Business of Photography: What Should Be In Your Photography Contract

As I have mentioned in previous posts, if you intend to start a photography business, you should always enter into a contract with your client. Contracts protect both you and your client by ensuring both parties understand their rights and obligations. However, unless you were an attorney or regularly reviewed contracts prior to starting your photography business, you probably do not know the type of information that should be in your contract. Generally, every contract contains the same basic information and your standard contract should incorporate this basic information, as well as, a few additional provisions that ensure adequate protection of your intellectual property.

Your photography contract should contain the following pieces of information:

• Name and Address of the Parties
• Effective Date and Term
• Description of Services
• Fees
• Cancellation and Rescheduling Policy
• Provision Protecting Work Product
• Confidentiality Provision
• Indemnification Section
• Default and Remedies Section
• Section Containing the Appropriate Miscellaneous Provisions (e.g. amendment, assignment, governing law, notice, severability, counterparts, and entire contract)

Your contract might also include various optional provisions such as a force majeure and/or arbitration clause.

Name and Address of the Parties

This is pretty self-explanatory. Your contract should begin with a paragraph naming both of the parties and stating each party's address.

Effective Date and Term

Again, this is relatively self-explanatory. Your contract should contain a provision outlining the length of the contract. It should begin by stating the effective date of the contract and the day the contract will terminate. Generally, the day I send the contract to the client is the effective date and my contracts terminate upon completion of the photography services. I indicate when I consider the photography services complete in the description of services section of the contract.

Description of Services 

This is the section where you will describe the services you will perform and outline how you intend to perform those services for your client. I begin my contract by stating whether the client has engaged me exclusively and then continue by explaining exactly what I have been hired to photograph, the date of the event and the length of time I am expected to be present at the event. I also state when I consider our photography services completed. Under my contract, photography services are deemed completed (and the agreement terminates) upon the later of the delivery of the images or, in the event of cancellation or default, upon receipt of full and final payment.

Additionally, in this section I also include a paragraph on how the services will be performed. Specifically, I agree to complete the services in accordance with the client's request, deliver images within a certain time-frame and explain that the images will be delivered via an online gallery. I also indicate that the client is responsible for cooperating with me in performing the services and that I will not be responsible for any images that are not taken due to the client's failure to cooperate or provide reasonable assistance.

Fees 

This is another section that should be pretty straightforward. In this section, I outline my fees and detail the payment methods that I accept. For some services I require a retainer and, as such, I might include a paragraph outlining the amount of the retainer and when the retainer is due. I also clearly state that no images will be delivered to the client until I have been paid in full.

Cancellation and Rescheduling Policy 

It is important to include a provision outlining your cancellation and rescheduling policy, as well. Things can happen so you should require clients to provide notice if they intend to cancel a session. And, if the client does not provide that notice, it is not unusual to require the client pay the remaining balance due under the contract if the client fails to provide adequate notice. You should also include a sentence or two on your right to cancel and how you will make that right with your client.

Provision Protecting Work Product 

This is one of the most important provisions in your contract as it guarantees that you continue to own all of the images you take during the event. The language in this provision may overlap some of the language found in your print release. That is alright because you are protecting your creative genius. This provision should state that you continue to retain the copyright to any images that you take for the client and that the client cannot use the images in a manner that you disapprove of. 

Confidentiality Provision 

This is another section that is pretty straightforward. Basically, you should include language that the client cannot use for his or her personal benefit, divulge, disclose or communicate any information that is proprietary to you, as the photographer. Usually, these provisions remain in effect even after termination of the contract and a sentence to that effect is included in the agreement.

Indemnification Section

While some people may not include this section, I prefer to always incorporate an indemnification provision in any contract. In this section, I require that the client indemnify me for any claims, losses or expenses that might be asserted against me, as the photographer, as a result of any acts or omissions by the client. I also mandate that the client cannot hold me responsible for any accident or injury that might occur on the date of the photography event.

Default and Remedies Section

Under the default section you should list any occurrences that constitute a material default of your photography contract. For example, in my contract, failure to make a required payment when due or the insolvency or bankruptcy of the client constitutes a material default. If a client commits a material default, then I have the right to, among other things, terminate the contract and request payment of any remaining balance.

Appropriate Miscellaneous Provisions (e.g. amendment, assignment, governing law, notice, severability, counterparts, and entire contract)

Every contract should contain certain miscellaneous provisions. These provisions should always be included in your contract so do not omit them. You should include language on when and how the contract may be amended by the parties and whether the client can assign the contract to another party. 

Additionally, you should state the law that governs the contract. My contract is governed by the laws of Missouri because my business is organized in Missouri. You should also include language on how the parties should contact each other (or give notice) in the event of a problem or concern. 

In addition, you should also include language on severability, counterparts and entire contract. Severability ensures that if a portion of your contract is held invalid by a court, the rest of the contract continues to be valid. So, for example, if you and your client have a dispute and the court decides your remedies section is invalid, as long as severability language is in your contract, then the rest of your contract will remain in effect. 

The counterpart language ensures that your contract is considered in effect even if you and your client do not sign on the same piece of paper or exchange signatures via PDF or fax. In other words, if you send a signed version of the contract to the client and your client emails a signed copy back to you, then the client cannot later claim that the contract was invalid because both parties did not provide an original signature. 

Last, but not least, the entire contract language ensures that only the terms outlined in your contract (and maybe even your print release) are the only terms governing the arrangement between the parties. Therefore, in the event the client makes a request prior to signing the contract and that request is not included in the contract, your client cannot later claim you failed to fulfill your obligations by not performing that request. Since the contract outlines each party's rights and obligations, both you and your client will only be required to fulfill the obligations outlined in the contract. My contract states that the terms and conditions in both the contract AND the print release constitute the entire agreement with the parties.

Optional Clauses: Force Majeure and Arbitration

Now, there are many clauses that you can choose to include in your photography contract in addition to the provisions I have listed above. However, for my contract, I have also chosen to include a provision on force majeure and arbitration. 

A force majeure provision basically states that neither party will be responsible for failing to perform his or her obligations if that party is prevented from performing because of an act of God or other natural or national disaster. Your contract should then list out the circumstances that would qualify as an event of "force majeure." In most contracts, a force majeure event includes, among other things, an act of God, fire, explosion, vandalism, riots, national emergencies, wars, strikes, lock outs and natural disasters.  A force majeure event does not include any act or omission that is within the reasonable control of a party or that could have been prevented by exercising reasonable diligence.

The arbitration provision in my contract basically states that any and all disputes arising out of the contract must be resolved via binding arbitration. It specifies where the arbitration must take place and how the arbitrator will be selected.

Conclusion

 At the end of each contract, right before the signature lines, I include a sentence stating that the contract has been duly executed and delivered by both parties and is effective as of the date set forth on the first page. I then leave space for both parties to sign.

So, I hope you have found this information to be helpful. As usual, you should consult an attorney for your specific circumstances. However, I hope that after reading this article you have a better understanding of the type of information you should include in your photography contract and why that information should be included in your contract. Happy Photographing!

Disclaimer: This article is for general information purposes only. While I am an attorney, I am not your attorney. Nothing in this article should be or is intended to be taken as legal advice. You should consult an attorney for advice regarding your individual situation. Contacting me in any capacity, including via the comments section, does not create an attorney-client relationship. The receipt or viewing of this information is not intended to create any attorney-client relationship.