What Creates a Binding Contract?
Every contract, whether it is drafted for photographers or otherwise, requires certain elements to be considered a binding and enforceable agreement. The “things” that must be present to make your photography contracts and other contract enforceable are:
- Consideration – okay, what on earth does that mean? You have to be considerate of the other party to the contract? Nope. In the law of contracts, consideration means something of value. Each party to a contract must promise consideration, something of value, to the other party, in order to have the essential Consideration element for a legally enforceable contract. For example, in a photography contract, the photographer is offering to take photographs. The person that engages the services of the photographer is offering to pay money to obtain the photographs. Presto, valid consideration is present!
- .Offer and Acceptance – this simply means that one party offers to provide something on certain terms and the other party accepts such terms.
- The parties to the contract must be competent. This means they must have the legal capacity to enter into a contract.
Clauses that You Should Have in Your Photography Contracts
Although photography contracts will vary somewhat based on the type of photography being done, there are some things that you, as the photographer, will want to have in your photography contracts. It would be wise to consult with your trusted business lawyer to make sure that the photography contracts you use fits your particular photography business. These are just some general suggestions.
- Identify the parties to the contract. This means writing out the name of the photographer. Indicate if it is a business entity or your name if there is no business entity. If you have a fictitious name, use this name. Include the address, phone number and email address for each party.
- The contract should include, with specificity, what goods the photographer will be providing. Be sure to include what consideration he or she will receive. If you are photographing a minor, make sure to have their parent or guardian sign and be the party to the contract.
- Your photography contracts should include exactly when payment is due. Is it due in full after a portrait shoot? Is there a deposit required for a wedding shoot, with the balance due upon delivery of the proofs? Make sure your contract spells this out.
- Depending upon the type of photography you do (weddings, family portraits, etc.), a clause of hours of work will vary in its importance. You should include the time that you will provide the photography services. For weddings, a firm start and end time is essential. For portraits, you can have a clause indicating the amount of time that will be spent taking the portraits.
- What will be delivered and when will it be delivered? Your contract should specify what the photographer will provide. Will there be a minimum number of proofs? Your contract should state how many “finished” photographs the will client be entitled to. Will printed images be supplied or digital images or both? If digital images are to be supplied, how will they be delivered? On a CD or via email? Include a sentence in your contract that states when the client can expect to receive their proofs. Also include a sentence about how long it will take you to deliver photographs once the client has chosen. You should address how long the client has to to order their photographs after they have received the proofs.
- In order to avoid unpleasant surprises, spell out in your contract what happens if the client cancels the shoot. Include a time frame for an acceptable cancellation time. This will vary depending upon what type of shoot you are doing.
- Late Policy – This should be similar to the Cancellation Policy.
- Copyright – Once you take the photographs, who owns the images? If you give the client the copyright, you can never use the images without the client’s permission. It is important that the photographer retain the copyright in all the photographs taken. This will allow you to use the photographs for other purposes.
- Editing or reproducing is related to ownership of the copyright. You should include a separate provision dealing with this subject. The provision should state that the client cannot use editing tools to revise a photo. Even cropping a photo is an impermissible edit. Such edits can have the effect of compromising the integrity of your artistic work.
- A Model Release is a provision that the client signs allowing you to use the photographs for your own purposes.
- While you intend to be the photographer, there may be reasons that you cannot do the photo shoot. For instance, you get sick, you get in an accident, there could be equipment failure, etc. Be sure that you have a provision that allows a substitute photographer to do the shoot in such an instance. This clause may not be as important for a portrait shoot, which may be able to be rescheduled, but you should include it anyway. The failure to have this clause could subject you to a huge amount of liability.
These are some of the provisions you will want in your standard photography contract. Seek out your trusted business attorney and have them review or draft the contract for you to make sure you are protected from every angle!