What You Need in a Commercial Photography Contract

You know that you need to use contracts when working with private clients, for a wide variety of reasons, so you can probably imagine just how much more important contracts become when working with an agency or client-direct on a commercial photography project. 

 

Since I started doing commercial photography in 2003, I’ve viewed contracts as having two distinct purposes:

 

Purpose 1) Communication.

Purpose 2) Legal protection.

 

Contracts are extremely helpful in communicating expectations to clients, and enabling them to ask questions about things they may concerned about, which is always best to go over before the shoot and not after. Contracts outline your policies, your prices, your processes, and in a sense, provide a framework for how you generally do business. 

 

They also provide legal protection if things go south, and make your client-photographer agreements in every aspect of the project crystal clear. 

 

In the case of commercial photography, your ‘contract’ is really Terms of Use that you attach to estimates or bids that you send your client. You create the bid or estimate by including the job description, licensing information, and an itemized estimate of all fees and expenses. The Terms of Use gets attached to that estimate, and functions as your contract. Once the estimate or bid is finalized after negotiations are complete, the client then signs the estimate, which legally binds them to your contract. 

 

The following are terms you should consider including in your commercial photography contract / Terms of Use.

 

AGREEMENT

This term simply defines the participating parties, explains that there are no other agreements, creates a fixed expectation about the expenses (e.g. rates are time-limited), and how any changes to the project are managed. 

 

PAYMENT

In this term you detail your payment expectations, deadlines, late fees, sales tax, and any additional taxes or fees, as well as how payment affects the license. 

 

ADDITIONAL EXPENSES

In case a project incurs any additional expenses during the course of the work, the client should be aware of how additional expenses are going to be handled. This term details how those expenses are managed, and when payment is due.

 

RETOUCHING/POST-PROCESSING (optional)

This is a term that many commercial photographers don’t include in their contracts, but I think it’s an important one, because there is so much variance in client expectations when it comes to what they expect a photographer to do or not do with the images following a shoot. It’s a good idea to define any post-processing that you intend to do following a shoot, and also detail, to the best of your abilities, what is not included. It’s also a good idea to include your hourly retouching rate for additional work so they know what that is. 

 

WORKDAY

You define your standard workday here, as well as what overtime charges are for both you and your team. Here you can also impose limits on the maximum hours of work you will work in a day, or keep it open. (Although it occurs very rarely, photographers have been known to shoot for 14/16/18 hours or more.)

 

MODEL/PROPERTY RELEASE (optional)

Some commercial photography clients expect you to furnish model and/or property releases, some never ask, and some have their own. Some expect them from the talent agency, and some want a signed release from everyone involved (yours, the agency’s, their own.) Some could care less and never bring it up to anyone. You can decide if you want to guarantee signed releases for your clients in this term. It’s always better to be over-protected than under-protected, and you can always state that they are ‘available upon request’.

 

DELIVERABLES (optional)

This is another term that you won’t often find in commercial photographer’s contracts, but I think it’s a good idea to have because it communicates to the client what they can expect to receive in terms of files. This prevents issues with them thinking they are receiving different types of files or a different resolution of file than the one you end up delivering. Use this term to define exactly what kind of deliverables they will be receiving (300dpi TIFF files from ___ camera) and how they will be delivered. 

 

ARCHIVING 

This is another term you won’t always find in commercial photography contracts, but it prevents an awkward situation where the client purchases perpetuity rights and then returns three years later after losing some of the files, expecting you to still have them. Detail how long you will archive your client’s files, and if you provide an option to extend the archival time for an additional fee. 

 

LOSS OR DAMAGE

If the client does end up losing or damaging files once they are in their possession, this term will help you get paid for the time and money it takes to replace those files. The last thing you want to do is pay for a hard drive and overnight shipping without getting reimbursed. Define any product replacement fees you have in this term.  

 

PRODUCT REJECTION

Many a new commercial photographer has been burned by clients who decide, after the shoot, that they don’t like the photos, and then refuse to pay any balance due on fees and expenses. This term protects you from that happening, and makes it clear that unless a product rejection fee has been agreed upon in advance, the client doesn’t have the right to reject the images. It also sets the expectation that a client representative will be present at the shoot in order to approve the content being created live-time. 

 

CLIENT CONFIDENTIALITY

Another term you won’t often find, but it can instill confidence in new clients that have never worked with you before. In this term you agree not to share confidential information with anyone if it’s not absolutely necessary for the completion of the project. Most clients will have you sign an NDA, but this is nice to have in addition to an NDA, because some companies that are new to commercial photography don’t realize they need an NDA, and seeing this term on your contract can help assuage any fears they may have about their trade secrets getting out there into the public.

 

CANCELLATION FEES

This term explains how your cancellation process works, as well as any fees associated with cancellation and/or rescheduling. You can also include how you address weather-related changes, which are nobody’s fault but still put you at risk of incurring additional shoot fees if the client doesn’t understand that they will be responsible for additional fees for anything that is outside of your control.  

 

RE-SHOOT

If the client isn’t happy, or talent is cooperating, or the images don’t meet their expectations, and they request a re-shoot, you will be covered if you define in this term what your expectations are regarding re-shoots. Include what your fees are for any re-shoot days, and when those fees are due. 

 

COPYRIGHT/LICENSING

Just as you would with your private clients, with any commercial client you need to communicate your legal ownership (copyright) of your images, and make it clear that you will retain copyright on the images unless and until a transfer of copyright is drawn. It’s also a good idea to explain in this term how license renewals work, and what your expectations are of your clients when their license expires. 

 

INDEMNITY

This term is the legal meat of the contract, and indemnifies you and holds you harmless against any liabilities, claims and expenses, and makes it clear that your liability will not exceed the project total cost (fees and expenses). 

 

VARIATION

This term simply explains that there are no other versions or variations of this agreement unless they have been agreed upon by both parties in writing. 

 

ACCEPTANCE OF ESTIMATE

In this term the client agrees to the terms included and understands that they are locked in once they sign the estimate, and that any additional changes will require a signed change order. 

 

As you can see, there is a lot that goes into a commercial photography agreement, which is not surprising as commercial photography jobs can easily run into the hundreds of thousands of dollars. 

 

It’s always a very smart idea to have your business attorney help you create your contracts.

 

If you don’t have the funds to pay the $300+ per hour to pay an intellectual property attorney to spend two or three hours drafting your contract, you can save a lot of money by picking up our Commercial Photography Contracts & Releases Bundle, which contains your complete contract/terms of use, as well as the aforementioned change order, adult and minor model releases and a call sheet template.  

 

Make sure you are legally protected, and communicating professionally, the next time you work with any commercial client. It will help your projects go much more smoothly, and also build respect for you and your growing business. 

 

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