Contracts

Learning goal

You will be able to explain why a contract that sets out in writing the rights and obligations of the parties in a photography job is needed, and what clauses it basically contains. You will see how to carry the quote's scope, delivery and usage rights into the contract, and how to add to them the payment schedule, the cancellation clause, what happens in a case of force majeure, the situation of the photographer being unable to do the job, people's permissions, portfolio use, how long files are kept and the limitation of liability. You will be able to explain that a contract isn't distrust of the other side, but a clarity that protects both sides. You will know that this lesson is general information, doesn't replace legal advice, and that when preparing or signing a contract you need to consult a lawyer who knows your own country's rules. You will make sure that the permission of every person who will appear in the frame and the retouching principle also appear clearly in the contract.

The question

On the evening the quote is approved, your friend breathes a sigh of relief. At the club the older member reads the two pages carefully and puts four question marks in the margin: if one day the photos end up in the hands of an agency the bakery has signed with, if the money comes late, if on the morning of the shoot someone falls ill or the bakery's shutters stay closed, if a year later the files are lost together with a computer.

Your friend looks at the pages again; next to the question marks there isn't a single written sentence. "I trust the baker," they say. The older member smiles: "I trust them too. The problem isn't trust, it's two people not remembering the same thing." Why is a contract essential? Even between two well-meaning sides, what does a written agreement protect?

Context

In the portfolio lesson you saw that the approval of both the people and the client is needed for frames to be used in promotion (Lesson 28.3). In the pricing lesson you saw that where, for how long and in which region the photos will be used changes the price (Lesson 28.5). In the previous lesson you prepared a quote that writes down the scope, delivery and terms (Lesson 28.6).

This lesson carries the quote one step further. This lesson is general information and doesn't replace legal advice; contract rules vary from country to country and by the type of work, which is why when preparing or signing a contract you need to consult a lawyer. Copyright and license types, and model and property releases, will be taken up in detail in separate lessons in a later module. Here the aim is to understand what questions a contract needs to answer and why it needs to answer them.

Simple explanation

What does a contract protect?

A contract is an agreement in which two or more parties set out in writing and approve their rights and obligations on a matter of work. A quote usually says what the job is and its price; a contract also says what happens when things don't go as planned. Trust isn't a measure here: even two well-meaning sides can remember the same conversation differently months later, the owners or employees of businesses can change, a photo may be wanted for use in a place no one thought of at the start.

A contract protects not only the photographer but the client too. The client knows what they will get in return for the price they pay, when the photos will be delivered and what they will face if the photographer can't do the job. That is why proposing a contract isn't a sign of distrust, but part of professionalism. Many photographers send the contract right after the quote is accepted, as a short document written in plain language that carries the quote as an attachment. The contract's language matters too: a clause the client doesn't understand, even if signed in good faith, can become a subject of dispute later. That is why, instead of complicated legal formulas, a plain language that explains each clause in one sentence is preferred; a lawyer adds the necessary legal wording. Instead of writing from scratch for every job, using a template prepared once with a lawyer, in which only the scope, date and price parts change for each job, also saves time.

What clauses does a contract contain?

At the start of the contract the parties, that is, the photographer and the client, are written together with their contact information. Then come the job's scope, delivery and usage rights; these are usually written by referring to the approved quote or by carrying over the quote's sentences word for word. The usage rights clause repeats the limits of use written in the quote and says clearly whether the photos can be transferred to another organization, for example an advertising agency.

A payment schedule is the clause that sets on which dates and in what stages the price will be paid, for example a portion when the date is confirmed and the rest on delivery, and what happens if payment is late. A cancellation clause sets, when one of the two sides cancels or postpones the job, how far in advance notice will be given and what happens to payments already made. A last-minute cancellation also takes into account that the photographer turned down another job for that day.

Force majeure is the job being impossible to do because of events beyond both sides' control and unforeseeable in advance, for example a severe natural disaster or an official ban; the contract says what the parties will do in such a case, whether the job will be postponed and what happens to the payments. What force majeure legally covers varies by country. In outdoor shoots, ordinary weather such as rain or a storm usually doesn't count within this scope; that is why many photographers write a separate clause for postponement due to weather and also add within how many days the new date will be set. Apart from this, what happens in a personal obstacle such as the photographer falling ill is also written: sending a reliable photographer in their place, postponing the job or refunding the payment.

Which clauses are often forgotten?

The people's permissions clause states who will ensure that the people who will appear in the frame, for example employees or customers, consent to being photographed and to the photos being used. In a bakery shoot the permission of the master and the apprentice can be obtained in writing by the bakery's owner or by the photographer; but who holds this responsibility must be written. Permission is obtained with the same care from every person, even if their ages, skin tones and jobs differ. The retouching principle shared in the quote, that is, that even though spots are cleaned up no face's color will be changed, appears in the contract too, in the same words.

The portfolio use clause says which frames from this job the photographer can use in their own promotion. The file storage clause states how long the photographer will keep the files in the archive, and whether the client can ask for a new copy after this period is up. A limitation of liability is the clause that sets how far the photographer's liability will be limited if something goes wrong, for example if a card fails and part of the photos are lost, often to the price received. Finally, it is written that any change to the contract can be made only in writing and with the approval of both sides. A copy of the signed contract stays with both sides; the photographer keeps their own copy together with the job's files and the written confirmation messages.

Visual evidence

Your friend writes the older member's four questions at the top of the paper and adds opposite each one a clause that will answer it. For the advertising agency question, they write in the usage rights clause that transferring the photos to another organization requires separate written approval and a fee. For late payment they build a payment schedule: a portion of the price when the date is confirmed, the rest on delivery, and what happens in case of delay.

For the illness and closure question they add a cancellation clause and a force majeure clause; in case of their own illness they propose postponing the job within a week and, if this isn't possible, refunding the deposit. For lost photos they write that they will keep the files in the archive for two years. In the people's permissions clause they state that they themselves will obtain the written permissions of the master and the apprentice; they also carry over the retouching principle word for word.

They show the draft to a friend who is a lawyer. The lawyer rewrites a few clauses according to local rules and adds a limitation of liability clause. The baker reads the contract, asks two questions, gets their answers and signs.

Common mistakes

Summary

A contract sets out in writing the rights and obligations of the parties in a photography job, and is a need born not of distrust but of the fact that two people may not remember the same thing; it carries the quote's scope, delivery and usage rights including transfer, and regulates the payment schedule, the cancellation clause, force majeure and the situations of the photographer being unable to do the job. Who holds people's permissions, the retouching principle, portfolio use, file storage period and limitation of liability are also written; this lesson is general information, doesn't replace legal advice, and for a contract a lawyer who knows your own country's rules should be consulted.

Mini assignment

In this assignment you will draft a contract for the quote you prepared.

1. Write five situations that can go wrong in a job: late payment, cancellation, your being unable to do the job, files being lost, photos being given to another organization.
2. Opposite each situation write a clause that will regulate it; add the usage rights and their transfer, the payment schedule and the cancellation terms in a way consistent with your quote.
3. Write the people's permissions clause: who will be in the frame, who will obtain their permissions and how; add your retouching principle with a sentence saying it doesn't change people's skin.
4. Add the portfolio use, file storage period and limitation of liability clauses. Note that you won't use your draft without showing it to a lawyer, and write three questions you will ask them.

Check yourself

• Can you explain which questions the contract answers that the quote doesn't?
• Are you sure people's permissions and the retouching principle appear clearly in the contract?
• Do you know that this lesson is general information and that you need to consult a lawyer?

Glossary

Mini quiz

1. What is the basic difference between a contract and a quote?

• A) It is shorter
• B) It also regulates what happens when things don't go as planned
• C) It doesn't include a price
• D) It protects only the photographer

2. If the client wants to give the photos to an advertising agency, which clause is decisive?

• A) Limitation of liability
• B) Force majeure
• C) The usage rights clause that includes transfer
• D) The file storage clause

3. If a shoot can't happen because of a severe natural disaster, which concept comes into play?

• A) Force majeure
• B) Portfolio use
• C) Payment schedule
• D) Revision allowance

4. In a bakery shoot, what should be written in the contract about employees' permissions?

• A) Nothing, because the employees are there anyway
• B) Only the permission of light-skinned employees
• C) Only the owner's permission is enough
• D) By whom and how each employee's permission will be obtained

Answers

1. B — A quote describes the job and the price; a contract also regulates what happens in situations such as delay, cancellation and loss.
2. C — Transferring the photos to another organization is outside the scope unless the usage rights clause clearly allows it.
3. A — Unforeseeable events beyond the parties' control are regulated by the force majeure clause.
4. D — The permission of every person who appears in the frame is needed, and who holds this responsibility must be in writing.

Summary card

• A contract isn't distrust, it's shared memory.
• Carry the quote over: scope, delivery, usage rights and their transfer.
• Payment schedule, cancellation, force majeure, your being unable to do it.
• People's permissions, retouching principle, portfolio, storage, limitation of liability.
• It's general information; consult a lawyer before signing.

Bridge to the next lesson

The contract was signed, the shoot was done and your friend edited the twelve photos. Now they are thinking about how to get them to the baker: they are too big to fit in an email, and the baker wants to open them on their phone and forward them right away to the brochure designer. They wonder at what size, in what format and how quickly they should deliver, how the baker will download the files, and what happens if they lose one two weeks later. How are photos delivered to the client? The next lesson takes up the online gallery, file sizes and delivery time.