Despite being a lawyer for 10 years in California and a former professor of Business Law at UCSD, I only recently started using contracts in my client portrait work. Here are the reasons why I wish I used them sooner and how they could benefit your business.
The Purpose of a Photography Contract
I see so many posts in my Facebook groups where people make gross misstatements of the law. One of the most common misunderstandings that I see is “Oh, well I’ll just sue that person/let them sue me because the law in my state X and I’ll just win.” Here is the biggest secret in litigation: As soon as anyone sues anyone, you’ve both lost. Litigation is time-consuming, stressful, and expensive. One of the best ways to avoid being sued or to at least minimize the effect of being sued is to have a contract that makes expectations and obligations of both the model and the photographer clear before either commits to any work.
Contracts Put Your Clients at Ease
The main reason I never used contracts in my business was that I didn’t want to scare my clients with a big legal document before something that was supposed to be enjoyable like a photoshoot. The truth is that even Disneyland has terms and conditions you have to accept before going to the happiest place on earth. For many portrait photographers, if you are not working with agency models at your shoot, you are probably working with people who do not have a lot of modeling experience and don’t know what to expect. Giving them a document that explains things in writing actually helps a lot of clients feel at ease. It’s why the first day of school is the worst — because you don’t really know what to expect and you can’t be at ease. Having people be less tense is very important in portrait photography.
Using Contracts Makes You Seem Like a Real Business
Real businesses use contracts. Imagine going to the dentist for the first time because you have a toothache and they give you no paperwork and just say: “Don’t worry, we do teeth stuff all the time. You don’t need any paperwork.” How would you feel about that business? Using a contract is one of the things that separates a professional photographer from a person who just owns a camera. As a pro tip, if your state allows electronic signatures, use something like Adobe e-sign or DocuSign that lets you send contracts to people’s email or their phones and lets them sign the contract electronically. That makes it easier to get a signature before the shoot and lets both sides keep a digital copy of the signed contract for future reference. Efficiency gives off an aura of professionalism.
You Need a Contract Even If You Are a Customer Service Driven Person
I’ve seen a lot of people post that they don’t need a contract because if a problem comes up or if a client is unhappy, they’ll just fix it because they love their clients and strive for excellence. The problem with this approach is that you have an unhappy client to begin with. Most client problems that I’ve seen come from misunderstandings and failed expectations. Fixing unhappy client situations is great, but having clients who don’t get upset because they have a better understanding of expectations is much better.
What to Include in Your Contract
I don’t want to get too specific into verbiage and what should be in your contract because it could vary from state to state and specific genre to genre, but here are some ideas for some topics to cover:
- Payment: When is payment due? Is a deposit due? Is it refundable? Is any part of any payment refundable? Is payment contingent on the client liking the photos?
- Rescheduling, cancellations, and late arrivals: What happens if a client reschedules a month before the shoot or the day of the shoot? What if you have to reschedule? What if it is an outdoor shoot and it’s raining? If a client reschedules a year out, do they get your 2021 rates or your 2022 rates?
- Delivery of photos: How many photos are they getting? What is the format? Are they going to pick the photos or are you? Are they getting a Dropbox link or a thumb drive? What is the resolution of the photos? If the client is planning on printing large wall art and you give them an Instagram crop and resolution, who is going to pay for the reprint of the pixelated giant poster? Do you give out raws?
- Turnaround time: When can they expect to get the product?
- Editing: How many rounds of edits do they get? What if they come to the shoot with no makeup because it’s faster and cheaper for them if you just add it in post to every photo? What if they want you to clone out all of the other people at the beach to make it look more remote and tropical? Are they allowed to edit the photos after you have edited them?
- Commercial use: Can they use the pictures for commercial use after or just personal use? Can you use them in your portfolio?
The Best Way to Send Contracts to Clients
You should definitely send your contracts to clients well in advance of the shoot, especially if any deposit is due or payment has been discussed. I do this by letting clients know at our initial point of contact that I have a document that outlines all of the details of the shoot so that we can have a smooth shoot day. I'll email it to them as soon as I can for them to read. If you ambush someone at the shoot with a big legal document, you'll usually just create confusion and anxiety.
If you have any questions about contracts, let me know in the comments and I’ll try to address them.
Weird Analogy. One is an inevitable part of a life-saving service. The other, not even remotely as important. Your analogy may read like "Be thankful you're photographed and don't complain about that stray hair I couldn't remove."
Note: I'm not taking a stand for or against withholding payment based on service satisfaction. Just that such analogies don't help photographers at all.
Not necessarily true at all. In fact, often the opposite.
The client can do whatever you let them do under the terms of the contract.
Don't bet your livelihood on a distinction in the courtroom between the words "deposit" and "retainer." In most cases, barring uncontrollable circumstances like acts of God and force majeure instances, the court will be interested in whether you've construed the contract to unfairly gain "money for nothing."
Your best protection is to be able to demonstrate that you have either reasonably lost work because of the time reserved (say, a calendar that was otherwise chock full except for that date) or actually performed some pre-session service in your client's favor, so you're not claiming money for nothing.