thephotographybiz.com

photo credit: DanBrady

Where would we be without the small print? I’ll tell you where. In a world where we could be taken advantage of or worse still ripped-off and we would have little or no come back. I’m always surprised at the number of photographer’s websites that don’t contain any reference to their terms of business. Simply, that is what terms & conditions are, a way of setting out the conditions under which you will undertake a commission or sell a stock image.

Almost all businesses you encounter in your daily life have terms and conditions that relate to the service they provide or the product they sell. You will be asked to accept them before work commences. It is a way of protecting a business from being taken advantage of and allowing the business to lay out what they will do and what is expected of the client in return for the fee. A lot of photographers “can’t be bothered” until the day they are first taken advantage of, ripped off and/or lose money and all because they hadn’t set out clearly how they work.

The Association of Photographers in the UK have a publicly available set of Terms & Conditions which you can download from this page.

Update: I’ve just seen that over on the US based ‘A Photo Editor’ blog there’s a similar piece that explains the Day Rate vs Space Rate t&c’s clause by clause for all you US based photographers. Day Rate vs Space isn’t common at all here in the UK editorial world. It was used by some publishers 10 years ago + but died a death (certainly with the publishers I shoot for). If you’re in the UK and you shoot for a client who uses this system then it would be good to know (let me know in the comments) and head over to Rob’s blog to see what Rob’s readers make of it. Interesting stuff.

Back to the UK and standard photography assignment t&c’s. Let’s take a look at the AOP Terms & Conditions clause by clause. I’ll put my interpretation underneath. I am not a Lawyer and you probably aren’t either which is why using a legally drafted set of terms & conditions rather than something you knocked up yourself is the way to do it. The t&c’s below refer to England & Wales though by reading each clause you’ll see that they could equally apply (in principle) worldwide save for specific references to the those two countries.

1.DEFINITIONS
For the purpose of this agreement “the Agency” and “the Advertiser” shall where the context so admits include their respective assignees, sub-licensees and successors in title. In cases where the Photographer’s client is a direct client (i.e. with no agency or intermediary), all references in this agreement to both “the Agency” and “the Advertiser” shall be interpreted as references to the Photographer’s client. “Photographs” means all photographic material furnished by the Photographer, whether transparencies, negatives, prints or any other type of physical or electronic material.

Defines who is your client and protects you from client “ping-pong”. If you are commissioned by an Ad Agency then they can’t say that it’s their client who should pay you and vice-versa. Yes, this does happen. It also defines the use of the word “photogaph” to include electronic files as well as prints or transparencies

2.COPYRIGHT
The entire copyright in the Photographs is retained by the Photographer at all times throughout the world.

Asserts your ownership of the created material.

3.OWNERSHIP OF MATERIALS
Title to all Photographs remains the property of the Photographer. When the Licence to Use the material has expired the Photographs must be returned to the Photographer in good condition within 30 days.

More targetted to the days when transparencies were given to the client for the duration of the licence. Clients in receipt of electronic files should, in theory, delete electronic files once the licence period has ceased

4.USE
The Licence to Use comes into effect from the date of payment of the relevant invoice(s). No use may be made of the Photographs before payment in full of the relevant invoice(s) without the Photographer’s express permission. Any permission which may be given for prior use will automatically be revoked if full payment is not made by the due date or if the Agency is
put into receivership or liquidation.

The Licence only applies to the advertiser and product as stated on the front of the form and its benefit shall not be assigned to any third party without the Photographer’s permission. Accordingly, even where any form of ‘all media’ Licence is granted, the photographer’s permission must be obtained before any use of the Photographs for other purposes eg use in relation to another product or sublicensing through a photolibrary.

Permission to use the Photographs for purposes outside the terms of the Licence will normally be granted upon payment of a further fee, which must be mutually agreed (and paid in full) before such further use. Unless otherwise agreed in writing, all further Licences in respect of the Photographs will be subject to these terms and conditions.

Importantly this clause states that any licence you’ve issued doesn’t come into force until you’ve been paid. It also allows you to revoke permission to use your images from a client of an agency if the commissioning agency liquidates before they’ve paid you. For agency also read local PR company or marketing agency, doesn’t have to be Saatchi size to apply etc.

This clause makes it clear that third party use is not allowed. This stops your client from giving your images to related third parties for free (i.e. people who are not your client but perhaps those who have worked with the client related to the project). This happens a lot and you need to watch out for it.

The final paragraph makes clear that the client must seek to purchase another licence from you if they wish to use your material for purposes outside the original licence terms.

If you’ve no idea what a photography licence is then read this post.

5.EXCLUSIVITY
The Agency and Advertiser will be authorised to publish the Photographs to the exclusion of all other persons including the Photographer. However, the Photographer retains the right in all cases to use the Photographs in any manner at any time and in any part of the world for the purposes of advertising or otherwise promoting his/her work. After the exclusivity period
indicated in the Licence to Use the Photographer shall be entitled to use the Photographs for any purposes.

You are promising not to sell the images to anyone else while the licence is in force. Advertising assignment and commissioned photography is normally subject to an exclusive licence or a licence under which you agree not to resell for x years. After this period you may do what you wish with the images including resell as stock. Editorial commissions are normally for one reproduction in one edition of a publication only and the exclusivity may only last for one month in the case of a monthly magazine. At any time you may use the work for self-promotion.

6.CLIENT CONFIDENTIALITY
The photographer will keep confidential and will not disclose to any third parties or make use of material or information communicated to him/her in confidence for the purposes of the photography, save as may be reasonably necessary to enable the Photographer to carry out his/her obligations in relation to the commission.

If you’re commissioned to shoot something that means you become party to confidential information then you’ll keep it that way

7.INDEMNITY
The Photographer agrees to indemnify the Agency and the Advertiser against all expenses, damages, claims and legal costs arising out of any failure by the Photographer to obtain any clearances for which he/she was responsible in respect of third party copyright works, trade marks, designs or other intellectual property. The Photographer shall only be responsible for obtaining such clearances if this has been expressly agreed before the shoot. In all other cases the Agency shall be responsible for obtaining such clearances and will indemnify the Photographer against all expenses, damages, claims and legal costs arising out of any failure to obtain such clearances.

If your commission says its your responsibility to get model and property releases, permits and agreements then you allow the agency/client to sue you if you didn’t do this properly. However if your brief did not include such a request (for which I would charge a lot extra as it would involve lots of admin and perhaps legal queries) then the agency/client indemnifies you if they use an image you supplied without the necessary clearance and they get sued.

8.PAYMENT
Payment by the Agency will be expected for the commissioned work within 30 days of the issue of the relevant invoice. If the invoice is not paid, in full, within 30 days The Photographer reserves the right to charge interest at the rate prescribed by the Late Payment of Commercial Debt (Interest) Act 1998 from the date payment was due until the date payment is made.

You invoice after the work is delivered and expect payment within 30 days. Don’t take either of these excuses:

a) “We only pay accounts after 90 days”; or

b) “We only pay once we’ve been paid by our client”

That’s just bull***t so they can keep your money earning them interest. Ask for and pressure for 30 days. If 30 days is stated here in your t&c’s and on your invoice then you must stick to this like glue. A lot of companies only pay the people who hassle them the most. This is business not personal and all accounts people seem to think it’s their personal stash you’re asking for a chunk of. Don’t be afraid to hassle them.

Remember the client can’t use the images before they’ve paid you….. see clause 4.USE

9.EXPENSES
Where extra expenses or time are incurred by the Photographer as a result of alterations to the original brief by the Agency or the Advertiser, or otherwise at their request, the Agency shall give approval to and be liable to pay such extra expenses or fees at the Photographer’s normal rate to the Photographer in addition to the expenses shown overleaf as having been agreed or estimated.

Deals with those “while you’re here” moments or “why don’t we try it like this” moments on a shoot which mean your finely executed estimate goes south and you are liable for the overtime of assistants/crew or incurring extra expenses because the client altered the brief.

10.REJECTION
Unless a rejection fee has been agreed in advance, there is no right to reject on the basis of style or composition.

Stops the client rejecting your work purely because they don’t like it. This has nothing to do with, and doesn’t override, their statutory rights if you’re just a crap photographer and can’t focus or expose properly. But it stops the nit-picking that sometimes goes on if the client couldn’t be bothered to turn up at the shoot, hasn’t witnessed the difficulties that may have existed due to weather, crap talent they made you hire because of their lean budget etc etc. and then rejecting your images from their office chair later. Tip: if they do turn up get their approval of every shot on the list before moving to the next set-up

11.CANCELLATION & POSTPONEMENT
A booking is considered firm as from the date of confirmation and accordingly the Photographer will, at his/her discretion,
charge a fee for cancellation or postponement.

Your right to charge a cancellation fee if a client pulls a shoot that has been firmly booked.

12.RIGHT TO A CREDIT
If the box on the estimate and the licence marked “Right to a Credit” has been ticked the Photographer’s name will be printed on or in reasonable proximity to all published reproductions of the Photograph(s). By ticking the box overleaf the Photographer also asserts his/her statutory right to be identified in the circumstances set out in Sections 77-79 of the Copyright, Designs and Patents Act 1988 or any amendment or re-enactment thereof.

Self explanatory!

13.ELECTRONIC STORAGE
Save for the purposes of reproduction for the licensed use(s), the Photographs may not be stored in any form of electronic medium without the written permission of the Photographer. Manipulation of the image or use of only a portion of the image may only take place with the permission of the Photographer.

Stops the client holding onto your files for longer than they need (similar to clause 3). Stops the client manipulating the work you present them without your consent

14.APPLICABLE LAW
This agreement shall be governed by the laws of England & Wales

Sets the legal jurisdiction for the agreement

15.VARIATION
These Terms and Conditions shall not be varied except by agreement in writing.

Ensures these t&c’s can’t be waived, varied or amended unless it’s in writing

So I’ve got my t&c’s sorted – what do I do now…

Don’t hide them away under a bushel. Publish them on your website and send them with every estimate without fail.

Your own terms and conditions may vary depending on which country you are in but please make sure you have some. They not only reinforce a degree of professionalism, but they will stop you and your work being easily exploited. They will help if ever you need to take a client to court for late payment or a breach of licence by showing that you clearly set out your terms of engagement which were agreed before the job commenced.

Your terms are your terms and your client (especially in publishing) will have their own terms. Your task is to get your terms agreed by your client before you shoot a frame. This may take some bartering on both parts or it may not. The terms above are not scary nor onerous for a client. They are pretty standard fayre. If anyone wants to reject them completely be very wary of motive!

I always send my terms & conditions along with my estimate form and the wording: “By accepting my estimate you are also agreeing to my terms and commissions as attached” In this way if my bid is accepted so are my t&c’s. Hasn’t failed me yet. Some people get the client to email them confirmation of acceptance. Either way, the onus needs to be on the client to accept your terms before you shoot.

Along with your estimate setting out the fees and rights included for the job your t&c’s are the second most important piece of paperwork you will possess pre-shoot. For if and when the brown stuff hits the fan (and in the creative world this can often happen) it’s these very simple t&c’s which will often be your lifebelt.

Small print is good print… ;)

PP

Tags: Assignment Photography, Getting paid, Photography Business, terms and conditions, terms of business

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• How to deal with clients who want your photography for the cheapest possible price (3)
• Assignment Photography: How to charge and price up assignments – part two (4)
• Assignment Photography: How to charge and price up assignments – part three (1)
• Assignment Photography: How to charge and price up assignments – part one (2)
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