CONTRACT GUIDELINES An Informational Resource for PPA Members

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1 An Informational Resource for PPA Members

2 TABLE OF CONTENTS Introduction General Considerations Client and Session Information Location Information Description of Services General Fee Information/Payment Policy Additional Fees Refund Policy Arbitration Attorneys Fees Choices of Law Copyright Notice Exclusivity Force Majeure Indemnification Limitation of Liability and Damages Modification Severability Unacceptable Quality Specific Contract Considerations Portraiture Checklist Real Estate Checklist Sports and Events Checklist Wedding Checklist

3 Introduction Some of the best preventative work you can do as not just a photographer, but as a person of business, is to create a written contractual obligation between you and your client. This not only says to your client that you are a professional, but it also shows them that you know what you re doing and that you are proud to stand by your word. Ultimately, you don t want to be in front of a judge making a case of, he-said-she-said. Further, not all states recognize s, or verbal agreements, as enforceable contracts. In the end, you are protecting your business. Because of the protection a contract can give you, here is a guide to contracts that will hopefully help you and your business endeavors. General Considerations These considerations should all be in your contract and can be fairly standard among all contracts. Basically, this section is going to compose of information collection on your part. Also, this will be what establishes your fiduciary relationship with your client. Client Contact Information: Collect all the information you need to reach a client before, during, and after the session. It is especially important that you have a way of reaching your client the day of the event. Location Information: Make sure you know when and where you re supposed to be on the day of the shoot. Don t let them tell you one thing one day, and then change plans on you without telling you. Description of Services: Use your contract as an opportunity to gather information about your client and their photography needs. Make them write down what they want and what you will be providing in explicit detail so there is no confusion as to what they will be getting. Also, collecting information about the session is especially important if you base your prices on the nature of the event rather than a standard price list. General Fee Information/Payment Policy: Use this section of the contract to present the payment amount and other responsibilities of the client. This should include the coverage selection and outlining the payment process from the nonrefundable session fee to their final payment date. It might also include pricing information relating to the placement and delivery of orders, e.g. what time limit is there that they can order photographs from you. Additional Fees: You need to evaluate what costs are associated with delivering your services, e.g. the cost for shooting at a specific location. Use this part of your contract to let the client know there may be some extras they ll be billed for if it s outside of the services you are offering. Refund Policy: Generally, refund policies aren t considered boilerplate clauses by legal professionals. However, a refund policy for photographers is absolutely necessary. Professional photographers will be booking shoots weeks, if not months, in advanced and need to recognize that things can change between the signing of the contract and the time of the shoot for both parties. As a professional you need to decide what is going to happen in the event that reservations are cancelled by someone. Things to take into consideration include, but are not limited to, when the cancellation must be made by, what percentage of the refund will be returned, and is there any liability on you if you don t show. It should be understood that this is not a check list or a place for copy-pasting the examples into your contract. Each of these clauses can and should be tailored by each professional to their needs and even negotiated with the client. Some of these clauses can even be contradictory to each other if they are put in one contract and phrased certain ways. These examples and explanations are meant as a starting point for your personal contract. Arbitration: Maybe you want to avoid going to court altogether in the case of some legal incident. You can make this happen. An arbitration clause will allow for a cheaper legal solution when compared to the costs of lawyers and court fees. e.g., All claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration in the state of [enter your state] or another location mutually agreeable to the parties. An award of arbitration may be confirmed in a court of competent jurisdiction Attorneys Fees: One of the biggest problems we have in copyright law right now is that small claims courts do not exist. This means you are always going to need to be shelling out for legal representation. Should you have a registered image, you re already entitled to attorney fees should you win a case against a defendant. However, if you don t have a registered image, you re out of luck. Again though, this doesn t mean that you can t bind 1

4 (continued) a person to owing you legal fees in the case of infringement- if they see this clause, they might even be less likely to infringe! e.g., In any litigation, arbitration, or other proceeding by which one party either seeks to enforce its rights under this Agreement (whether in contract, tort, or both) or seeks a declaration of any rights or obligations under this Agreement, the prevailing party shall be awarded its reasonable attorney fees, and costs and expenses incurred. Choice of Law: Maybe a client changes where they live to a different state one day and begins to infringe you work. You are then left with the question of which states laws or courts are going to enforce your contract. Make this explicit in your contract so that you don t have to travel or worry about other states laws. e.g., The law of [enter your state] state shall govern, construe, and enforce all of the rights and duties of the parties arising from or relating in any way to the subject matter of this contract. Copyright Assignment: This is going to be the section that gives whatever copyrights you want, or don t want, to the client. Do you want them to have transferring powers, how do you want them to be able to license or distribute the image once you give it to them? These are all questions that should be answered upon the commission of a shoot. The next section, Copyright Notice, is going to deal directly with, and acknowledge, the rights you have as the photographer. e.g., The Photographer agrees to provide the following limited copyright license to the Client for the photographs of this event. The Photographer agrees to transfer the copyrights of images as described below to the Client. Use of these images is limited to noncommercial use and all rights granted here shall expire on 1/1/1111. Copyright Notice: Unless this is work-for-hire, you own the images. A client can still infringe on copyrights and claim innocent infringement, though. Having their name on a piece of paper that says otherwise makes this considerably unlikely. e.g., The Photographer owns the perpetual, irrevocable, non-exclusive, transferrable copyrights so that they might use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display provided services, in whole or in part, worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed, all subject to the terms of any applicable license. Exclusivity: Let your client know that you should be the only professional photographer used on this event. This is important if you re hired to cover a large event. If they want additional photographers on site, you should gather this information when discussing the session details since it might impact the price of their services. e.g., The Client acknowledges that the Photographer s business would be damaged if the Client were to seek other photographers to provide a competitive or similar service. The Exclusivity Period shall mean the period starting at and ending on. During the Exclusivity Period, the Client will not directly or indirectly, through any employee, agent, or otherwise, and will not permit any of its agents to solicit, initiate or encourage, any offers or proposals relating to the purchases of the above mentioned service. The Client agrees that during the Exclusivity Period the Client shall purchase service exclusively from the Photographer and not from another photographer or photography service. Force Majeure: also known as an Acts of God clause, this clause establishes the agreement will be suspended in the event of unforeseen disaster like an earthquake, hurricane, flood or other natural disaster. e.g., Neither Party shall be in breach of its obligation under this Agreement (other than payment obligations) or incur any liability to the other Party for any losses or damages of any nature whatsoever incurred or suffered by that other (otherwise than under any express indemnity in this Agreement) if and to the extent that it is prevented from carrying out those obligations by, or such losses or damages are cause by, a Force Majeure Event except to the extent that the relevant breach of its obligations would have occurred, or the relevant losses or damages would have arisen, even if the Force Majeure Event had not occurred. Indemnification: A hotly contested clause, even by lawyers, an indemnity clause requires that one party indemnify the other in the event that certain expenses are occurred. This nicely complements that Additional Fees section. e.g., The Client agrees to indemnify and hold harmless the photographer against loss or threatened loss or 2

5 (continued) expense by reason of the liability or potential liability of the photographer for or arising out of any claims for damages. Limitation of Liability and Damages: If something is to happen to you, or an associate of yours, you need to make sure you are covered so that your business doesn t get ruined by one small mistake. Use this section to explain contingency plans, limits of damages, or other methods of compensation for any and all mishaps in providing a service. e.g., The Client agrees, to the fullest extent permitted by law, to limit the liability of the Photographer and the Photographer s associates on the service provided for any and all claims, losses, costs, damages of any nature whatsoever or claims expenses from any cause or causes, including attorney s fees and costs and expert witness fees and costs, so that the total aggregate liability of the Photographer and all those named in association shall not exceed $, or the Photographer s total fee for services rendered on this provided service, whichever is greater. It is intended that this limitation apply to any and all liability or cause of action however alleged or arising unless otherwise prohibited by law. Modification: In some states verbal agreements are recognized as enforceable contracts. If you say something after the signing of a written contract, you don t want that to be construed as a change of contract. You want to ensure that the only way to alter your original contract with your client is to have a written novation contract with both your signatures on it. e.g. This Agreement may be supplemented, amended, or modified only by the mutual agreement of the parties. No supplement, amendment or modification of this Agreement shall be binding unless it is in writing and signed by all parties. Severability: In the instance that the state might find part of your contract unenforceable, you need to ensure that the rest of your contract is still enforceable. You don t want your entire contract thrown out just because you, or even an attorney, messed up on a few words or phrases. e.g., If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Contract is invalid, or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited. Unacceptable Quality: Photography is art and art is subjective. Thus, not everyone is going to think that a photographer is delivering them quality photography, even if it is. You need to give yourself certain rights in the instance that someone doesn t like your work. This is something that would do well in conjunction with an indemnification clause. e.g., Where services provided are not of an acceptable technical quality, making it unfit for the purpose of its specified use, then no fee or job-related costs are due to the Photographer. The Photographer has the right to rectify the defect causing the rejection within a reasonable time, having regard to the urgency of the work. If rectified, the Photographer is entitled to their fee and service related expenses but may not charge the Client an extra fee or cost for rectifying the defect. Further, if the Photographer produces services that are in the same style and structure as the Photographer s past work, by reference of the Photographer s portfolio, the Client is deemed to have accepted the Photographer s artistic interpretation. Specific Considerations Portraiture: This is the simplest of the specific considerations since you will likely have direct contact with everyone that is going to be photographed. Since you are dealing with people, you have to take into consideration people s reasonable expectation to privacy. This means that their image and person requires permission to use for certain things (namely commercial use). Do you see where this is going? You re right, model releases. If you ever intend to use these people s image or person for a commercial use, you need to have a model release somewhere in your contract. This allows for you to use the images from the shoot for your personal marketing, advertising or commercial use. Sports and Weddings: Why group these together? Because they both involve the likelihood of taking pictures of persons that you aren t going to have direct contact with but will still have some type of contract with someone. Unlike portraiture, it s unreasonable to expect a photographer to have model releases for images that might include crowds of persons. Why is it that you don t need model releases for every single person at an event, though? Well, let s have a brief lesson in privacy law to understand that. Similarly, these laws apply to the portraiture section as well. 3

6 (continued) There are four types of privacy claims that make model releases required: Intrusion upon the plaintiff s seclusion, solitude, or private affairs. This just refers to the privacy we feel we are entitled to within the privacy of our own home. For example, when I am cooking dinner in my own kitchen, I have a reasonable expectation that people will not be taking pictures of me cooking. A claim about the public disclosure of embarrassing private facts about a person. This is the legal manifestation of the intuition that we have a right to keep some facts about our life away from the public eye. A claim placing a person in a false light in the public eye. It is illegal to show true embarrassing facts about a person. If those facts are false and maybe not as embarrassing, it is still illegal. A claim of appropriation. This is the one professional photographers tend to worry about. Unlike the first three, appropriation does not protect someone s right to be left alone, but protects an individual s monetary interest in the commercial exploitation of his or her identity. Federal and State courts vary widely on what this actually means. Something that is often discussed in the pursuit of appropriation claims is the pecuniary interest or significant commercial value in their identity and the infringer engaged in commercial exploitation of that identity. This tends to be where things get murky and why it is stressed that you speak to local attorneys about how your state deals with privacy law. What appropriation claims mean for you, as a photographer, is that you need to be very careful of how you use persons images in your commercial endeavors. This, however, doesn t mean that it is impossible for you to use those images. For wedding events, the consideration is roughly the same. However, because wedding events are slightly smaller it is possible to do something slightly different than from sporting events. Instead, it might be feasible to require that the coupleto-be acquire model releases on your behalf. Again, this would be a part of your original contract and might look a little something like this. e.g., The Client agrees to obtain model releases from all event attendants which will indemnify, and hold harmless, the photographer and the studio from any, and all, losses or threatened losses, and damages arising out of the performance of this agreement. Real Estate: Much like there are laws governing the commercial use of people s image, there are laws governing the commercial use of private property. Like someone has control over their personal image because they own their body, a property owner has control over their physical property. Thus, a photographer should be wary about using images of private property for uses that are not specified in the commissioning contracted. There are remedies for this, though. First and foremost you can just not reproduce and distribute the images of private property. However, this limits photographer s portfolios, and many of our members have specialties in architecture photography. This means you have to receive a property release from the owner of the property. You might even have to get a release from the copyright owner of the building, too. Remember, copyright protects all forms of original expression, this even includes architecture. In this case, it s your responsibility to ensure that you have tracked down all persons that can legally claim ownership over the image of the property. Addendum: Privacy and property laws different from state to state. By no means does this section suggest that all states are going to function the same way. The information provided herein is the most conservative interpretation and lowest common denominator of the law as it stands now. As a professional business person, it is your responsibility to ensure accuracy and compliance with state laws! For sporting events, it s likely that the athletes and crowds have signed a model release in order to attend that event. It is your responsibility to communicate with the event sponsors to ensure what kind, if any model releases have been signed by those people. 4

7 PORTRAITURE CHECKLIST Specific Considerations Model Release You have the opportunity in a portrait setting to get a model release signed by all persons involved in the shoot. If you plan to use those images for your own commercial or advertising purposes, it is worth it to just get the written and signed model release from each person. It can just be a series of signatures at once that releases their image, but make sure all of their signatures and names are on there. A portrait shoot is small enough that it allows for this to easily happen. Don t pass up the opportunity to easily indemnify yourself from future legal claims! Client and Session Information Be sure to know what family or person you re going to be dealing with and when this is going to happen. Location Information Once you know when this is going to happen, you definitely need to know where. Is the senior portrait going to happen somewhere random in the woods? How are you going to know how to get there? Make sure you know how to contact and reach your client the day of the shoot. Description of Services You need to examine whether you are producing hard copies, replicable digitals, or post production among other things. A clear explanation of the services will help ultimately make your payment easy. These will not really change from event to event, or contract to contract. Once you ve nailed these down for yourself you pretty much have them for life. So go check out the General Contract Checklist for more information! Arbitration Attorneys Fees Choices of Law Copyright Notice Exclusivity Force Majeure Indemnification Limitation of Liability and Damages Modification Severability Unacceptable Quality General Fee Information/Payment Policy Make sure your payment is also explicit and it is clearly in conjunction with the described services. The idea behind this is to prevent your client from coming back to you and saying that they wanted, or thought they were going to get, something different. Additional Fees Perhaps an unusual consideration for a portrait contract, but that might be all the more reason to include this. You need to ask yourself whether there is anything extra or out of the ordinary that you want covered for this shoot. Refund Policy Maybe they will not like the result, or maybe you will not be able to make the shoot. Whatever the reason, you need to consider how much, if any, of the money will be returned. This policy should also concern returns of deposits before and after the shoot has taken place. 5

8 REAL ESTATE CHECKLIST Specific Considerations Property Release Real estate, property, public lands there is a lot going on here with a lot of different legal drivers trying to answer the question, do you need a model release?. Whether it s post cards or a real estate ad, make sure you know what the laws are and what you need. The quick and dirty of it though is this: If it is federal land, like a national park or monument, then it is in the public domain and you do not need a property release to use it for commercial use. The exception to this rule is if you are using a model in the shots because it could possible disrupt the surrounding environment. Otherwise, if the property is private, you need a property release for commercial use. A property release (and model release for that matter) can be written into the original contract you have with the client or separately with the property owner. How this is done will be a business choice you make on your own, just be sure to cover your bases! Client and Session Information This tends to be less important for real estate because the client usually will not be physically present during the shoot. That doesn t mean that you can go without. Just identifying them as the client is an important task since it is ultimately what dictates fiduciary relationship. Location Information This is probably the most important thing in this section. You need to know exactly what property or object you are going to be shooting. This is going to get even more specific in the next section. Refund Policy This is something that is always important. Make sure you cover your basis in case plans change, someone has to terminate the contract, the client doesn t like your work, or your data fails. These will not really change from event to event, or contract to contract. Once you ve nailed these down for yourself you pretty much have them for life. So go check out the General Contract Checklist for more information! Arbitration Attorneys Fees Choices of Law Copyright Notice Exclusivity Force Majeure Indemnification Limitation of Liability and Damages Modification Severability Unacceptable Quality Description of Services Do they want these shots angled, lighted, or textured in a specific way? Are they going to do the post production from the digital images? Discuss it thoroughly with them and outline it in this section. General Fee Information/Payment Policy In conjunction with the Description of Services, make sure your client knows what they are paying for. Additional Fees What if you are traveling to a national park for this shoot? You may want to consider travel expenses, per diems, etc. 6

9 SPORTS & EVENTS CHECKLIST Specific Considerations Model Release While a sporting event is going to have the same characteristic as a wedding in the sense that you are going to be photographing crowds of people that you don t have a specific contract with, they are legally different. This difference is the result of two things. First, that this is a public event and generally this means that persons lose their reasonable expectation of privacy to be photographed. Second, that there is likely a model release written into the athlete s contract with the league for which they are playing. As the photographer looking for commercial use here, it s your job to find out what model releases are preexisting, if at all, and what kind of terms of use ticket purchasers agree to. Sometimes, a ticket purchase will have a model release written in to the terms of use so that you can use images of crowds for commercial purpose, but you need to figure it out! Client and Session Information The client could be a variety of people in this situation. Be sure to ensure the accuracy of who the client is so that it can be easily established who the money will be coming from and who is responsible for payment. Location Information The stadium or field probably will not change much but having it in writing always helps to protect you in the long run should something unexpected occur. Description of Services Depending on whom commissions this work, what they are going to want is going to vastly change. The size of the event is also going to make things tricky in case the commissioner wants all, or some, aspects of the event covered. Take the time to have this be explicit so that your client knows exactly what they are getting. event. Anything could conceivably be charged to your client if you can get them to agree to it. It s the agreeing part that is the trick! Refund Policy Bad weather policies should come to mind immediately for sporting events. How the money find its way back to the client, if at all, needs to be considered. It could be in the form of a deposit that they paid upfront or an upfront percentage of the contract. This is your business choice; just make sure you have it in writing somewhere! Arbitration Attorneys Fees Choices of Law Copyright Notice Exclusivity Force Majeure Indemnification Limitation of Liability and Damages Modification Severability Unacceptable Quality General Fee Information/Payment Policy Be clear about what they are getting for what they paid. This often upsets clients when they think they have paid too much for the described services. Get wet signatures and be explicit, you are here to protect yourself. Additional Fees Consider whether you need admission to the event or other supplies to help you get through the duration of the 7

10 WEDDING CHECKLIST Specific Consideration Model release You re going to be operating at a venue where you ll take pictures of more than just the bride and groom. How you address taking pictures of everyone else is up to you but there are essentially three avenues. The first is that you require the bride and groom to get model releases from all of the attendants so that you might be able to use them for your own commercial purpose. The second is that you personally get model releases from everyone at the event, although, this might be a little tricky. Or third, you can decide not to use the pictures from the wedding for your own commercial use other than to sell it back to the bride and groom. Client and Session Information This is going to be about the bride and groom, obviously. The session is going to be the wedding day, most likely, but what about the timing of it all? Things to consider include when you need to be there, and which events you need to attend whether it is the reception, rehearsal dinner or something more. Location Information Make sure this doesn t change. It s always possible the church, synagogue, law office or other ceremonial location will fall through. It s also important to have the client information so that you can contact them in case something like this does happen. Description of Services You probably offer different packages in order to meet different market demands so make sure it is clear to the bride and groom what they are getting. General Fee Information/Payment Policy In conjunction with the Description of Services, make sure the bride and groom know what they are paying. Make sure your payment is also explicit and it is clearly in conjunction with the described services. The idea behind this is to prevent your client from coming back to you and saying that they wanted, or thought they were going to get, something different. Refund Policy If something goes wrong either on your end or the bride and groom s end, you need to have a way to get out of this. It s your call as to how you go about this but be careful and make sure it is specific! You re going to be the last person to deliver your service in a wedding, sometimes months down the road. Sometimes a bride and a groom might try and weasel their way out of paying you just because they don t like it, but it s might be really be because you re the last avenue that they can save money on. Be careful and be explicit. These will not really change from event to event, or contract to contract. Once you ve nailed these down for yourself you pretty much have them for life. So go check out the General Contract Checklist for more information! Arbitration Attorneys Fees Choices of Law Copyright Notice Exclusivity Force Majeure Indemnification Limitation of Liability and Damages Modification Severability Unacceptable Quality Additional Fees After the services and payment, is there anything extra or out of the ordinary you want to take into consideration? Maybe you want a plate of food, or a seat at a table somewhere for dinner. It s up to you to negotiate this out with your client. 8