Advice - Photography / Contracts and paperwork

Contracts are best in writing. Oral agreements are in theory legally binding: but can be difficult to enforce them 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, or no more than a phone call. 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), which 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 are strongly advises you to do this. Clarity is essential. Rights should be negotiated (see Negotiating rates and rights) and then confirmed in writing.

Model contracts are available from a number of sources. Photographers can draw on these to devise their own.

There are many more points to consider. Here are two of particular importance:

Indemnity clauses

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.

No transfer until paid

Photographers should insert a clause stipulating that no rights whatsoever are sold until their invoice is paid in full. This rather encourages the client to pay. A rather less obvious reason for doing it is to prevent third parties buying a bankrupt client's assets - including rights to a photographer's pictures - while escaping their obligations, such as paying the photographer for these rights.

Photographers often meet resistance when presenting their own terms and conditions. It is important to remember that there are few other walks of life in which the buyer tries to impose terms on the seller.

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 tricks that photographers should look out for in particular:

  1. 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.
  2. Self-Billed "invoices". these are widely used in publishing, and often convenient to both parties. But some clients have been known to use the small print to impose different contract terms, as above. In other words these unscrupulous - or perhaps incompetent - clients grab additional rights by invoicing 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.

In general, any attempt to vary the terms which were agreed at the time of the commission - whether by new contract, purchase order or the old trick of making the photographer sign on the back of a cheque - would not be lawful. The problem of course, is the cost of enforcing this.

While walking through this minefield, bear in mind the crucial distinction between assigning copyright and licensing rights.

The term "assignment" has a specific legal meaning in relation to copyright. It means the sale of the whole copyright itself, outright.

Licensing refers to the granting of rights 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 never to do so.

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 agree not to license it 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 which apply when supplying stock material. This may seem obvious, but it becomes vital if there is any dispute or misunderstanding.

 
Agreements
More advice and links...
* Copyright advice for photographers
* Getting your money general advice
* Collect-o-matic checks the details needed - for NUJ members
[www.londonfreelance.org]
* Rates for the Job good, bad and ugly
* Join the NUJ to get individual advice & representation

Text © Mike Holderness & previous contributors; Moral rights asserted. The collection (database right) © National Union of Journalists. Comments to ffg@londonfreelance.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.