Ask An Agent / What to do about a dubious contract?
Ask an Agent is a regular monthly column that answers all your dilemmas about the business of photography - a sort of photography agony aunt. Whatever area of the industry you are in, if you have any questions you’d like to ask please send them to firstname.lastname@example.org Dear Ask an Agent,
I'm looking for a pointer in the right direction with regards to legal contracts with clients. I've recently picked up a new client who is a large, global corporation and has what seem to be dubious T&C's on their purchase order agreements.
I was wondering if you could recommend anyone I could instruct to look into it for me?
(We decided to keep names anonymous due to the confidential nature of the subject matter).
We get ‘dubious’ contracts all the time. Often the client doesn’t mean to be unreasonable, it’s often just more of a case of them having a blanket set of business terms for all suppliers, which don't really quite fit with freelance photographers.
It’s crucial to reach a mutually acceptable agreement however as contracts are basically the legal terms upon which you do business. They establish the ground rules before you commence work and are the trading terms between you and your clients. Business terms include legally enforceable obligations which protect your rights and limit your liabilities and help to avoid any disputes as expectations and responsibilities are clearly set out from the onset in writing.
The thing to do is it to cross through on the contract the things you are not happy with, and also ask for further clarity on anything you don’t understand. Explain why you are not comfortable with them as a photographer, and suggest alternative wording, so they are more in line with your own terms of business (which I hope you have!) The person you are dealing with genuinely might not understand why certain clauses might raise concerns, it’s unlikely that they set the terms!
The usual suspects are clauses about copyright, indemnity and sometimes payment terms. Clients rarely actually want to own the copyright - i.e the right to authorise others to use the images - they simply want to know they can use the images for all purposes to do with their brand, without anyone else using them. Therefore an 'exclusive , all media buyout, worldwide, in perpetuity’ serves the same purpose. Personally I wouldn’t ever agree to indemnifying a client against third party, claims, costs or damages. And in terms of payment, 30 days is normal, 60 is just about bearable (but make sure you back date the invoice to the day after the shoot) and I wouldn’t agree to 90 days. Also if you have any out of pocket expenses on the job or are liable for suppliers costs I would advise getting these in advance of the shoot. There could well be other things that aren’t acceptable so read through the whole contract carefully. If you can’t reach an agreement, at the end of the day it’s your call whether you walk away or think the money or the job is so good it’s worth potentially putting your business at risk.
If you do need to consult a lawyer I have worked with and can recommend Charles Swan and Swan Turton. Not trying to do them out of a job but at this stage it's probably worth attempting to negotiating acceptable terms yourself before seeking legal help, we find that most clients are generally very accommodating.
Alternatively if you need more help, as part of our ‘Pop up Agent’ service we can negotiate with your client and advise you further based on our experience. We aren’t lawyers but we know the terminology and sometimes it helps coming from a removed standpoint.
Hope you reach a satisfactory agreement anyway.
(The photographer in question has since sent me through said contract to have a quick scan and, just as I thought, it was indeed asking for assignment of copyright and indemnification against third party claims, costs and damages. The wording being pretty much word for word as I read on so many business terms (including some of the social network sites) they must all just copy each other or use the same lawyer! It did indeed look like a ‘one size fits all’ contract which as I say should be addressed so it fit’s in with what’s acceptable in the world of photography. (Which is not assigning copyright and taking all responsibility for any potential and unforeseen issues arising out of taking the pictures! Any photographer that agrees to this really isn’t doing themselves or the rest of us any favours).
Please Note: We reserve the right to shorten questions due to space constraints. We reserve the right not to enter into ongoing correspondence. We reserve the right not to answer all questions. Please state whether you would like to remain anonymous. This advice should be taken as a guide only. Lisa Pritchard and LPA take no responsibility for any omissions or errors. Please seek professional legal advice should you require it.