You’ve got a ton on your plate when it comes to your photography business: you’re the designer, the marketer, the conceptualizer, and of course, the shooter, the editor, the product-deliverer. What often gets pushed to the back burner is the role of the legal planner. Many business owners feel like they just don’t have time (or the expertise, or the money) to properly plan for the legal aspects of their business.
Cue Rachel Brenke, known everywhere as TheLawTog®. She’s made it her business to advocate for photographers by offering them the tools they need to keep their businesses out of legal hot water, and today is no different. We asked Rachel to tell us about some situations where having a contract could save a photographer from facing a huge legal (and financial) headache, and she delivered!
When you’re working with friends and family, many photographers don’t want to use a contract because they feel like their friends will take care of them. It’s difficult to imagine that sweet Aunt Carol or your best pal from high school would ever do something to hurt you or your business.
But the fact is that your clients (even those that are friends or family members) “don’t know what they don’t know,” Rachel explains. “They don’t know that they don’t like your editing style, or how much you’re charging, or how many digitals you’re giving them, or how long it took for you to deliver the products.”
“I’ve seen this so many times,” Rachel says. “They end up not being friends anymore because the client posted an image without credit, or took a screenshot from a gallery. It’s quite common– something small causes some tension, and it goes downhill.” Even if the photographer is able to say, “Well, that was a learning experience for me; from now on, I’ll use a contract with everyone” and move on, it still leaves resentment behind,” Rachel explains. She’s heard of many instances where not having clear, written expectations from the beginning causes irreparable damage to a relationship. “Sometimes the friendships end, sometimes the photographer never gets paid, and sometimes it just causes so many other issues that aren’t worth it,” she says.
Having a contract for ALL clients is key, and even more so, Rachel points out, it is necessary for the photographer to enforce what’s in the contract. “It’s just as bad,” she says, “when you have a contract but don’t enforce it because you feel bad that it’s a close friend or a family member; it just leaves behind resentment and anger.”
Bartering Business Owners
Bartering with another local business? Trading headshots for a spot on the corporation’s business cards or photos of newborn props in exchange for promotion on the company’s website? Save yourself the heartache and sign a contract up front.
“A lot of times, photographers go into those sorts of business relationships and they’re scared to ask for things,” Rachel explains. “They feel like they’re imposing or they’re going to be told no. The other business, however, doesn’t know what to provide or what to do.” So, it can go one of two ways: the business can either give a lot or actually wind up giving very little. “I’ve heard it way too many times, where a photographer says, ‘Oh, I’ll take pictures, and then you promote me.’ They don’t go any further, they don’t have a contract, they don’t have anything in writing. The shop owner maybe throws a couple of business cards in the bags of their customers and that’s it. Then, the photographer feels like, ‘What?! I spent all this time and money doing these photos.’ In those situations, photographers (especially those who are really gun-shy about asking for another business to do things for them) could have just let the contract do the talking for them.”
Rachel also recommends outlining a commercial license before trading your skills and time, so that the business knows what it can do with the images you take. “Again,” Rachel states, “it’s a case of someone not knowing what they don’t know. The business will go and just use the images the way they see fit, and then the photographer gets upset. Sometimes they alter the image, or go and use it on a billboard. A contract would have eliminated all miscommunication.”
The third scenario Rachel outlines is a lot more common than you might think. She points out that many times, with weddings especially, a photographer may have a contract with the bride and groom, but then a generous family member wants to pay the bill. “In many situations,” Rachel points out, “if you sign a contract with the bride and groom, it’s only for the bride and groom. In some states, if mom pays, that may invoke some responsibilities that you, as the photographer, have to mom.”
“Let’s say you take photos at a wedding and put them in an online gallery so guests at the wedding can purchase prints. It has to be written in the contract that selling images from the event is okay, because many privacy laws don’t allow for you to sell images in that nature without a specific release. The majority of photographers don’t have that included in their contract.” When someone other than the contracted couple pays for the service, photographers must be aware that each party then has certain rights.
Model releases are another big ticket discussion for Rachel. “Most model releases are simply the client giving permission to the photographer to use the images, but they’re not giving permission for the florist, the stationery designer, the venue and all of those other vendors to use them in their businesses.” To solve this, Rachel suggests, you must have the proper commercial language in the Release. “I would be willing to bet nine out of ten photographers don’t realize that,” Rachel says wistfully.
Let Contracts Be the Bad Guy
Rachel believes that contracts are more than just legal documents. “Photographers are often afraid to tell their clients ‘no.’ Many times, they’re afraid to stand up and protect their business policies or their work. By having a contract, having it all spelled out in writing and agreed upon and signed, you can always refer to that and allow your contract to play the bad guy.”
Rachel’s line of choice when disagreement happens? Just say, “Per the contract, this is what we agreed to.” She hears from photographers that having a contract takes a huge load off of their shoulders. If something serious comes up, she adds, the contract allows a peaceful shift of the responsibility back on the clients. “To be honest,” she says, “if they had a problem with it, they should have mentioned it before they signed. Just refer back to the document. Let it be the bad guy!”
Don’t Live Without Them
Rachel’s rule of thumb is that every photographer should have a contract at every shoot. “You can shoot without a model release, but you should never shoot without a contract. So many photographers do the opposite,” she says. “They just get a model release, which is good, but they don’t have any of the policies spelled out.”
Technically, Rachel explains, a photographer can take photos, not get a model release, and simply never use the photos for marketing the studio, and that’s okay. “Because of the contract,” she says, “everything’s safeguarded, the client’s expectations have been set, and so on.” So, her advice is to use a contract at the very least, then a model release so that your studio can use the images for marketing purposes.
Rachel advocates for the use of a print release, as well. She says giving clients permission in writing for how they may use their files is incredibly important. She also has a Product Delivery Agreement on her blog (it’s free!) that she feels is crucial when a photographer is selling high-dollar items to clients. “It basically confirms that the client has looked at the products and is confirming that they were in good shape when they were handed over.” Without an agreement like that, Rachel warns that photographers can get into the “My album’s ruined!” battle when the item wasn’t ruined when you dropped it off!
Stay Away From Stuffing
Finally, Rachel wants photographers to know that while having a contract is key, “provision stuffing” can do more harm than help. “I see photographers in Facebook groups or in community meet-ups where they hear about client horror stories. Then,” Rachel says, “they go and whip up this provision, and they stick it in their contracts.”
Essentially, Rachel explains, it takes your client’s eye off the ball. Instead of paying attention to the most important details in your contract, they’re sifting through handfuls of muck that isn’t even applicable. She also warns that in court, contracts can be rendered invalid if they weigh too much in favor of protecting the photographer and don’t offer enough protection for the client. “Don’t stuff your contracts full of things you don’t need! It can hurt you in the end.”
The best way to be sure your business is covered? Have a contract and have a lawyer look it over before you use it with clients. Pay attention to special local or state stipulations that may work against you (or in your favor!) if you should ever be faced with a tough situation. And remember: protecting your business is just one of the many hats you’ll wear as a photographer!
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