The Legal Lens: Photographers and the Written Contract

Photos by Sam Lewis

By Al Diaz 
aldiaz@aol.com 

As a Miami Herald staff photographer I've had a limited need to learn about the legal aspects of the business of photography; contracts, copyright, sales and marketing. Bottom line, the Herald owns everything. 
    
Until recently the only legal concerns I’ve had is knowing my civil rights while photographing in public places, or how to avoid arrest while doing my job covering a fire, riot, armed conflict or a simple traffic accident. 
    
With the state of the newspaper industry I have job insecurity. Hoping for the best but preparing for the worst I spend my spare time building my webpage, tweeting, blogging, branding and basically getting ready for the future. 

Now that my social media is up a running I need to educate myself on the legal side of running a photography business. 

It’s time to ask my friend Sam Lewis a few legal questions and how to protect myself while pursuing our profession.  In addition to being an attorney, Lewis is a professional photographer who interned at the Herald a few years after I joined the staff there.


The Legal Lens will be a monthly Q&A with Lewis on all legal aspects of photography. 

If you have questions or suggestions for this feature, please e-mail them to AlDiaz305@aol.com or SLewis@ImageReflex.com.

Sam Lewis

The Legal Lens 
With Sam Lewis
SLewis@FeldmanGale.com

Q. Let’s take a few minutes to talk about contracts.  Why should photographers use written contracts?

A. I encourage all clients, especially photographers, to use written contracts.  When it comes to creative endeavors such as photography, written contracts can play a vital role in managing client expectations, which in turn protects photographers from the sort of claims that a dissatisfied client may assert. Click here for an example 

Even where a photographer has a good working relationship with a client, a written contract can be a useful and effective tool for clarifying the scope of a job to be done, 
and ensuring that everyone knows where they stand if for some reason things go wrong.

Q. Are there certain concepts that should be covered in a photographer’s contract?

A. The concept with which most photographers will no doubt be familiar is that of usage and compensation.  The agreement should clearly detail any usage terms, and where appropriate, who will own the copyrights to the images; the compensation should also be detailed. Where possible, the contract should include any details of the job that are known, and who will be responsible for various tasks that may go along with the job.  For example, who will be responsible for engaging any models or makeup artists, obtaining model and property releases, securing permits, etc.?  Addressing these sorts of issues up front goes a long way towards avoiding a problem on the day of the shoot.

The contract shouldn’t stop there.  It should also detail how disputes will be resolved, whether there are any limitations on the photographer’s liability, etc.  For a further discussion of what should be included, see my article published in the November 2009 Digital Photo Pro magazine, “Get It In Writing:  A lawyer’s secrets to better contracts”

Q. Some organizations like ASMP or PPA offer form contracts for their members.  What are your thoughts on those contracts?

A. Using a form contract is probably better than nothing, but you’re far better off using a contract that is tailored to your business and where you work, and has been prepared or reviewed by an attorney familiar with the laws of the state in which your business is based.  Since contracts are typically governed by state law, and issues such as limitations on claims can vary from state to state, it is a good idea to spend some time with a local lawyer who is knowledgeable about such issues.

It is also important to understand the legal ramifications of what is contained in the agreement, and this applies equally to form agreements and customized agreement.  Some of the form contracts include provisions that may have unintended consequences.  In an upcoming article slated to appear in Digital Photo Pro, I discuss some of the potential consequences of including an arbitration provision in a contract.

Samuel Lewis is a Board Certified Intellectual Property law specialist and partner at Feldman Gale, P.A. in Miami, Florida, and a professional photographer who has covered sporting events for more than twenty-five years.  He can be reached at SLewis@FeldmanGale.com or SLewis@ImageReflex.com.

Note:  The information appearing in this blog entry is not, nor is it intended to be, legal advice, and should not be construed as such.  Rather, the information is provided solely for educational purposes by providing general information about the law.  This blog is not a substitute for legal advice from an attorney licensed to practice in the state where your business is based or where you live.