Advice - Photography / Contracts and paperwork
Contracts are best in writing. Oral agreements are legally binding but can be difficult to enforce in court - it comes down to your word against theirs. And putting things in writing, by clarifying the expectations of both parties, can prevent conflict arising in the first place.
For as long as photographers can remember, most deals have been struck with a handshake, if that. Or no more than a phone call. This business depends largely on personal contact, which makes it difficult to conduct in a manner which is - well, more businesslike. And not always necessary. However the growing appreciation by all concerned of the true value of intellectual property means this world is vanishing fast.
Publishers are increasingly presenting contracts when commissioning photographers in order to get around the Copyright Designs and Patents Act 1988 (see Copyright advice), which for the first time granted photographers ownership of the rights in their commissioned working. 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, and are strongly advised to do so.
Even where intentions on both sides are honourable, as is usually the case, the use of contracts to specify rights sold is recommended because the CDPA 1988 is necessarily vague on this point. After stating clearly, and rightly, that photographers own copyright, it leaves the rest to negotiation. In the absence of a contract, therefore, the law is quite clear what has not been sold, but very unclear what has. It is presumed that the client has bought certain unspecified rights relating to their business. This just will not do, for either side. 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. The Commission/Confirmation of Sale form drawn up by the Creators' Copyright Coalition is available in pads of 50 from the Freelance office, listing a range of rights that might be licensed to a client for pictures or words. You can also download it from here. Photographers can also 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 which many photographers never read. It is important that photographers do not indemnify clients against the consequences of their use of the photographers' pictures.
No transfer until paid
Second, photographers should insert a clause stipulating that no rights whatsoever are sold until their invoice is paid in full. This is to prevent third parties buying a bankrupt client's assets - including rights to a photographer's pictures - but not 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 few other walk of life where the buyer tries to impose terms on the seller. This is another reason why photographers should clearly state their terms when accepting a commission.
The client may wish to renegotiate terms before the commission is undertaken, but photographers should not accept clients' attempts to renegotiate them afterwards, or simply to impose their own terms retrospectively.
There are three tricks in particular photographers should look out for.
- Purchase Orders - clients frequently use the small print on these to impose terms at variance with those stated by 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. Widely used in publishing, and often convenient to both parties, clients sometimes use the small print in exactly the same way as outlined above - in this case the 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.
- Cheque Signatures. Photographers still sometimes receive cheques which require a signature on the back before they can be cashed, referring to rights sold. This is not lawful. Almost invariably these cheques are demanding rights the photographer has not sold. Photographers can demand an alternative method of payment, or either replace or delete the offending words before signing. To make absolutely clear that no more rights have been sold than originally agreed it is safer to then inform the client in writing that payment has been accepted only for the rights originally sold.
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 copyright itself, whereas licensing refers to the granting of rights by one who remains the copyright holder.
In much of the documentation referred to above photographers are claimed to have "assigned" their copyright to the client. In UK law copyright holders can only do this by signing it away in a written document. They are strongly advised never to do so.
Delivery of stock photos
Much of the above refers to commissioned work, but 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. Standard photographers' terms and conditions are set out on the Delivery Notes available to NUJ members from the Freelance office.
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.