Business + Marketing

9 Crucial Photography Contract Clauses to Include

February 5, 2021

By Jacqueline Tobin

Illustration by Sharon Ber

Join Rangefinder and WPPI as we kick off our 2021 Reset Series. In January, we go Back to Business with a look at copyright, contracts, taxes and other unglamorous but all-too-important aspects of running a business.

Building a photography contract can be an intimidating process. You don’t want to scare off potential clients, but you also want to adequately protect yourself and your business should issues arise, big or small. We enlisted the help of our legal contributor and lawyer-for-artists, Aaron M. Arce Stark, who outlined four different scenarios and with them, nine different photography contract clauses and provisions to include:

1. Illness or incapacitation provision
2. Force majeure provision
3. Limited edits clause
4. Creative license clause
5. Dispute resolution clause
6. Non-disparagement clause
7. Limited use clause
8. Non-satisfaction clause or aesthetic disclaimer
9. Revisions schedule provision

Read about them in context below.

Contractual Obligations When You or Your Clients Have to Cancel a Shoot

Should you find yourself in the position of needing to cancel a shoot, you will want to make sure that your contracts with clients include an illness or incapacitation provision, which would list some potential reasons (illness, injury, death in the family, etc.).

Absent of such a provision, you will want a force majeure provision, a clause that says something like, “Photographer is not liable for inability to perform their services due to a force majeure event,” namely “acts of God” or events that are otherwise unforeseeable and unavoidable that prevent you from doing your job. This includes things like large-scale natural disasters, wars, and—potentially—pandemics. It does not include things like natural weather patterns (i.e. rain) or predictable diseases.

What if a client wants to cancel or reschedule, and wants their deposit back? Can a client invoke the force majeure clause in their contract to get their deposit back? In general, and in theory, no.

A deposit, booking fee or retainer—depending on the wording of your contract—is payment for services you’ve already rendered, because it is payment for reserving the date of the shoot. You reserved that date and prevented yourself from being able to make money from someone else on that date. But the client would have to prove that the circumstances causing the need for cancellation are both unforeseeable and unavoidable. For a wedding, for instance, that’s much harder for a client to prove because they can almost always simply reschedule the wedding for another time.

There is, of course, some nuance to this, which you can read in full here.

How to Deal with a Client With Infinite Follow-Up Photo Requests

There are a few different routes you could take for this. In your contract, you could choose to include:

a limited edits clause, which would clearly state how many edits are included in your photo package. You can limit your edits to a set number of hours, a set number of images or any other restriction you’d like. You can forego free edits altogether and state that all edits are priced at an hourly rate.

a creative license clause, which states that you are an artist with a distinctive style and that your photos cannot be rejected on the basis of aesthetics and taste alone. 

a dispute resolution clause, which states where a dispute must be brought—in the courts of your home state, for example, or before a neutral arbiter. To be thorough, it should also state time limits for bringing a dispute, whether attorneys’ fees must be paid by the losing party, and it will limit damages to the amounts paid in the contract. 

a non-disparagement clause, which states that the client may not post or publish any disparaging or defamatory remarks about your services. You’d point to this if an unreasonable client took to the web to give you nasty reviews. Beware that non-disparagement clauses are controversial—they stifle free speech and hinder the process of customer reviews, which helps consumers find the best providers—and many clients will not agree to one. Nevertheless, they are very useful as a protective measure, and it’s a good idea to include one if you can. 

Read more tips about all of this here.

How to Reason With an Unreasonable Venue Contract

Let’s say you encounter a venue agreement that states that you are giving the venue all rights to all pictures you take there, and that the venue is not giving you anything in exchange. That’s what is known as “free advertising,” and it’s also asking the photographer to give up a right for free.

Can the venue stop you from taking pictures there? Unfortunately, yes. If any business or other private property asks you to stop taking pictures—including “no photography” signs—you have to comply, or the owner can have you removed from the premises. This, of course, would likely put the venue at odds with your client, who is also the venue’s client.

Consider the venue in question. For a small restaurant that occasionally hosts events and who may want to repost pictures of the event on its social media pages, you might feel generous. For a large and organized corporate venue that may have a complex and expensive advertising presence, and that may use your pictures for years to come, giving them the right to your copyrights outright may be more of a rip-off.

It’s important to have a contract between you and your clients that includes a limited use clause, which would strictly prevent them from passing on the images to the venue. That protects you in case the venue decides to bypass you, the photographer, and ask your clients for images instead. Your clients would be liable to you for breach of contract, and the venue liable for copyright infringement.

There is more to consider here, however, so read the full analysis from our legal writer here.

The Dangers of Including a Satisfaction Clause in Contracts with Photo Clients

A satisfaction clause goes something like: “If customer is not fully satisfied, photographer will give a full refund.” Essentially, it’s a provision in a contract that gives one party a subjective choice of whether to perform, and if your client decides that they did not like your photos, a satisfaction clause in your contract does not oblige them to pay you. No court could force them to pay, either.

Avoid satisfaction clauses in your contract. Instead, include a non-satisfaction clause or an aesthetic disclaimer, which states that the customer is aware of the artist’s personal style and portfolio and waives any right to refuse payment on the basis of dissatisfaction with the end result. While powerful, the clause has its limits. If you advertise products of a certain level of quality, competence and craft but deliver products that are amateurish and sloppy, your non-satisfaction clause will not protect you from fraud claims.

You could also include a revisions schedule in your contract, which simply details what happens if the customer isn’t happy. It usually states that if the customer has specific complaints, the professional is allowed two to three chances to fix them. It is important to limit how many chances you get, or else the customer can keep you in a never-ending loop of revisions. After that, if your client still isn’t satisfied, they can get a partial refund but must still compensate you for your time.

Read more about the satisfaction clause and its workarounds here.