writing and approved of and signed by both parties. And having things in writing is something you should be doing in all areas of your business anyways – like using email instead of text or Facebook. Email is best, and then phone. If you do a phone call, follow it up with an email of the agreement to say, “This is what we talked about on the phone. Is this what we agreed to?” That way you have those communications on record.
Part 2: Waivers.
This provision also covers waivers and states that “Any waiver of a breach or default hereunder shall not be deemed a waiver of a subsequent breach or default of either the same provision or any other provision of this Contract.” This means that if you and your client agree to a modification of the contract one time, it doesn’t mean that that approves any and all modifications in the future automatically (even if it’s for the same type of modification). It means that each modification must be agreed upon, in writing, each time, by you and your client.
So for example. Let’s say that the gallery unarchival fee was $25, but I waive it for customer service reasons. This miscellany provision means that just because I waived a fee once that is stated in the contract that the client has to pay, doesn’t mean that the rest of the contract is invalidated (or that I have to waive the fee again if they ask for their gallery to be unarchived a second time). And this is important because it allows you to provide great customer service in some situations, but doesn’t require you to if you don’t feel it’s appropriate. So if you do decide to amend this contract in any way, do not delete this provision.
So we have a waiver of provision (like the example with the unarchival fee). An example of a waiver of breach would be if the client doesn’t pay by a certain date but you say that’s ok. Everything in the contract is still intact even though I’ve waived that particular breach of contract. (But it also means that just because I waived one late payment doesn’t mean that all future late payments are waived too.)
And the final statement in this provision is that the contract is governed by the state of _____, and I recommend filling the blank in with the state your business resides in. (If you’re in a foreign country, delete the last sentence of this provision.)
This means that if something happens to the client or their property during the photography session or immediately surrounding events (which are things like the original consultation, the proofing and ordering session, etc.), you as the photographer are not held liable.
It’s all about having multiple layers of protection: business formation, insurance, contracts, etc. Then more layers with the actions you take and provisions your contract has, including indemnification.
It’s like an onion. (If you’ve ever seen Shrek, you know where I’m going with this.) Onions have multiple layers, just like ogres, and that’s essentially what’s going on here. It’ll take anyone a few ‘layers’ of legal action around that ogre that’s going to come after you.
Just because you have a contract doesn’t mean you can’t be sued – you can, but this provision gives you legal protection by specifying that you will solve your case in arbitration rather than at a trial. And this provision discusses what happens if there is a controversy or a claim that arises out of or relating to this contract that will go to arbitration. Arbitration is much cheaper than going to court, and you can put in there that either party may refuse to arbitrate if the dispute is for a sum less than $___. And this sum is up to you and what you would consider actually going into arbitration for. (For example, you’re probably not going to go to arbitration for $20, because it’s not really worth your time.)
This provision also states that the arbitration amount will not exceed the contracted price of the controversy in dispute. So if your contracted fee is $700, the arbitration amount can’t exceed $700.
Travel and Overage Fees
This provision states that the client will pay a certain amount per mile outside of a specific zip code (which more than likely is the zip code you live in). Generally, if you’ve done your pricing correctly, your standard session fee should include wear and tear on your vehicle, fuel, and use of your time for travel up to a certain distance (say 10 miles), but this provision covers your expenses if you have to travel further than that. And the fees you charge for travel are completely up to you and what works best for your business.
The reason I have it written this way is because I’m not going to charge travel fees to someone who lives two miles down the road. But that’s just me. If you want to charge a flat travel fee, that’s fine. But my recommendation – not legal, just business – is not to have fees all over the place. It’s a hassle to track and can eat up your administrative time.