Advice - Photography / Contracts and paperwork
Contracts are best in writing. Oral agreements are in theory legally binding: but can be difficult to enforce in court - it comes down to your word against theirs on what the contract is. And putting things in writing, by clarifying the expectations of both parties, can prevent conflict arising in the first place.
An email that clearly sets out what is agreed does count as evidence of a contract.
For as long as photographers can remember, most deals have been struck with a handshake (possibly metaphorical) or no more than a phone call or text message. This business depends largely on personal contact, which makes it difficult to conduct yourself in a manner which is - well, more businesslike.
Publishers are increasingly presenting contracts when commissioning photographers that aim to get around the Copyright Designs and Patents Act 1988 (see "Copyright advice for photographers", linked below). This grants photographers ownership of the rights in their work, whether commissioned or on spec. These "rights-grabbing" contracts, if signed, give publishers the rights instead.
Photographers in their turn are using contracts to place clear limits on the rights they are actually selling. The NUJ strongly advises you to do this. Clarity is essential. Rights should be negotiated (see "Negotiating rates and rights" advice for photographers, linked below) and then confirmed in writing.
Model contracts are available from a number of sources: see below. Photographers can draw on these to devise their own.
There are many more points to consider. Here are two of particular importance:
Publishers' contracts with rights-grabbing intellectual property clauses often contain equally one-sided indemnity clauses - perhaps banking on many photographers never reading them. It is important that photographers do not indemnify clients against the consequences of their use of the photographers' pictures. See "Indemnities - challenge them and get insurance ", linked below.
No transfer until paid
Photographers should insert a clause stipulating that no rights whatsoever are sold until their invoice is paid in full. This does encourage the client to pay. A rather less obvious reason for doing it is to prevent third parties buying an insolvent client's assets - including rights to a photographer's pictures - while escaping their obligations, such as paying the photographer for these rights.
Things to watch out for
The client may wish to renegotiate terms before the commission is undertaken, but photographers should not accept clients' attempts to renegotiate them after the work is started, or simply to impose their own terms retrospectively.
There are some tricks that photographers should look out for in particular:
- Purchase Orders - clients frequently use the small print on these to impose terms quite different from those agreed (often verbally) with the photographer. Quoting the PO number on an invoice could be taken as acceptance of these altered terms unless the photographer specifically rejects them.
- Self-Billed "invoices" - these are widely used in publishing, and are often convenient to both parties. But some clients have been known to use the small print to impose different contract terms, as above. Unscrupulous - or perhaps incompetent - clients may grab additional rights by pre-emptively issuing an invoice to themselves for what they want to buy, at the price they want to pay. Photographers have to be careful that they sell no more than they intend for the cash amount agreed.
- "See our website" - if a photographer doesn't agree anything specific, clients may rely on "our published terms and conditions". These can be quite hard to find on the client's website. Sometimes, they are written to cover photographs submitted by readers, not professional photographers.
In general, any such attempt to vary the terms which were agreed at the time of the commission would not be lawful. The problem of course, is the cost of enforcing this - especially if you haven't got the agreement in writing.
The term "assignment" has a specific legal meaning in relation to copyright. It means the sale or surrender of the whole copyright itself, outright.
Licensing refers to the granting of rights, in exchange for the agreed fee, to do certain, specified things, by a photographer who remains the copyright holder.
Watch out for documents that claim you have "assigned" your copyright to the client. In UK law copyright holders can only do this by signing it away in a written document - probably one document for each image or other work. You are strongly advised not to do so (see "Copyright advice for photographers", linked below).
Watch out also to see whether you are being asked to grant an "exclusive" licence. That would mean you retain ownership of the image: but do check where and for how long the client wants exclusivity. It can be useful, for example, to license a client to have the exclusive right to use a photo for use in print, in the UK, for one month - for a significantly enhanced fee. But some clients sneak in wording that means you agree not to license your photo to anyone else - ever. There are obviously times when this is useful - for a very significantly enhanced fee.
Delivery of stock photos
The warnings apply equally to the supply of stock photographs. It is just as important to define the terms and conditions that apply when supplying stock material. This may seem obvious, but it becomes vital if there is any dispute or misunderstanding.
Better contracts may be available
Large companies that have self-contained legal departments can be the hardest to negotiate with. They may issue commissioning editors with set schedules of rates and will have set contracts in which they try to get a licence allowing the widest possible use of the work for that price.
They are, however, more likely also to have pre-packaged "fall-back" contracts for the famous - and these offer much better terms. Picture editors may be under instructions not to reveal that these exist... but they do.
Even those companies that insist they have immovable standard rates are likely also to have another set of rates for special contributors.
The NUJ has several template contracts that it can offer to members who need to present a draft in negotiation, or to draw up their own standard contract. NUJ members should contact the Freelance Office describing the purposes for which you need to draft a contract. Join the union to get such assistance and more.
Text © Mike Holderness & previous contributors; Moral rights asserted. The collection (database right) © National Union of Journalists. Comments to firstname.lastname@example.org please. You may find the glossary helpful.
The National Union of Journalists must not, can not and would not wish to dictate rates or terms of engagement to members or to editors. The information presented here is for guidance and as an aid to equitable negotiation only.
Suggestions apply to contracts governed by UK law only. In any event, nothing here should be construed as legal advice.