February 17, 2016

Graham Ashton

Photography Contract: 7 Red Flags To Watch Out For

Photo: Robert Couse-Baker

The creativity of photography is often protected by precise legal jargon that at best, is glossed over, and at worst slyly strips the photographer of all the rights to their work. No one reads legal contracts for pleasure, but signing a photography contract without a close look can prove disastrous. Pixsy can help fight image theft, but if you sign a contract with a certain clause, the photography copyright isn't even yours, to begin with.

The problem is, contracts often need an interpreter to really spell out exactly what signing on the dotted line means. And while most will sign a contract without negotiation, photography contracts are actually meant to be negotiated. As both an artist and professional, it's the photographer's job to ensure the contract protects both parties and not just the client.

While the best approach is to work with a lawyer to draft your own contract, there are a few things photographers can look out for when presented with a contract. Here are seven red flags to look out for when signing that photography contract (including one I recently spotted myself).

Disclaimer: I'm a photographer, not a lawyer. While this information comes from both research and personal experience, always consult a law professional if you are unsure.

“Transfer of Rights” vs “Grant of Rights”

Who actually owns the rights to your photos? Many photographers are presented with contracts that actually transfer the copyright to the company, leaving the photographer without any rights to their work. In contract language, this usually appears as a “transfer of rights” clause. When a photographer signs a transfer of rights clause, they transfer all the copyrights. Once you transfer a copyright, you can't get it back—even if the company you signed with goes bankrupt or no longer uses your work. That means you can't even use the images for your portfolio without permission from the client.

If a client presents you with a “transfer of rights” contract, adjust the language instead to a “grant of rights,” which, according to art business consultant Maria Brophy, gives the clients right to use the images, but doesn't transfer the actual photography copyright.

If a client insists on a copyright transfer, be sure that you are spelling out exactly which photos those are, that you aren't giving away the copyright to every photo indefinitely and that your payment reflects your loss of copyright.

Rates with a maximum, but no minimum

TIME Inc. recently made the headlines with their photography contract changes. The contract included several troubling changes, but perhaps the biggest one is that their rates only set a maximum, no minimum. That leaves a lot of room for interpretation, and not likely in the photographer's favor.

The TIME contract also switched from a space rate, where photographers were paid more for larger photo spreads, to a day rate, which pays the same whether the image is a small one-column or a cover spread.

The bottom line? Make sure you know exactly what and how you are being paid, and if there's any question, negotiate with contract changes.

Long terms and automatic renewals

Contracts are no fun, so why sign one more often than you need to, right? Wrong. Be wary of long-term photography contracts, especially ones that also contain non-compete clauses or a significant transfer of rights. Contracts with automatic renewals are just as bad—are you really going to remember two years down the road that your contract is automatically renewing?

Instead, stick with a term that's two years or less.

Include a clause that says that both parties may extend the contract at the end with additional signatures.

That gives the client plenty of time but also gives you an opening to renegotiate rates in the future.

“Exclusive” and “Without limitation”

Photographers should be wary of any contract language that says “exclusive” or “without limitation.” Selling the exclusive rights to your images means you can't use them anywhere else. Even worse is a work for hire contract that gives the company exclusive rights to images that you take any time during the contract's time period.

If your client is pushing for exclusive rights, don't negotiate the contract yourself. Work with a lawyer to ensure that you won't be losing out on future profits.

Be wary of the word “worldwide” as well—specify the countries that the client does business in instead.

“Irrevocable gratis promotional use”

This clause is one that concert photographers often come across, though any photographer may find it popping up in a contract. When “irrevocable gratis promotional use” is used in a photography contract, not by a client, but the person or group you'll be photographing, it means the person in your images can use those photos for promotional use without paying for them.

Photographer Deshaun A. Craddock detailed one such contract that he signed, which besides allowing the musician to use the photos he took for a newspaper, also limited the number of images he could use in the publication what was paying him in the first place.

Photography contracts with musicians are rather notorious for the restrictions placed on photographers. Taylor Swift's entertainment company, for example, once used a photography contract which originally prevented photographers from using the images in their own portfolio, allowed unlimited non-commercial use for themselves, and even stated they could confiscate or destroy “the technology or devices that contain the master files” (i.e. cameras, memory cards, computers) if that contract was breached. That contract was revised after an outcry from the photography community.

“At Client's Discretion”

This phrase recently came up in a photography contract I signed with a non-compete clause. The problem is, that gives the client a lot of wiggle room. In my case, it would have allowed the client to determine exactly what competing works entails.

Never leave anything completely up to the client's opinion.

In my case, I added a phrase to be more specific—detailing exactly what “competing for work” would mean in a way that was fair to the client but wouldn't risk potential growth in the future.

Photography contract without an “out” clause

Signing a new contract is a good time to play the “what if” game. What if the client goes out of business? What if the client fails to pay on time? Every photography contract should include an “out” section, or something detailing when and how the contract can end prior to the end date.

Ideally, the contract should state that if the client doesn't pay, they no longer have a grant of rights and the contract is void.

Avoid signing a contract that doesn't offer a way to get out if the worst happens.

Often, many clients are more than willing to make the contract fair for both sides, but many photographers consider them as “written in stone” and sign without negotiating, at the fear of losing a client (and their profit). Contracts are meant to be negotiated and should protect both sides. Knowing what to look for in a photography contract can help you work through potential contract pitfalls, but if you're unsure, contact a law professional.

Post by Hillary K. Grigonis, a Michigan-based lifestyle photographer. When she’s not taking pictures, she’s writing (about taking pictures).

Graham Ashton

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