Freelance Business: An Introduction to Contracts
When you shoot an assignment for a client, do they have to pay you?
Did you tell them, in advance, that they have to pay you or did you assume a cheque would magically appear in your mailbox?
Newspaper staff photographers automatically get a paycheque every week whether they need it or not. :-) But self-employed photographers get paid only if they have an agreement or contract with their clients.
A contract is simply a legal promise. The photographer promises to provide certain photo services under certain conditions and the client promises to pay for those services. If one party doesn’t live up to its promise then it can be sued for breach of contract.
Contracts can be verbal, electronic or printed on paper. While all are valid, a paper contract is easiest to prove. Contracts can be long or short, printed on fancy paper or scrawled on a napkin.
The purpose of having an agreement or contract with a client is to make sure both parties agree about an upcoming photo assignment. Never assume that a customer thinks like a photographer or even understands what a photographer does.
A contract has to define a few things such as:
Exactly who is the customer?
What is the assignment? When is it? Where is it?
How will pictures be finished? How and when will they be delivered?
What can the customer do with the pictures?
Does the customer have to pay for the pictures? If yes, what and when do they have to pay?
What if they don’t pay?
What if the customer hates the pictures, or doesn’t use them, do they still have to pay?
What about cancellations, postponements and reshoots?
What if something goes wrong and the pictures are lost (example: memory cards get lost or stolen)?
Under which jurisdiction is the contract written?
A contract not only defines the terms of an assignment but it should also try to limit the liability of the photographer. Note that limiting liability is not the same as shirking responsibility and it is not a licence to be careless. A photographer must always be responsible in their work and must perform that work in a competent and professional manner. Limiting liability doesn’t eliminate liability.
Contracts offered by publications sometimes include an indemnification clause. This means that if the publication gets sued for using a picture, the photographer has to defend or help defend that lawsuit. Here are a few examples:
• “Photographer represents and warrants that all material created, added and/or submitted by Photographer … shall be wholly original and shall not infringe upon or violate the rights of any third party, whether personal or proprietary. Photographer hereby indemnifies and holds harmless XXXXX from and against any and all amounts, claims, costs, damages, or liabilities arising out of a breach by Photographer of this Agreement or any of the foregoing representations and warranties, or out of Photographer’s negligent acts or omissions.”
• “Freelancer represents and warrants that he/she will use best efforts to ensure that the Content is wholly original to Freelancer, that Freelancer has the unimpaired right to convey the rights granted herein, and that the Content shall not infringe upon or violate the rights of any third party, whether personal or proprietary, including copyright. Freelancer hereby indemnifies and holds harmless XXXXX from and against any and all damages, or liabilities arising out of a breach by Freelancer of this agreement or any of the foregoing representations and warranties.”
• “You will … ascertain to the best of Your ability that publication of the Artwork will not infringe upon any copyright, right of privacy. Artist agrees to cooperate in the defence of any legal action which may be brought against Publisher arising from the publication of the Artwork.”
• “The Freelancer warrants that he/she is entitled to enter into this Agreement and that each Work supplied will be an original, previously unpublished Work created solely by the Freelancer, and which will not infringe the rights of any person.
Should you agree to such a clause? Probably not. For a photographer to agree, they would either (a) have a law degree and know all possible rights that could be infringed and understand what constitutes an infringement, or (b) hire a lawyer to review their pictures before sending them to the client.
A good indemnification clause is no indemnification clause and some publications don’t use any such clause. One wire service contract simply states:
“You agree that all information included in the photo captions is truthful. You agree not to alter the veracity of images in any way or form, digitally or otherwise.”
Another important part of a contract is to spell out copyright issues. Canada’s Copyright Act was amended in 2012. One important change is that, now, the photographer is the default copyright owner of their pictures. Previously, the party who hired the photographer was the copyright owner. Never assume that a client knows anything about copyright or that they are up-to-date with copyright issues.
“Work-made-for-hire” is a US term and doesn’t exist in Canadian law. (Note that work-made-for-hire is limited in scope and the work must fall within one of nine categories. Not all photo assignments can qualify as a work-made-for-hire despite what the contract or client might say). However, under certain circumstances, it’s possible to have a Canadian client own the copyright, but not the Moral Rights, to pictures shot on an assignment. If a Canadian client uses the phrase “work-made-for-hire”, it only shows that the client knows how to copy-and-paste from a US web site.
— Warren Toda