This is another view-from-my-office photo.
Yesterday I was exchanging e-mails with a photographer who shot a commercial job two months ago. The photography has been completed, the photos have been delivered, and the customer has paid. Two months ago. His customer is using the photos in transit ads. The photographer asked if he should now charge more for this usage.
My first question was, “What does your contract say?”
“I don’t have a contract,” wrote the photographer.
The photographer said he didn’t use a contract because he assumed the photos were going to be used only on the company’s web site. Why did he make this assumption? Because last year he shot a job for the same company, without a contract, and those photos were used only on the company’s web site.
If you just give photos to a customer without any paperwork, what do you expect to happen? Is the customer supposed to guess the terms of use? Will you go back to the customer and say, “Oops I made a mistake. Can you give me more money?”
I’m not a lawyer but you can’t impose a contract after the work is done. You can’t change your price after the customer has paid.
There might be one saving grace for this photographer. If there is no contract stating otherwise, then the copyright belongs to the photographer. This photographer could claim that advertising use isn’t permitted because it wasn’t specifically allowed. Of course, it also wasn’t specifically denied. Nothing was discussed or specified by the photographer. If push came to shove, the photographer would probably prevail but they would most likely lose that customer.
Contracts Help Stop the Rain
If you do retail photography, most provinces legally require you to have a written contract. Check your province’s consumer protection laws which should indicate what information must be included in a contract.
Commercial photographers must use a contract with their customers. Without a contract, a business customer can’t legally use your photos. You must grant usage rights otherwise every use is a copyright infringement. A few business customers know this but most don’t.
The purpose of a contract is to prevent misunderstandings by either party. Contracts do not have to be complicated or filled with legalese. A contract basically spells out who does what, where and when. Having a written contract is actually good customer service. You can have a verbal contract but if it starts to rain, you will get wet.
Don’t just copy a contract you find online and expect it to work for you. Your contract has to suit your business in your jurisdiction. Even then, your contract(s) must match the type(s) of photography you do. CAPIC has a generic template but this should not be used as is.
Never use a contract if you don’t understand what every word means.
You should have your contract(s) reviewed by a contract lawyer, ideally one who is familiar with photography businesses. Yes it will cost several hundred dollars. Get a group of similar photographers together and split the cost.
Free Photos Need Contracts
In the early 1990s, I did some free photos for a friend who, unbeknownst to me, had one image printed as 24″x36″ glossy posters. The friend sold +10,000(!) posters and made tens of thousands of dollars. I got nothing. Had I known the pictures were going to be commercialized, I would’ve had a contract in which I received a percentage of sales. I learned my lesson.
If you’re doing personal pictures for a family member or friend, you don’t need a contract. But if you’re doing pictures for a family member or friend’s business then you should consider a contract even if you do the work for free (actually, charge them $1). A contract may prevent misunderstandings later.
If you do free photography (but again, charge $1) for a charity, a school, a church, or any similar organization, absolutely have a contract. You want to prevent misunderstandings and eliminate your liability that might arise from any (mis)use of the pictures.
