I SUSPECT THE PART OF THE BRAIN that gets engaged when creating photographs is on the exact opposite side of the brain that deals with numbers and logistics. The challenge for all creatives who would combine their art with the business realm is to exercise the two in the right way and at the right time, to find a balance between them. It’s no secret that a staggering number of small businesses fail in the first few years, and if it’s not for a lack of marketing, it’s more than likely from a failure to pay close enough attention to finances. Your business will not thrive because you’re a photographic genius; there are lots of excellent photographers with failed businesses behind them. Your business will thrive if you take it seriously as its own thing, subject to its own rules—and those rules include contracts, taxation, pricing, negotiations, and being wise with your money.
This is not about how to write a contract. That kind of thing falls well outside the limits of my expertise. Damn it, Jim, I’m a photographer, not a lawyer. So consult with a lawyer when it comes to actually creating a contract. The other thing you should do is get a copy of John Harrington’s excellent Best Business Practices for Photographers, which goes into great detail on matters like legal issues. I cannot recommend this book highly enough as it addresses issues that you need to be aware of, about not only contracts but also the wide scope of your business. It’s an ideal next-read after this book.
What follows here explains why you need a contract, and I’m writing it hoping that I can convince even a few people out there to take it seriously. A contract is not only for the paranoid; it’s a written agreement of the terms to which client and vendor agree, and to which either can appeal when things get fuzzy. Why should you have a contract, written and signed, before beginning work?
Professionalism demands it. Clients expect that a professional will use a contract, and meeting that expectation is important if you want to remain a professional in their eyes. Professionals can be relied on and trusted, and they are worth the fees they ask. Of course, that’s not always true, but better to reinforce that belief and allow it to work in your favor than to work against. You negotiate, you agree, you put it in writing.
Clarity of communication is important. No one likes ambiguity, and a written record of all the details of your negotiation keeps everyone honest, prevents scope creep (addressed later in this chapter), and prevents misunderstandings and assumptions. And when misunderstandings and assumptions happen anyway, the contract clears the matter quickly.
To cover your ass. The bottom line is not everyone is honest. We all like to think we can spot the bad apples, but they come out of nowhere and will take you for what they can unless you’ve got things spelled out and have a legal means of recourse. A verbal agreement is very hard to prove in court. Generally speaking, having a clear contract signed by authorized signatories gives you faster, easier legal recourse in the event of problems.
All of this goes both ways, too. A contract should not be an imposition on a client, but a service to them. It keeps communications clear in both directions and protects your client as well. My intention is to convince you of the necessity, and desirability, of a written contract. If I’ve succeeded, your next question will be, What should I put in my contract? Well, that answer is for a lawyer to give, and it depends entirely on the market you work in. A contract for a wedding photographer will address different concerns than one for a commercial photographer. But here’s a short summary to give you an idea of the scope that a contract ought to cover.
A good contract will specify the parties to whom the agreement pertains, when the agreement is activated, and in what jurisdiction resolution will be pursued should there be a breach. It will contain a detailed scope of work and related exceptions. It will spell out payment information—including how much, for what, when payable, and to whom—and will address kill fees, deposits, and the responsibilities of both parties should the work not be completed. It should be clear on issues of usage (license) and copyright for both photographer and clients. And it should outline specifics related to deliverables and deadlines, limits of liability, and definitions for any potentially confusing words.
In short, any issue you discuss with a client regarding the specifics of a job should be part of the contract, including understandings such as a wedding photographer being the only professional photographer at an event, if that kind of thing is important to you. If the contract is attached to an offer, you should specify for how long that offer is valid.
This is not limited to paying clients. Photographers working pro bono or in trade need the benefits of a contract as much as photographers working for a fee. If you are working for an NGO or a charity and have decided to work without a fee (see the section “Take Me, I’m Yours,” later in this chapter), a contract will keep things clear and prevent a job for which you are not getting paid from becoming one that is full of misunderstanding and the potential to jeopardize your reputation. A fee pushes a client to take you seriously; so does a contract. Without either, there’s a good chance you’ll be seen as a volunteer and be treated as such. I don’t want to be cynical, but many is the organization that will take what you give, spit you out when they’re done, and leave you without so much as a thank-you. If there are specifics to the work you want to do for an organization, or regarding the use of the images afterward, put them in writing.
Remember, this is just a short summary. What I hope it will do is push you to make a personal policy that states no work is done without a contract of some sort. Large clients and big accounts will require contracts that are significantly more detailed, while clients who ask you to do headshots will require shorter ones, but having a contract in a culture of morbid litigiousness will protect you, your business, your family, and your mental health. So be sure to read Harrington’s Best Business Practices for Photographers, and then go for a consultation with a lawyer.