As a wedding photojournalist, the client contract is central to your business. However, a good contract is critical to your business. How good is yours?
The written agreement that exists between you and your client can serve many everyday purposes, from defining your services and the expected deliverables, to clarifying the ground rules and limits for the use of your images after they have been turned over to the bride and groom. However, a good contract should also protect you from liabilities that may stem from unanticipated events and circumstances. That part is like an insurance policy: You hope that you’ll never need it, but you really need to have it for that one-in-a-thousand situation.
WPJA’s members are a highly successful group—talented and exacting professionals who often shoot for the world’s top publications in addition to their matrimonial coverage. Not surprisingly, they tend to have paid particular attention to this aspect of their businesses, and a few of them have given us some valuable advice.
Aside from the journalistic considerations, your work for a bride and groom can usually be considered from two perspectives: what you have promised to provide for them, including your services and deliverables, and what rights both you and they then have in using the fruits of your labor-the photos themselves. It therefore makes sense to structure your client agreement in the same way, with a discrete section addressing each of those categories.
Atlanta-based WPJA medallion winner Michael Schwarz uses a two-part agreement that has evolved over the past several years. The first section is a comprehensive document spelling out the photographer's fee and exactly what the client is purchasing: what services and packages, as well as the specific details of the wedding, including the date, the time, the place and during what hours he is supposed to work the event.
“Contracts should be as specific as possible on the photographer’s obligations,” Schwarz maintains. “It protects the client because you have everything they’re entitled to clearly written, with no verbal promises beyond the document. It also protects the photographer from having clients come back after the fact and claiming that they were supposed to have gotten something that they didn’t get.” He notes that this portion of the agreement also doubles as a job sheet on the particulars of the wedding.
The second part of a good contract is what Schwarz calls “the fine print” —the terms and conditions that govern such legalities as ownership and use of the photos, a schedule of payments, the legal limits of his liability in case the bride and groom feel that they haven’t gotten exactly what they were expecting, and how such disagreements would be handled. In his case, this is a one-page boilerplate with 12 terms that he uses for all of his clients.
The particulars of covering a wedding—the whos, whats and whens—are one thing, but the rules for using the photos you have produced are quite another, and that’s why a contract’s “fine print” is so important.
“My terms clarify that I am the owner of the copyright of the images, and that I grant an unlimited license to the client to utilize the images for their own personal use—they can’t sell them or transfer any type of copyright,” Schwarz notes. “It also clarifies that I do have the right to use their images in my own self-promotion or advertising.”
WPJA member Jay Clendenin, based in the Los Angeles, California area, goes further. As is standard, his clients may utilize images for personal use or enjoyment and for newspaper announcements, as well as for non-commercial Web sites; however, they may not sell or publish them without his written consent. This includes bridal magazines, as well as distribution to vendors associated with the wedding, such as the flower company, the bakery that supplied the cake, or the venue.
He’s particularly strict with magazine use, noting that he generally doesn’t give out his images to those publications without some form of compensation, since every page is paid for by advertisers and generates significant revenue. “The bride and groom will call and say ‘Hey, this magazine wants to do a story on us. Is it okay if we show them your images?’ I’ll say yes, but make sure they contact me if they’re going to use them,” he says.
Clendenin reserves his right to use wedding photos for self-promotional purposes, including print and Web materials, portfolio use and photography contests, such as those run by the WPJA. (See accompanying article on photography contests in this issue of WedPix.) Of course, most clients are going to be very excited that their photographer has won an award from their wedding, and as a result the winning image gets published; yet it’s a good idea to cover this use specifically in the contract, just to make sure you have all your bases covered.
The same goes for using images on cards, banners, online and in other media to promote the business. Get this covered in the contract in advance for that killer image waiting around the corner.
However, Clendenin may differ from some of his colleagues in that his terms and conditions also state that he can use the photos for stock, which allows him to generate additional revenue from his work.
“I think that everybody should do that,” he maintains. “You only have the energy to shoot weddings for so long, and you’ve got to think about the future. How well are you budgeting for that?”
Clendenin notes that for his last two weddings in 2006 he actually started asking attendees to sign model releases to cover the stock use. “I’ll do my standard photojournalistic coverage of the weddings, and sometimes I’ll give the clients extra in exchange for the releases,” he says.
There is a well-worn expression that the devil is in the details, which happens to be true. When it comes to a binding agreement, a single word used here or there can make a huge difference in your obligations and liabilities as a photographer.
For example, Schwarz prefers to use the term “retainer” as opposed to “deposit” when referencing the money he is paid upon contract signing. He notes that they’re two different things, even though they’re often used interchangeably. “A ‘retainer’ is a non-refundable payment the client is making to me to secure my services on a particular day,” he notes, “whereas a ‘deposit’ is a partial payment toward the purchase of a product. In the credit card industry, if you accept a deposit and don’t deliver the product, then you may be liable for its return. So, if I don’t get the final payment 30 days before the wedding, I have the ability to retain that retainer as liquidated damages.”
And what if you for some reason are unable to give the clients what they thought they were entitled to? A solid “Failure to Perform” clause spells out the clients' rights, protecting them while setting a mutually agreeable limit of liability that would not exceed the amount they have paid. Says Schwarz, “I ran this by my lawyer and put it in, because I had heard horror stories of brides suing for emotional duress in amounts well in excess of the value of the products. Of course, anybody can sue you for anything.”
Clendenin’s contract says that if he cannot perform due to fire or other casualty strike, act of terrorism or other cause beyond the control of the party or illness of the photographer, and if he can’t provide another competent professional, then all monies received will be returned to the client and he would have no further liability. This also applies loss of photographic materials, camera malfunctions, processing mishaps or other losses or damages that aren’t his fault.
And then there’s the issue of legal venue. What if you are based in New York and photograph a wedding in California, only to have a dispute with the wedding party that can’t be resolved out of the court system? You’ll want to make sure in advance that you don’t have to go through the costly and time-consuming process of attending court thousands of miles away under another state’s law. That’s why Schwarz’s term sheet includes an arbitration clause that sets a local jurisdiction in case of a dispute – in his case, Atlanta. “For anyone who does weddings outside of their home base, that’s absolutely critical,” he notes.
Do clients balk at these kinds of terms? That hasn’t been the experience of any of our award winners. “I don’t have personal conversations with every client, but I do tell them [through email] to make sure to review all of the terms and call or email me if they have any questions,” says Clendenin, whose Agreement and My Terms pages are both available at his site. “I’ve never had any questions, other than ‘what do we do if you get sick or can’t be there’ and I reiterate what is in the contract.”
“I have never encountered any resistance,” Schwarz agrees. “I try to sit down with every client and explain the contract to them. That’s important—how you present it. I go through the agreement and explain that each one of the clauses is a two-way street.”
“You need to protect yourself, but not scare away the client,” Clendenin maintains. “Protecting yourself is also thinking about your future. Photography is my love and my passion, but it is also how I make a living. I support a mortgage and family. If you don’t protect yourself, you’re setting yourself up for trouble.”
Fadi Kheir, a WPJA award-winning member based out of New York City, has a one-page agreement which he feels keeps it simple and helpful for client relations. “I just want to make sure that I’m paid, and make sure that the clients feel fully comfortable that I’m going to fulfill my duties to them. The most important thing in the contract to me is that I want it to be straightforward. I keep things simple from the day they meet me to the day they get their pictures.”
—by Michael Roney for the Wedding Photojournalist Association