Are oral agreements for second shooters legit?

Do you make oral agreements for second shooters? Second shooters can be of great help to event photographers, particularly wedding photographers; they can help you capture parts of the event that you just wouldn’t get to otherwise. They are also the place many photographers begin if they are interested in specializing in wedding or event photography – especially when they are trying to build their portfolio.

This is not an article about how to take advantage of your second shooter! There are many ways to approach an agreement with a second shooter – whether oral or in writing. Sometimes a photographer and a second shooter will agree that the primary photographer will be transferred copyright, while the second shooter will still have permission to use the images they captured (or the later edited versions of their images) for promotional purposes. There may be a requirement for a specific credit (Taken as a second shooter for “ABC Photography.”)

But, what if you haven’t gotten around to organizing a written contract between you and your second shooter, or you are the second shooter and you don’t have a written contract with them for a wedding you have already done?

 

First: get on that written contract as a priority!

Written contracts can protect all those involved and make sure there is transparency and clarity in the business relationship, even if no money is changing hands.

 

But what if there is no written contract? What if you came to an oral agreement?

Firstly, it is important to understand that oral agreements (also known as verbal contracts) can be enforceable. Did your oral agreement create a contract. There are three things required for a contract, even an implied one – which is what an oral agreement can be:

  1. An offer
  2. An acceptance of the offer
  3. Consideration

Was there a discussion that involved something like? “Can you second shoot this EVENT on XXX day for $XXX?” Consideration can also take the form of something other than money.

While there is a basic premise that the photographer who captures the image owns the copyright on those images, an oral agreement may mean that you have given a license or transferred copyright to the primary photographer.

 

Let’s not gloss over something really important in that previous sentence: the photographer who captures the image – composes, focuses, clicks the shutter button – owns the copyright over the images.

That copyright is owned by the person who captures the image is sometimes a counter intuitive idea to those who approach this from the mindset that all that which is produced by someone working for you is owned by the business owner. You might be concerned about the way a second shooter might use those images, or edit those images, if they will reflect on your brand negatively, or devalue your own images. You may also be concerned that because a second shooter owns the copyright on these images they may also limit or prevent you and your business from using them in advertising, marketing or for any other purpose other than passing them onto the client. This is notwithstanding that the clients of the primary photographer may be able to limit the use of the images by the second shooter on the grounds that they don’t give permission for their likeness to be used to promote the work of the second shooter.  These are the kind of matters that both parties often have very different perspectives upon and which can be the source of later disagreement. For example, it is quite common for the primary photographer and the second shooter to have an oral agreement that limits the second shooter using their images on their website, or not doing so for a period time, or that requires the second shooter to credit the hiring studio in any use.

 

So, what if you’ve agreed verbally that the second shooter will assign you copyright in exchange for mentoring and gaining experience?

Leaving aside that any rights or licensing assignment should be in writing, be aware that you will still likely be asked to show evidence of such a verbal agreement – like contemporaneous notes, or emails. Without a written agreement, it is likely that a primary photographer will not be able to enforce placing any limits on the use of images taken by a second shooter – or where they publish or use them.

Copyright is not the only reason why a written contract is preferable to an oral agreement. Matters like what gear a second shooter is expected to bring to the event, when and where images will be handed over (and who provides the memory cards on which the images will be stored), what expenses (if any) the second shooter will be reimbursed for – like parking, meals, and travel, who is responsible if the second shooter or their gear (or you or yours) is damaged or injured during an event, and will they be covered by your liability insurance? These are just some of the aspects of a second shooter arrangement that an oral agreement may not touch upon but that may be important for the protection of your business.

 

Seek out solutions that are win-win

What if you are the primary photographer and the second shooter is now using the images in ways that are diluting your brand? or what if you’re a second shooter who wants to use images for their portfolio or website but they agreed orally that you wouldn’t?

Our general suggestion is that if there is a disagreement, reach out gently and professionally with a proposal for how you would like to resolve the situation. If you are unsure of how to proceed, seek legal advice.

 

Seriously, put your second shooter agreement in writing!

Oral agreements can be a valid contract, but a written agreement is likely to help avoid potentially costly and time-consuming issues that can arise as a result of involving a second shooter in your business.

A second shooter contract often details an agreement on a job or project basis, a “work for hire” agreement, that addresses copyright, liability, compensation and confidentiality. We have a template for a second shooter contract available for download.

For even more information about verbal contracts (also referred to as oral agreements), read this article.