Another mistake photographers make is to believe that the contract and model release are the only needed documents to safeguard a business. There is actually a timeline of the use of contracts that help aid the customer service and sales process.

Portrait Contract and Model Release

At the beginning of the client and photographer relationship is the Portrait Contract and Model Release. This governs the relationship between Client and Photographer. This will lay the foundation for sales by having provisions (if drafted right!) about completion schedules, ordering deadlines, etc.

A general rule of thumb is not to even place a client on the calendar and consider as “booked” until the portrait contract, model release and the non-refundable monies are paid to reserve the time.

A contract is THE agreement your client and photographer relationship will be built on. It has legally binding rights and obligations, which the courts can enforce. Here are a few of the major points photography contracts should include (opinion from my legal education and experience in the business).

• Specifics – At a minimum, your contract should include the specifics of the transaction. Including parties names, photographer name, monetary exchange, promised product to be given in exchange for the funds. If someone is a minor you must have their parent/guardian sign the document or else the contract is null.

• Cancellation Policy – This policy works to protect yourself/time and inform your clients ahead of time of their options if they need to cancel.  Informing someone of this policy after the fact can lead to a bad taste in their mouth and we don’t want to mess with word of mouth marketing.

• Late Policy – Same with cancellation, let clients know your late policy. There’s no right or wrong policy. Just be consistent!

• Expectations – Outline all expectations including: turn around time, guarantee of quality of product, how/when products will be delivered, how long they have to order, etc.

• Do not edit/reproduce -This section can probably go under the “copyright” section, however, I find it important in today’s technology age to break it out to emphasize importance.  Everyone has editing programs at their fingers tips…even changing a Facebook profile picture and using the crop tool constitutes editing of the photograph as it is compromising the integrity of the photograph as the artist intended it.  Many clients confuse copyright/print release (see below) and may honestly (or dishonestly) believe they have the right to edit their photographs because they are in them.  Maintaining copyright ownership and explicitly spelling this out you will be working to preventively nix any potential issues in the bud.  Further, outlining that scanning of a photograph also violates copyright law may prevent this situation.

• Copyright – This clause can release the copyright from the photographer to the client. If you transfer the copyright by contract, the photograph no longer belongs to the Photographer.  In fact, in these cases the Photographer can technically never use the photographs without permission of client! It is important to ensure there is a provision to protect your artistic property and keep your copyright intact.

• Model Release – This is a legal release that is signed by the subject (or parent/guardian) of a photograph granting permission to publish the photograph in one form or another, typically for marketing and portfolio materials. Especially true for minors.  See also: What if my client doesn’t want to sign a model release? on TheLawTog

• Substitute Photographer (Mostly applicable for wedding photographers) – This clause is imperative because life happens!  You want to be able to have a second or substitute shooter take your place in the event of an emergency. I personally emphasize this to my brides.

Read why retainers should be non-refundable.

Independent Contractor

This contract is an outlier to the client and photographer relationship as it is between the independent contractor and photographer alone but is critical to the health and productivity of many businesses. Hiring someone to assist on shoot, to provide administrative support or simply to process images can be a great load and stress off the core transaction.

An agreement with a third-party should include payment details, insurance requirements, liability indemnification, assignment of duties, confidentiality and other applicable provisions as the business model demands.

Final Sale and Cooling Off Laws

Typically the sales session will then occur, that can happen in-person or on-line by gallery or another communication method (such as phone, Skype or Facetime).

A great downfall to allowing the sales session to be complete with the receiving of money and confirmation of invoice is that many times photographers fail to realize the Federal and State “Cooling Off Laws”. The laws allow clients to cancel sale within a certain time frame from the sale.  These laws protect the consumer for sales made in the buyer’s home, workplace or facilities rented by the seller on temporary or short-term basis (hotel room, restaurants, etc.).

This Cooling-Off law still applies for clients that initiate the invitation to have the sales session within their home. The Federal is a three-day cooling off period, whereas State laws vary on timeline so always check with your local state laws.

Here is a perfect example of why the Final Sale is crucial:

Jane had a fabulous ordering session in the home of Noel and Stephanie, where they agreed to and handed over a check for a large order.

However, the sales meeting Noel and Stephanie get in a huge fight and decide to call their relationship quits.   They email Jane the next morning to rescind the sale and apologize profusely but they want nothing to do with any images that are of the both of them.

However, Jane, in all her excitement, had run home from the session and put in her order to the lab. This order had an album, canvases and other products with a high cost of goods. Because her lab is so awesome the order is already processed by the time Jane receives the email from Noel and Stephanie.

By law the couple has every right to cancel or amend their order, despite having written a check to Jane.  They had not signed a document expressly waiving their sales transaction cooling off period, therefore, Jane is required to return the monies as requested per the law and must soak up the lost cost of goods. Jane is now out hundreds of dollars cost of product that she can’t sell to anyone.

Keep in mind exceptions to the law do apply based on the circumstances of the situation. For full information on Cooling Off Laws check with the FTC and State Regulatory Authorities.

However, the Cooling Off Rules can be waived through a Final Sale document that expressly allows the client to waive any ‘cooling off’ time periods and agrees to the final sale of the sales session. This document will waive any laws that allow a client to back-out of the sale, including for buyer’s remorse!

Payment Plans

Do NOT put a roadblock to your client’s wanting to hand you money. Offer payment plans. Having payment plans available to client works wonders in a variety of ways.

First, they can be a good response to provide your client if you receive the dreaded “we want to but we can’t afford it” line.

Second, they also provide a way for clients who want to invest in you to be able to afford you without being embarrassed if they happen to not have the means.

Use this as a response to the negative client comment. Don’t let that “you’re too expensive” comment deter you.

Payment plans, also known as Installment Contracts are so much more than picking when a payment is due and how you’re going to pay. The arrangement of payment is a contractually binding relationship that should be outlined in writing, as well as understood and agreed to by both parties.

However, don’t let the fact that you’re “adding” on a contractual duty to the business relationship scare you aware. It really IS as simple as arranging time and payment amount. Before offering payment plans come up with the chosen methods of payment, how soon you want to be paid (balanced against the amount of the order) and any consequences if they aren’t.

Product Design and Delivery Agreements

Another line of defense against running into a client changing their mind is to have a product design agreement (affiliate), specifically for high dollar cost-of-good items like albums. This document safeguards against a similar situation as above by having the client approve the album proof design and put it in a legal document agreeing that they have reviewed the proof, are requesting no changes and it is approved for final print.

An accompanying document to the product design agreement is the delivery agreement. This agreement is a written acceptance of all products after the Client has had the opportunity to view them.

This is especially helpful to prevent any potential “I didn’t get X product” statements after you have delivered the complete order.

Below you will find a visual timeline of the workings of how these documents work together to keep expectations managed and protect your business.

Legal Disclaimer:

The information provided in this article is not legal advice, but general information on legal issues commonly encountered. Always consult an attorney.

Photo credit: Sarah Joy

Photography Legal Overview

Legitimizing the business

The process of setting up a legitimate business can differ depending on the state, county, and city where the business is being established. However, there are a few basic things to evaluate.

Type of Business Structure
There are a variety of business structures to choose from, such as sole proprietorship, LLC and corporation. Choosing the structure that’s right for you depends on the type of business, initial investment cost, personal choice of liability, and tax liability.

Learn more about LLC’s for photography businesses.

Sales Tax Permit
Photographers, because they sell products and services, are required to collect sales taxes that are remitted to a state government’s taxing agency. Some jurisdictions require that photography session fees be taxed for sales; others do not. Either way, a photographer is required by law to charge sales tax on products/services sold to a client. In other words, the photographer is merely working as the middleman between the client and state government.

Learn more about sales tax for photographers.

Insurance
Every photographer should have liability insurance and equipment insurance. Liability insurance safeguards the photographer’s business, especially for photographers who work with specialized clients (i.e., newborns or weddings). Equipment insurance protects the artistic tools of the business, such as cameras, lenses, laptops, etc. Investing in these two types of insurance is critical so that unforeseen circumstances don’t derail the growth of your business.

Read our guide on essential insurance coverage for phographers.

Legal forms

Get the Ultimate Portrait Contract Bundle (affiliate) which includes the below forms.

Portrait Agreement
A portrait agreement outlines the responsibilities and expectations of both parties — the photographer and the customer. The portrait agreement acts as the foundation for all photography services provided and steers the entire business transaction. At a minimum, a portrait agreement should include specifics (parties’ names, photographer name, monetary exchange, promised product/services, deposit amount), cancellation/late policy, expectations (turnaround time, guaranteed quality of product, how/when products will be delivered, etc.), and a notification of copyright.

Model Release
A model release is signed by the subject of the photography or the parent/legal guardian if the subject is a minor. This document provides the photographer with the necessary permission to take and display photographs. A model release is not an essential requirement for fulfilling a photography services contract, but it is required if the photographs are used on public mediums such as social media, websites or portfolios.

Print Release
This is another optional form needed when digital files are sold to clients. A print release is the legally operative document in which the photographer provides the client permission to reproduce the purchased digital files. The document should outline the restrictions and privileges given to the client. Note: This document does not release copyright. Ownership rights still are intact.

Copyright Notice
This isn’t required to be a separate form, as it should be integrated into the portrait agreement. But a copyright notice is critically important in the digital age. Copyright is the ownership rights to the photography produced, and copyright is retained by the photographer until the photographer contractually relinquishes ownership. A notice of copyright can be given to clients when products are delivered to remind them of federal copyright laws.

Here are some keys to think about when using legal forms:

• Get it in writing!
• Electronic delivery is a great way to be efficient and paperless. Utilize digital embedding within a website (such as using Machforms or Gravity forms) or email forms as a PDF file to the client.
• Every contract must have the proper specifics, both parties must have the capacity and intention to enter into an agreement, and the consideration (i.e., giving of money in exchange for photography services/products).
• Photographers who cannot afford to hire an attorney or purchase drafted forms should sit down and think about the specific things they want in a contract. Simply write them out. While legal forms should be drafted in a certain manner, writing out specifics of the business transaction is better than nothing.

Contract privity

Create your photography contract checklist here for free (affiliate).

Many business owners, unless they happen to have a law degree or study the law in their free time, are unaware of the “privity” of contract theory. This theory is the relationship between two contracting parties.

For example, high school seniors oftentimes are the subject of a photograph, but many are too young to legally commit a portrait contract.

The parent or legal guardian must be the signing and obligated party to the contract. The parent or legal guardian is the actual client, while the high school senior is a mere beneficiary of the contract. Therefore, any obligations to be executed — and issues that may arise — must be directed to the parent or legal guardian. Understanding the difference between subject and contracted party will help you avoid potential legal complications.

A model release must be in place for minors, including high school seniors.

Right of privacy is a big legal issue and should be adhered to and understood as much as possible by business owners, especially photographers. A model release is signed by the subject (or in the case of a minor who is a high school senior, the parent or legal guardian).

Releases typically provide the photographer with the right to use of the photographs for portfolio, studio samples and other marketing uses. Depending upon the jurisdiction, the age of “majority” varies, so it’s imperative that each business owner research this age.

If the high school senior has not reached the age of majority, the parent or legal guardian must sign the model release. Unless it is otherwise written in the contract in similar language, you are unable to use the photographs for marketing or portfolio use until you obtain the model release.

View Senior Contracts Here (affiliate)

Here are some keys to remember:

• Even when the high school senior initiates customer-photographer transaction, the parent or legal guardian should be the signing party.
• Always double check the photography model’s age prior to entering the contract.
• Don’t push out high school seniors from the process; simply remind them that this aspect is required between photographer and parent/legal guardian.

When is a model release needed?

A model release is a legal document that provides the photographer permission to publish the photograph as defined by the elements listed in the release. In the cases of minors, the model release is signed by the parent or legal guardian. For adults, the release is signed by the subject. A purpose of a model release is to provide the photographer with permission to use the photographs for portfolio, studio samples, marketing, and Internet uses.

Keys:

• Model releases can be inserted as provisions into your contract.
• These always should be in writing.
• You should always have a model release — even when working with friends and family.
• Shooting in public areas does not generally require a model release for all people in the public area. Always double check the local laws, which vary state to state.
• If you have a client who refuses to sign a model release, consider whether or not it’s worth turning down the session if you can’t use the photographs publicly.

Copyright 101

A copyright is a legal device that gives the creator of a literary, artistic, musical, or other creative work the sole right to publish and sell that work. Copyright owners have the right to control the reproduction of their work, including the right to receive payment for that reproduction. An author may grant or sell those rights to others, such as publishers or recording companies. Violation of a copyright is called infringement.

Copyright is a property right. Under the Federal Copyright Act of 1976, photographs are protected by copyright from the moment of the work’s creation. According to the U.S. Copyright Office, the owner of the “work” is generally the photographer or, in certain situations, the employer of the photographer. Even if a person hires a photographer to take pictures of a wedding, for example, the photographer owns the copyright to the photographs unless the copyright is transferred — in writing and signed by the copyright owner — to another person.

The subject of the photograph generally has nothing to do with the ownership of the copyright to the photograph.

If the photographer is no longer living, the rights to the photograph are determined by the photographer’s will or passed as personal property by the applicable laws of intestate succession.

Protecting copyright goes beyond mere ownership. Actions can be taken to protect digital art, such as uploading watermarked, low-resolution files to a website; disabling right-click saving; and offering watermarked, web-sized files to clients for their personal use.

Infringement can occur if claiming another person’s work as your own, scanning a photograph, any manipulation of a photograph, downloading sneak peeks from the web, and taking a screenshot of the gallery.

To ward off copyright infringement, it’s best to inform and educate clients from the beginning.

Provide them a contract containing the copyright information, a follow-up copyright notice and reiterate the copyright information in a print release. If infringement occurs, it’s best to approach the client in a professional manner: Cite the contract and request that all copyright-infringing actions cease. If the client fails to cease the infringing actions, there are a few options to move forward: (1) a Cease and Desist Order –- given by a judge to order a person to stop a certain act; or a (2) Cease and Desist Letter –- given by the copyright holder to the infringer.

Here are a few thoughts to remember about copyright:

• Copyright is formed at the creation of the photograph.
• Copyrights are protected by federal U.S. law.
• Educate and remind clients of copyright law and all the responsibilities they receive upon purchasing prints and/or digital files.
• Keep in mind that many clients are unaware of copyright law; a gentle reminder may serve better than a formal cease-and-desist document.

Here’s a more in depth article on photography copyright laws.

Photographer shooting rights

When a photographer hits the pavement for a session, there is a conglomerate of shooting rights outside of the client and photographer relationship to keep in mind. For the most part, a photographer can shoot anything in plain view within a public place.

This includes individuals who are in a public place while shooting. Photographers are not expected to get model releases for individuals in public areas. What an individual knowingly exposes to the public is generally allowed to be photographed free of a model release.

Use common sense in determining what is a public place. Obviously, public restrooms, changing rooms or peeking into a private home’s window are not covered under this rule.

Things get a little trickier when the property is either privately owned or is generally open to public but the owners places restrictions on photography. If a public property is generally open to the public (e.g., a restaurant) a photographer can take photographs unless informed by the owner that photography is not permitted.

If a property owner requests that photography cease, you must stop. If the owner asks you to stop and you refuse, you can be held as a trespasser in the eyes of the law once the invitation for you to be there has been revoked by the owner.

t’s better to ask permission to photograph in order to avoid legal battles or face embarrassment in front of a client. When in doubt, ask for permission.

Keys to shooting rights:

• Get permission in writing.
• Always abide by permit application guidelines and fees.
• Consider offering compensation to the landowner if he or she provides permission.
• Always have an agreement between you and the property owner that outlines the responsibilities.

Want some help to make sure you’re on the right path?

Check out legal forms that are photography specific. These are drafted by a photographer/lawyer for photographers. All come in Microsoft Word files, so they can easily be lifted for insertion into websites and contract applications — or anywhere else you need them to be! All can be customized to suit your branding and contract needs.

Legal Forms include:

• Photography specific contracts (affiliate) including portrait, wedding, boudoir, senior, newborn, birth, etc.
• Model Releases
• Print Releases
• Cancellation of Contracts
• Product Delivery Agreements
• Amendment of Contracts
• Payment Plan Agreements
• Credit Card Authorization Forms

These legal forms can be used as is, can be amended to suit your personal preference, or can be used with your own attorney as a baseline (read: reduces attorney costs).

Disclaimer: The information provided in this site is not legal advice, but general information on legal issues commonly encountered. Rachel Brenke Photography, LLC, is not a law firm and is not a substitute for an attorney or law firm. Communications between you and Rachel Brenke Photography, LLC, are protected by our Privacy Policy, but are not protected by the attorney-client privilege or work product doctrine. Rachel Brenke Photography, LLC, cannot provide legal advice and can only provide self-help services at your specific direction; Rachel Brenke Photography, LLC, cannot provide any kind of advice, explanation, opinion, or recommendation to a consumer about possible legal rights, remedies, defenses, options, selection of forms or strategies.