Photography Business 101: Creating Your Contract

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The simple fact is you need a contract between yourself and your photography client. The only thing worse than not having a contract is having a deficient one. Where that contract comes from is every bit as important as the contract itself. All contracts are not created equal, any more than all photography businesses are the same.

When it comes to finding contracts for your photography business, there are generally three main sources: a licensed attorney, an online marketplace, or drafting one yourself. Before you even have time to wonder, our recommendation will always be a licensed attorney.

It’s no surprise that many people opt not to hire a legal professional. Online marketplaces that offer boilerplate contracts – documents with general language that can be edited to suit an individual’s preferences – are easy to find, relatively inexpensive, and can be used almost immediately. Budget conscious beginners might not understand the risks, or even the differences between these options.

There are several reasons photographers may neglect to hire an attorney and instead use boilerplate or self-drafted contracts. One reason is the perception that hiring an attorney is expensive and not worth the cost. Another reason is the belief that the use of boilerplate or self-drafted contracts is sufficient for their needs. Additionally, some photographers may not be aware of the legal complexities involved in contract drafting and may believe they can handle it themselves. Finally, some photographers may simply be unaware of the potential risks and consequences of using boilerplate or self-drafted contracts.

The simple fact is that you need a contract between yourself and your photography client. The only thing worse than not having a contract is having a deficient one. Where that contract comes from is every bit as important as the contract itself. All contracts are not created equal, any more than all photography businesses are the same.

So let’s look at contract sourcing in detail, with definitions and potential consequences of each source.

Licensed attorney
A licensed attorney is a legal professional who has been authorized to practice law and is knowledgeable about the legal system, contracts, and consumer rights and protections. Even more importantly, an attorney who specializes in intellectual property law (patents, trademarks, and copyright) understands the needs and requirements of photographers. An attorney-drafted contract will be tailored to the specific needs of the photographer and their clients, and will provide comprehensive legal protections. The potential consequence of not using an attorney-drafted contract is the contract may contain errors or omissions that could result in legal disputes or a lack of protection for the photographer or their clients.
Marketplace of boilerplate contracts
A marketplace of boilerplate contracts is a source of pre-made contracts that can be purchased and customized for specific use. However, the source of the contracts may be unknown, and the quality and legal enforceability of the contracts cannot be guaranteed. The potential consequence of using a boilerplate contract is it may not be tailored to the specific needs of the photographer and their clients, may contain errors or ambiguities, and may not provide the necessary legal protections.
Self-drafted contracts
A self-drafted contract is a contract that is created by the photographer themselves without the assistance of a legal professional. The potential consequence of using a self-drafted contract is it may contain errors or ambiguities, may lack necessary legal protections, and may be unenforceable in court.

By now you should start to see a pattern forming. To be effective, a contract must be clear, comprehensive, lawful, and enforceable. Ironically, these strengths become the points of weakness for many contracts. Continue to look for the pattern as we dive into each type of contract.

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Self-drafted contracts

Let’s back up a minute and talk first about self-drafted contracts.

A frequent comment in photography discussion groups is, “You can put anything you want into a contract. Doesn’t mean it’s enforceable.” This is usually a response to a fellow photographer who has shared some contract problem with the group. It’s a gentle way of saying they created their own problem with a self-drafted contract.

Because self-drafted contracts are contracts created without the assistance of a licensed legal professional, these are perhaps the riskiest of the three options. These can be as short and sweet or long and drawn out as you care to make them. Either way, the risk is still there. While it may be tempting to save money by drafting your own contracts, there are several risks associated with this approach, including:

1. Ambiguity: This is the opposite of the clarity we already said a contract required. Self-drafted contracts may contain ambiguous language or unclear terms, which can lead to disputes or legal challenges down the line.
2. Incompleteness: Rather than being comprehensive, self-drafted contracts may not cover all the necessary terms or provisions required to protect the interests of the parties involved. Inexperienced photographers often have no idea what potential issues they might encounter, much less cover in a contract.
3. Invalidity: Self-drafted contracts may contain provisions that are not legally enforceable or that violate laws or regulations governing the photography industry, consumer protection in general, or contract law itself.
4. Lack of protection: Self-drafted contracts may fail to adequately protect the interests of the photographer or the client, leaving one or both parties vulnerable to legal challenges or disputes.
5. Legal consequences: If a self-drafted contract is found to be invalid or unenforceable, the parties may be exposed to legal consequences, such as breach of contract claims, fines, or legal fees.

When drafting their own contracts, photographers may, whether intentionally or not, tend to favor themselves in the terms. They may assign themselves far more rights and far less responsibility, while heaping burdens on the client without remedy should things go wrong.

In the case a dispute should arise, courts may be prejudiced against a self-drafted contract that is inequitable and seems to favor the photographer as self-drafting party. This is because it may suggest the photographer had an unfair advantage in negotiating the terms of the contract. After all, how many times does the photographer have to explain parts of the contract to a client with questions? This may indicate that the other party – the client – did not fully understand the terms of the agreement and did not have an equal opportunity to negotiate for fair terms. Even worse, the contract may have included terms that are legally unenforceable or that are contrary to public policy, which can also lead to the contract being deemed invalid or unenforceable.

In general, courts may be more inclined to favor contracts that have been drafted by licensed attorneys or other legal professionals, as these contracts are more likely to be legally sound and to protect the interests of all parties involved.

Boilerplate contracts

The Internet is loaded with documents. Contracts can be found in the form of downloadable text templates, or with limited fill-in-the-blank customization. Some are free while others charge fees in a range of prices. Some of these fees may even be comparable to hiring your own attorney.

If you must go with the boilerplate option, look for templates offered by licensed attorneys on their own websites. Verify that the documents were created by a licensed attorney, and that the contracts cover issues specific to intellectual property and photography services. Generic contracts simply do not cover all the clauses pertinent to photography.

Likewise, just because a contract claims to be specifically for photographers, or “attorney-drafted”, that doesn’t mean an intellectual property attorney is selling it to you.

More and more non-attorney photography educators have added boilerplate contracts as paid resources. Some have gone so far as to claim these are the same contracts they use in their own photography business, allowing them to proudly attach the “attorney drafted” description. Just because they paid an attorney to draft a contract for themselves doesn’t mean they have the right to resell that attorney’s work. Photography educators should be the last people to willingly violate copyright law by selling the work of others without the right to do so.

Without knowing where the contracts originated, it is possible that these are a form of self-drafted contract. Photographers selling these contracts is problematic because they are not legal professionals and may not have the necessary expertise to draft a comprehensive, legally enforceable contract. In some cases, these contracts may be poorly drafted or may not be tailored to the specific needs of the photographer’s business. As a result, photographers who rely on these contracts may be at risk of legal disputes or may not be adequately protected in the event of a dispute. Additionally, these educators may be charging a premium for boilerplate contracts that may not be worth the cost, especially when compared to the cost of hiring a licensed attorney to draft a custom contract.

The problem with boilerplates in general

Buying boilerplate contracts from online marketplaces without knowing the provenance of the contracts or who prepared them can be hazardous for several reasons:

1. Quality: The quality of the contract may not be up to par, and it may not adequately cover all the necessary legal requirements for your specific situation.
2. Applicability: The contract may not be applicable to your particular industry niche or jurisdiction, and it may not be enforceable in your local courts.
3. Legal compliance: The contract may not comply with applicable laws, regulations, or ethical standards.
4. Limited customization: Boilerplate contracts may be too generic, and they may not take into account the unique needs and circumstances of your business.
5. Hidden terms and conditions: Some online marketplaces may include hidden terms and conditions that may not be apparent to the buyer/photographer. These terms may include limitations on liability, indemnification clauses, or provisions that waive certain rights. In other words, the marketplace assumes no responsibility for issues with the contracts, and the buyer should beware. You may not be getting the benefits or protections you are buying the contract for in the first place.
6. Risk of fraud: Some online marketplaces may be fraudulent or may offer counterfeit contracts. Yes, that’s a thing. Contracts that aren’t even as good as the paper they’re (not) printed on. If you don’t even understand the language and clauses yourself, you may be vulnerable to something that sounds good, so must be good. However, these mumbo-jumbo contracts may not be legally enforceable, and they may expose you to legal liability.

It is essential to exercise caution when purchasing boilerplate contracts from online marketplaces. It is important to ensure that the contracts are of high quality, are applicable to your specific situation, comply with applicable laws and regulations, and provide the necessary protections for your business.

The way to do this is to be sure you’re buying directly from a competent, licensed legal professional who understands the specifics of photography. Working with a licensed attorney to draft custom contracts tailored to your specific needs, however, still remains a safer and more effective option.

The problem with boilerplates and non-attorneys

Non-attorneys selling boilerplate contracts they may or may not have paid their own attorney to draft for their own photography business can have legal and ethical implications. Here are a few examples:

1. Unauthorized practice of law: In many jurisdictions, it is illegal for non-attorneys to offer legal advice or engage in the practice of law. If a non-attorney is selling boilerplate contracts that they drafted or had drafted for their own business, they may be engaging in the unauthorized practice of law.
2. Quality of contracts: Non-attorneys may not have the same level of legal expertise as licensed attorneys, and their contracts may not be of the same quality as contracts drafted by legal professionals. This can expose buyer/photographers to legal risks and liabilities.
3. Conflicts of interest: If a non-attorney is selling contracts they had drafted for their own photography business, there may be conflicts of interest if the seller has no right to sell what the buyer wishes to buy. They may be diverting service from their own competent attorney, and using that contract in a manner the originating attorney never intended.
4. Ethical considerations: Selling boilerplate contracts without proper legal qualifications or experience may raise ethical considerations. Non-attorneys may not have a duty to uphold ethical standards or maintain client confidentiality.

Essentially, it is not advisable to purchase contracts from non-attorneys. It is better to seek out licensed attorneys who are qualified to draft legal contracts and provide legal advice. This can help ensure the contracts are legally enforceable, meet ethical standards, and provide the necessary protections for your business. Most importantly, you know who has drafted your photography contract.

Why is it so important to know who has drafted your photography contract?

It is important to know who has drafted your photography contract because the person or entity who drafted the contract may impact its enforceability and the protections it offers. A fabulous piece of advice from my own attorney sums it up perfectly.

“The person who drafts your contract should be willing and able to stand next to you in court if you have to defend it.”

Even online marketplaces that boast a staff of legal professionals won’t provide the legal counsel you may need when questions or issues arise with your contract. As far as you’re concerned, this staff is merely a group of faceless entities who provided goods for the marketplace and then went on their merry way.

A photography contract is a legally binding agreement between the photographer and their client that outlines the terms and conditions of the photography services to be provided. The contract should be drafted in accordance with relevant laws and regulations, and tailored to the specific needs and requirements of the photographer and client. In some cases, those needs may be custom to the particular client or project, requiring adjustments that must still stay within the law and remain enforceable. Different types of photography, such as commercial or agency work, have varying terms and requirements that can become quite complex. Such contracts are most easily modified by the attorney who originally drafted the basic contract.

It’s worth repeating that if your contract is drafted by a licensed attorney who specializes in photography contracts, it is more likely to be legally enforceable, provide comprehensive protections for both parties, and be less likely to contain legal errors or ambiguities. Likewise, if the contract is drafted by an unqualified or inexperienced individual, it may not offer the necessary protections, contain errors or ambiguities, or even be unenforceable.

So it’s important to know who has drafted your photography contract and to ensure it is drafted by a qualified professional. This can help to protect both you and your clients, ensure the terms of the agreement are clear and legally enforceable, and minimize the risk of disputes or legal issues arising from the contract.

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And finally, contracts drafted by a known competent attorney

Up until now, we’ve talked about attorney drafted contracts as an alternative to self-drafted and marketplace contracts. It has been impossible to discuss these other sources without a comparison to a contract created by a competent licensed attorney that you know to be the true source of your contract.

By now, you should understand the shortcomings of self-drafted and marketplace purchased contracts. So let’s also be clear on the advantages of contracts that have been drafted, or at least reviewed by, a licensed attorney.

Why should photography contracts for services always be drafted by a competent legal professional?

Photography contracts are legal documents that govern the relationship between a photographer and their clients. These contracts should always be drafted by a competent legal professional because they are complex legal documents that require expertise in contract law and specific knowledge of the photography industry.

The contract you get from an attorney helps you in very specific ways.

1. Protects the photographer’s interests: A well-drafted contract can help protect your interests by clearly outlining the scope of services, fees, and any limitations or restrictions on the use of the photographs.
2. Reduces liability: A properly drafted contract can help limit your liability in case of any disputes or legal issues that may arise.
3. Enforceable: Contracts drafted by legal professionals are more likely to be enforceable in court in case of a dispute, as they are based on sound legal principles and legal precedent.
4. Customizable: A competent legal professional can help tailor the contract to the specific needs of both your business and the project, ensuring that all relevant details are included and that the contract accurately reflects the agreement between you and your client.
5. Professional image: A well-drafted contract can enhance your professional image by demonstrating you take your business seriously and are committed to providing high-quality services to your clients.

The bottom line is that working with an attorney to draft a photography contract can help protect your interests, reduce liability, and ensure the contract accurately reflects the agreement between the parties. The advice of a legal professional familiar with intellectual property law is added protection. Such a contract is not only concerned for the work you do currently, but for any compensation you are entitled to in future. Photography isn’t simply about the service you perform, it’s also about the value and control of the product you produce. Your photos continue to have variable value throughout their existence.

So what’s really cheaper?

It is often said that it is cheaper to pay an attorney to draft legally enforceable contracts than to pay an attorney to represent you or straighten out the mess a self-drafted contract can create. This is because legal disputes can be very costly, time-consuming, and stressful for all parties involved.

If a self-drafted contract is found to be invalid or unenforceable, or if it fails to adequately protect the interests of one or both parties, legal action may be necessary to resolve the dispute. This can result in costly legal fees, fines, and damages, as well as lost time and productivity.

On the other hand, hiring an attorney to draft legally enforceable contracts can help prevent legal disputes and costly mistakes down the line. A well-drafted contract can accurately reflect the agreement between the parties, anticipate and address potential issues, and provide adequate protection for both parties.

While it may seem like an additional expense to hire an attorney to draft a contract, the cost is generally much lower than the cost of legal representation or the cost of fixing a legal mess. By investing in a well-drafted contract upfront, you can avoid costly legal disputes and protect your interests in the long run.

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Summing it all up…

Photography contracts should be drafted by competent legal professionals to ensure they are legally enforceable, comprehensive, and tailored to the specific needs of the photographer and their clients. Self-drafted contracts or those purchased from online marketplaces of dubious legal and ethical sources may contain errors or ambiguities, lack necessary protections, and be unenforceable in court.

Using a legally sound photography contract is essential to protecting both you and your clients and minimizing the risk of disputes or legal issues arising from the contract. It is important to avoid using boilerplate contracts from unqualified or inexperienced individuals. Contracts should come from a licensed attorney who specializes in photography contracts.

And finally, if you’ve been using a contract that’s self-drafted or purchased from a marketplace, don’t despair. Many attorneys will also review your existing contract, and make modifications necessary for your unique situation and local jurisdiction. Your contract is one of the most important documents in your business. It provides guidance, terms and protections, but it also provides something just as important – peace of mind. You can’t put a price tag on that.