7 Things that shouldn’t be single-deciding factors in choosing a photography contract
Topic: Contracts
Time Investment: 15 Minutes
Suggested Product: All-In-One General Portrait Photography Contract Bundle
Choosing a resource, including lawyer or online site like TheLawTog®, to get your photography contracts is important. Our goal here is to elevate the industry.
Whether you purchase photography contract templates from us, or simply look at their descriptions and take to a local attorney - we are good with either.
Our largest recommendation is utilize an attorney who knows contract law, intellectual property (specifically for photographers), and has experience as a working photographer.
Here is a list of the top things to NOT use as decision making factors for selecting a contract.
#1 Price
Trust me that $7 Etsy contract isn’t worth the time you took to find and check out. We're not saying run out and spend thousands on a crappy contract but understand that the monetary investment is well worth to avoid issues later. See this article on how spending $500 on a contract can save you $10,000.
Generally speaking, a main services agreement with model release and print release are going to roughly be four to five hours worth of lawyer time to custom draft.
#2 Quantity Over Quality
You should never seek to compare the price with the quantity of pages, text, etc. Contract drafting is an art form, one that is also necessitated upon experience and not just law. You want to ensure that the contract isn't too long, but you don't want to shortcut your protection simply to have a shorter contract. Think about it, these days almost all contracts are digital and removes a lot of the "stack of papers" that you'd normally put in front of clients.
#3 Simply because it's called a contract
Anybody can write a contract. It is words on a paper. Well..that's one form of a contract...I'm not sure about it always being enforceable. Our biggest recommendation is to ensure that it is lawyer-drafted, especially by someone who has actively worked with photographers (including intellectual property law). Best case? They have been a photographer as well - so they get what you're going through in the industry with your clients.
#4 Simply because sold by a lawyer
As we've mentioned repeatedly, for good reason, is the need for this lawyer to be involved in the industry, but also that they are an active and practicing attorney. Yes, being licensed accounts for something, but in order to ensure up to date implementation of laws, there's a higher probability you'll get that from an actual, practicing attorney.
#5 The Color
Yes, I have seen it said in facebook groups - photographers have chosen a contract (especially on Etsy) based on the color of the paper. This just reminds me so much of the movie, Legally Blonde. Pink and scented. It won't matter to a judge what color it is as long as it meets the requirements of a contract. This isn't to say that contract presentation to a client and signing by the client has to be this mundane, archaic step - but don't risk your photography business on the HEX color of a paper.
#6 Free of Legalese
Whew, this is one that I always see, especially in our own TheLawTog® community. Now, yes, we get it. It can't be so above clients' heads they won't want to sign or you won't be able to enforce. Lawyers that have a pulse on this industry and have worked with clients, just as you are, understand the balance of the contract drafting art form to include easier-to-understand language while still being legally protective.
Don't give up protection simply because it makes you and/or your client uncomfortable. Ask your lawyer to reshape it.
Additionally, don't slap in words like "herein" or "therefore" on a self-drafted contract trying to make it legal. It won't.
See: Dangers of Self-Drafting Contracts
#7 Recommendations
Just because someone recommends a resource/attorney - don't just blindly listen. You need to do your own diligence into the legitimacy of the source.
- Are they licensed? -watch out for words like "certified JD" or "certified attorney" - attorneys are licensed, not certified unless it's in a specific area of law
- Actively practicing? -you can check on state bar websites for active licenses
- Know the industry? -do they truly understand how a photography business works?
- Good customer service? - are they quick to respond to questions and able to help me find what I need?
- Provide additional support? -within legal ethics or legal representation allowances?
You may have scoffed at a few of these- but these are real reasons why many photographers are choosing where to get their contracts. It's unfortunate to see so many photographers fall into these traps and then realize they aren't protected. In fact, they paid money to not-being protected and potentially be in a worse off position than if they didn't have a contract at all.
What are some MUST HAVE recommendations?
- Contract - This contract should cover all of the pertinent areas any photography business owner should have to cover themselves legally for a portrait photography session and create the relationship with the client. Includes provisions such as: retainer with liquidated damages, payment schedule, cancellation, rescheduling, late arrivals, location and travel, styling, completion schedule, use of independent contractor, photographic materials defined, artistic rights, copyright ownership, creative control, products included and additional purchases, gallery proofing, cooperation, control of subjects to be photographed, photo/video during session, failure to perform, substitute photographer, standard price list, indemnification and liability, legal miscellany (attorneys' fees, jurisdiction, venue, waiver, etc.), and notice.
- Model Release – A model release is a legal release typically signed by the subject of a photograph granting permission to publish the photograph in one form or another. This form also releases any claims the client may have to future compensation for use of images. Our download includes two model releases (general and limited).
- Print Release – The print release form is readily customizable to be included with digital file orders to outline the do’s and don'ts that the client can do with your art. This gives the client the permission to print only – does not give permissions for commercial or other uses. This does reemphasize the copyright laws.
You can review the entire free legal roadmap here.
How we are different:
- team of lawyers who have actively worked as creatives, including photographers
- work intimately with photographers on creating all our contract template forms
- contracts written on general contract principles and require very little changes
- our contracts didn't need additional language in COVID-19 hit
- featured on main industry stages such as CreativeLIVE, PPA, WPPI and more!
- consulted as expert authority in resources such as Forbes, Business Insider, International Business Times, Money mag and more!
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