A question that we receive at APA regularly goes something like this: I shoot predominantly real estate with a basic contract and would love to hear more about how established architecture and interior photographers went about creating and modifying their contracts.
You’re not alone. Many of the real estate photographers I know wrote their agreement themselves or adapted it from examples from a web search. Their decision to use any written agreement at all often came as a result of being burned one too many times by unauthorized image use or a no-show or non-paying client. While it’s not ideal to just use something you found on the Internet without at least running it by your own attorney, the terms and provisions in a real estate photography agreement are generally straightforward and repeatable, so RE photographers usually manage to get by with it.
The problem is, most don’t give a second thought to an agreement for other types of photography until approached for commercial work. Then it’s a mad dash to scrape together something that covers the more complex and extensive scope of the prospective job. Usually, the progression starts with, “Maybe I can just find-and-replace the real estate words into something different,” and ends with, “Screw it, I’ll just go without a contract this time and have one ready for next time.” And so it goes, until you have a dispute or dissatisfied client. Except this time, instead of a single real estate agent, you’re dealing with a company with an entire department full of big scary lawyers who use terms like “implied warranty” and “gross negligence.” Having a proper contract doesn’t just help ensure you get paid. It is a critical part of managing relationships with your clients, setting expectations, and shielding yourself from undue liability.
DISCLAIMER: I am not an attorney and nothing in this article should be construed as legal advice. The topics and content outlined in this article are meant to provide talking points for a conversation between you and your attorney. Some or all of the topics discussed here may not pertain to your individual circumstances, and the information is provided without warranty or guarantee of any kind.
Real Estate vs. Commercial
There are many ways that real estate photography agreements differ from commercial contracts. Your usual real estate contract will probably fall short when working with commercial clients. The same can be true if you conduct a real estate photo shoot and are later approached for third-party licensing opportunities. Because the licensing language will be more specific and will relate to ongoing usage, rather than the relatively finite timeline of listing a home, you need to be ready to respond timely to those opportunities. “Commercial assignments” include any assignment in which the intended use of the final images will be commercial in nature, which can range from builders, architects, designers, and other local/independent businesses to international hotel chains, ad agencies, and large brands. Technically, real estate photography meets this standard, but for our purposes, it makes sense to disambiguate it from other types of commercial work. Let’s examine a few of the differences between typical real estate photography contracts and commercial agreements.
Length and Complexity
Among those who use a written agreement (as we all should), there seem to be two types of photographers out there. The first wants to keep things short and simple and has the client sign a one- or two-page form that outlines the terms of service and basic protections for both parties such as limitation of liability and artistic license. The other provides a hefty packet of verbosely worded paragraphs that makes a “thud” sound when it lands on the table. Neither approach is inherently right or wrong, but there are pros and cons to each, as well as a time and place in which one school of thought might be more effective than the other.
When drafting an agreement, it’s important to consider the complexity and risks of the work involved. One of my real estate agent contacts once said the California residential listing agreement “used to be a single page. It’s now about twelve pages long. Every paragraph after the first page was added because someone got sued over that issue.” But while real estate agents are used to long agreements, their relationship with a homeowner may last more than six months and the stakes are generally very high in the event of a dispute. A 12-page contract makes sense for a property listing. In contrast, if you are unable to collect on a $500 real estate photoshoot because some obscure one-off situation was not mentioned in your agreement, does that justify having to take the time to explain a dozen pages of terms to your client, or the possibility that they will be too intimidated to work with you?
There’s also the fact that you want the client to actually read the agreement. To download a $0.99 song from the iTunes Store, you have to agree to terms and conditions exceeding 50 printed pages’ worth of text—which no one actually reads. But as a major retailer with billions of dollars in assets that could become subject to all kinds of litigation, Apple is likely less concerned with your reading and understanding all the terms, and more concerned with the fact that, even if you don’t read them, you are still bound by them. The typical consumer will simply download and play the purchased content. On the rare occasion, someone decides to mass-produce bootleg copies, or sues Apple, claiming the downloaded song corrupted their computer and erased their memoirs, will be summarily referred to the terms and conditions they agreed to as a condition of downloading that content.
Our concerns as photographers/small businesses are different. While we certainly want to protect ourselves by way of the agreement, the best way to do so is to be clear and concise, ensuring the best possible client experience. The agreement should be a palatable length for the client to commit to reading and understanding the terms. Handing a set of terms and conditions to a real estate agent that rivals the length of their property listing agreement is not likely to engender much interest on their part in actually reading the terms. If they fail to read the terms and then unwittingly violate them, we are likely still protected, but potentially at the cost of our relationship with the client. Image use illustrates this problem perfectly. Consider this all-too-frequent scenario (I chose this one because it seems to happen to someone almost every day):
- Real estate agent signs lengthy terms and conditions stating they won’t give photos to anyone (but hasn’t actually read all the terms)
- Agent gives copies of photos to their client, the builder, unaware that they are violating the terms of the agreement
- Builder publishes the photos on their website, which you later discover
- Your attorney sends a demand letter to the builder on your behalf, along with an invitation to settle the matter prior to litigation
- Builder calls your client (the agent) asking, “WTF?”
- Agent calls you, upset that they are now placed in the position of mediating a dispute between you and the builder
Who’s in the right and who’s in the wrong in this instance? Well, it depends on how you look at the situation, and it’s not best expressed in terms of “right” and “wrong.” On one hand, you delivered terms and conditions to the client that specifically prohibited them from providing your images to third parties, so you could say that the client violated those terms and therefore pursue litigation against the builder (who will probably never work with your client again, which means your client will probably never work with you again). On the other hand, you buried this important issue among a dozen pages detailing what happens if the photoshoot occurs at a bright pink house on a Tuesday while Mercury is in retrograde. Ultimately, it is possible for a contract to be fully enforceable from a legal perspective and yet completely ineffective, if not harmful, from a client relationship perspective. It is incumbent upon us to anticipate events that require action on the part of the client (in the above example, a completely foreseeable situation) and factor that into the structure of the agreement in order to avoid a dispute in the first place.
Commercial agreements tend to be more complex than real estate agreements. Chiefly among the reasons for this is that both the work and the relationship with the client are often more complex. The preparation, process, and deliverables will be diverse and custom to each assignment, which means the potential for a misunderstanding or dispute is greatly amplified. This necessitates clearly-defined terms that employ foresight into common scenarios the parties may encounter. It’s also more common in commercial work for multiple entities to participate in the process, whether by way of a cost-sharing agreement or the involvement of an agency. These relationships and their consequences to the assignment should be defined in the agreement. What happens in a cost-sharing agreement if one client is pleased with the final images but one or more of the others isn’t? Who at the agency is responsible for approving the finished product and/or raw images captured on set? What happens if the agency’s client does not approve the final images and insists on a re-shoot? These are all questions that should be answered in the agreement.
It’s also common for seemingly simple requests or scope changes to add complexity and potential liability to the assignment, which should be preemptively addressed in the contract. Let’s say the client wants a model to appear in some of the images for the photoshoot, which raises many questions:
- Who is responsible for searching for, booking, and/or paying the talent? (This may also affect whose insurance responds in the event of an accident on set)
- Will there be hair/makeup? Fashion/prop styling? Craft services/meals? Who pays for that?
- Who is responsible for drafting and obtaining a signed model release?
- Who is responsible for directing the talent and approving the captured images?
That one change adds a surprising amount of complexity to the assignment, and necessarily to the agreement as well. Aside from whose responsibility it is to book and pay the talent and other services, it should be defined what happens in the event one or more required elements (e.g., the model) fails to be present for the shoot, or fails to meet the client’s expectations. Whether the shoot needs to be rescheduled or you choose to proceed with what you have available, it is imperative that you outline what will happen next, including any additional fees that might be incurred on the part of the client.
Emphasis on Usage
When shooting real estate, the intended usage of the images is usually fairly straightforward. The agent will publish the photos as part of the listing, at which point they will be syndicated to third-party sites like Zillow, Redfin, and Realtor.com. If the property is celebrity-owned or particularly noteworthy, you might have to address requests for usage in the media, but when it comes down to it, the typical real estate usage license reads something like, “the client can use the images for any purposes related to selling the home and for the client’s self-promotion thereafter.”
Usage from commercial shoots is much more specific and can be quite complex. The scope of usage should be clearly defined at the outset of negotiations. Let’s say you are asked to photograph a franchise hotel location. The necessary usage seems fairly straightforward, right? Not exactly. It won’t just be “Local ABC Hotel, LLC” that wants access to the photos. The franchisor/parent company will likely want to feature the images on their website, whether as part of their directory or booking system, or possibly as a hero image on their landing page (on their own, these are two different usage categories, by the way). The images will also be uploaded or syndicated to TripAdvisor and other hospitality booking sites. Whenever a third-party organization books a convention, festival, or retreat at the hotel, they will likely want to send emails to their attendees showing them how amazing the property is. What if a stay at the property is part of a prize package for a contest or game show? Your images might be featured on national television. All of this is great if you’ve built that possibility into the license agreement ahead of time, but when a local hotel approaches you and says they just need simple and cost-effective photos for their website, it is rarely that simple, and the onus is on you to provide a contract that considers these scenarios in a way the client understands.
Line Items on the Estimate
Because the estimate is so closely intertwined with the contract, it’s important to consider differences between an estimate or invoice for real estate photography versus commercial work. Actual pricing is beyond our scope here, but having a basic awareness of these items will help you not only price yourself fairly, but will create a stronger integration between the estimate and the agreement that supports it.
With real estate, agents typically prefer a simple estimate or invoice, in which the creative fee for photography covers everything from start to finish (notwithstanding other services requested). Your work capturing the images, the equipment you use, post-production work, file delivery, and the usage license—everything that’s needed to get the job done. In part, this is because the available services, necessary steps to provide those services, and the intended usage and deliverables remain consistent from one shoot to the next.
Assignments for designers, architects, and other local businesses often benefit from some simplicity in the estimate and invoice; however, post-production and usage are typically listed as separate line items from the creative fee itself. Larger commercial assignments can be much more complex, because the time spent and costs of all stages of production will likely vary from one shoot to another, and when changes occur to the scope of the assignment, it makes more sense to update a couple line items than to have to completely recalculate a single total. Depending on the scale of the assignment, there will also be additional expenses incurred that the client should expect to pay for. These might include photographer travel expenses, fees for scouting days, assistants, a digital tech and workstation, catering, and other expenses relevant to the photo shoot. For larger assignments, even if you are supplying equipment you already own, it is customary to charge for specific equipment rental, as the specialized nature of larger and more complex assignments may require equipment that a photographer is not regularly expected to own. All of these fees and costs are typically itemized on the estimate.
Key Elements and Terms to Include in Your Contract
Whether you’re updating your existing agreement or starting from scratch, it can be a very daunting process. A contract doesn’t have to be jam-packed with legal language in order to be effective, but there are some “terms of art” that have specific meaning in law, so invoking them in an agreement will have a specific effect. In order to ensure your agreement functions as intended, it’s often best to start with some kind of template. A simple Internet search will reveal countless free options, and I know of at least half a dozen photographers, some of whom are also attorneys, who offer their own contracts for purchase. However, one size does not fit all. Laws vary significantly between states/provinces and countries, and as I previously mentioned, some contract templates will be much more verbose and intricate than others. If you’re detail-oriented like I am, you’ll drive yourself crazy comparing the semantics of otherwise identical clauses between example agreements and searching for the “one right answer.”
For this reason, whether you are attempting to draft an agreement from scratch or working from a purportedly “ready-to-go” template agreement you’ve purchased, even from an attorney, I highly recommend working with your own attorney to refine and customize the contract for your legal jurisdiction and needs. For example, some states give special meaning to semantics like “deposit” vs. “retainer” (the former potentially being considered always refundable, invalidating any cancellation/no-show clause you might have). Other jurisdictions have requirements for the placement of initials and signature of the parties that, if not met, may invalidate the entire agreement. If your agreement or any of its terms are found unenforceable in court, the potential losses in the event of a dispute are significant. It’s worth the time and expense to involve an attorney to ensure you are well-represented in the agreement.
That said, I don’t personally advocate for engaging an attorney for this purpose without first providing them a template to start with, or at least an outline of the terms you think you want/need. Attorneys are excellent at protecting their clients, but left to their own devices, some have a tendency to be a bit aggressive, resulting in the agreement sounding more adversarial than collaborative. You must remember that the contract is part of your relationship with your client, and the language used in the agreement contributes to the client’s overall experience working with you. It should read less “I’m okay, you’re an asshole” and more “I’m okay, you’re okay—we both know we’ll enjoy working together but just in case things don’t go well, here’s what happens.” I believe it is entirely possible to convey the necessary terms without sounding as though you and the client are already in a dispute.
Creating Your Contract
Whether you choose to begin with a free template or a paid solution (or start from scratch, though that seems unnecessary), you’ll encounter a few of the same terms throughout, some of which may be expressed differently but have the same overall meaning. Some agreements will be longer than others, and some may use particularly formal language. Make sure you fully understand the gravity of any terms you intend to include (this is where it’s helpful to involve an attorney). Here are a few commonly included terms and talking points to discuss with your attorney. This is by no means meant to be a complete list and your situation, as well as the laws in your applicable jurisdiction, may vary.
Booking and Cancellation
- Scope of work – you can list the work to be performed directly on the contract, but many people prefer to include it in a separate estimate that is signed by the client—discuss your preferred workflow with your attorney so the proper language can be used.
- Retainer and liquidated damages – a clause used to agree ahead of time on an amount to settle a dispute that might be otherwise difficult or even impossible to calculate. For example, if a client cancels a photo shoot at the last minute, you not only miss out on the revenue from that photo shoot, but also the revenue you could have otherwise obtained by booking another client. Some jurisdictions mandate that a “non-refundable deposit’ is always refundable if the service has not been provided, even if the client simply cancels the shoot without notice. In an article about the significance of a deposit versus a retainer, Rachel Brenke discusses how a liquidated damages clause can provide you with even more protection in such scenarios.
- Cancellation/postponement – client’s duties in the event they need to cancel or postpone the photo shoot. May include time limits on cancellation, who pays for expenses, what happens to the retainer, etc.
Creative Control and Delivery
- Artistic license/manner and method – provides control to the photographer in terms of making creative decisions (or designates that the client is bound by approvals made by their representative on set).
- Approvals and revisions – defines who is responsible for approving final images, how revision requests are handled, and usually provides a cutoff date by which work not specifically rejected by the client will be deemed approved.
- Delivery – this is often mentioned on the estimate, but if not, it’s worth clarifying the expected method of delivery and the limitations on the photographer’s responsibility to deliver images beyond a specific resolution or format.
- Archival – the client is responsible for downloading and archiving all work as licensed and photographer is not responsible for storing or maintaining access to images after a certain amount of time.
- Limitation of liability – sets an agreed maximum for the photographer’s liability, typically regardless of circumstances.
- Force majeure – defines what happens in the occurrence of events out of your control that may prevent you from fulfilling your end of the agreement, such as severe weather or illness (or, I don’t know, a global pandemic).
- Indemnification and hold harmless – two similar but distinct terms. Indemnification means one party must defend and pay the other party’s legal fees or settlement/judgment (for example, you are sued by a third party because your client used one of your images in a way unflattering to that third party—if your client indemnifies you, they defend you in that matter). Hold harmless basically means that one party agrees not to hold the other liable in a given circumstance. It is common to see both of these terms in the context of retouching or other digital manipulation requested by the client.
- Releases – clarifies that if no property, model, trademark, or other release is provided, no release exists and it is the client’s responsibility to obtain one if needed.
- No warranty – basically, photographer makes no promises, express or implied, beyond those made in the agreement.
Copyright and Licensing
- Copyright ownership and rights – clarifies that the photographer owns the images and no rights are granted or transferred other than those specified in the license. Usually advisable to specifically state that the work is not a Work Made for Hire.
- No license without payment – restricts the client from making use of the photos without payment in full (this is particularly important because it may mean the difference between an infringement claim versus simple breach of contract in the event of a dispute).
- Photo credit requirements – defines situations in which a photo credit is required and sometimes provides for specific dollar amounts owed the photographer in the event the credit requirement is ignored.
- License – the specific license terms and rights granted, which may be best presented as an addendum or separate document (check with your attorney).
- Embargo – a limited period of time during which the photographer agrees not to publish the photos themselves, usually a finite number of days after delivery or days after the client makes first use of the photos, whichever comes first.
Fees and Payments
- Payment schedule and due dates – include how expenses for the shoot will be handled (such as model commissions etc.), who is responsible for paying, and what happens if payments are not made on time.
- Scope changes and additional fees – the client agrees that the estimate is based on the requested scope of work and deliverables, and that changes to the terms may result in additional fees.
- Overtime – in case the photo shoot runs long and you have to pay overage to an assistant, model, stylist, or venue.
- Re-shoots – who pays if a re-shoot is necessary.
Dispute Resolution and General Terms
- Disputes and ADR (alternative dispute resolution) – defines mandatory or voluntary methods of resolving disputes to avoid formal litigation, usually specified as mediation and/or arbitration.
- Choice of venue/governing law – the parties agree on a specific legal jurisdiction where any disputes will be resolved.
- Severability – states that if a portion of the agreement is found to be unenforceable, the rest of the agreement remains intact.
- No waiver – if a party decides only to partially enforce or not enforce a provision of the agreement, that does not affect their rights and remedies going forward.
- No assignment – the parties cannot assign their rights or responsibilities under the contract to anyone else unless agreed by both parties.
- Integration – the agreement (and if applicable, the separate estimate) constitutes the entire agreement between the parties.
- Modification – defines circumstances under which the parties can agree to modify the terms of the contract.
- Warranties and representations – describes anything that the party making such warranty or representation promises is true, that if later found not to be true, could result in liabiity for that party. One example might be that the client warrants or represents that they have secured the necessary permissions for you to photograph and publish said photos of the property or venue in question.
If You Don’t Send an Agreement, They Will!
In Best Business Practices for Photographers, author John Harrington cautions that as a photographer, you should be the one to send your contract to the client—not the other way around. There are several reasons this is not only imperative, but also creates a better experience for the client. When a client sends you an agreement, it is more than likely a boilerplate independent contractor agreement drafted by their corporate counsel for use in virtually all vendor relationships. These standard agreements are usually not built with photography in mind and fail to address many critical terms. Because the lawyers who draft these agreements are hired to protect their client’s interests, not yours, many client-supplied agreements will include copious forms of protections for the client, but none for you. Further, because many corporate attorneys are not used to working with photographers, they will commonly write in an unlimited exclusive license or a copyright buyout, which you will then have to send back to them for revisions that will usually involve several rounds of pedantic back-and-forth discussion about the use of “shall” versus “will.”
Sending your agreement first provides a better starting point should any revisions need to be negotiated. It’s usually not possible to seamlessly merge two separate agreements, so you will likely end up working from yours to start with, which ensures the client has the opportunity to request revisions as needed, but that you are fairly represented. Be proactive and send your agreement promptly.
Don’t Sweat It
As I write this, I can feel some of you gritting your teeth as you dread the notion of poring over and dissecting numerous contracts, trying to extract usable phrases from each one (while wondering if such clauses are even enforceable in your state). But don’t despair. As I’ve previously mentioned (ad nauseam), your individual jurisdiction, workflow, and needs will determine the best contract language for you. This is why I recommend involving an attorney in the process of constructing and refining your standard contract. Do not lose sleep over this. Don’t worry about “perfect” for now. Review existing resources, highlight (or even physically cut out) terms that you’d like to see in your own agreement (perhaps even some references from this very article), and provide a [very] rough draft or even a simple series of potential clauses to your attorney. There are many subtle intricacies embedded within a proper contract that your attorney will be well aware of and be able to reconcile between the example terms you provide and the intent (and jurisdiction) of the final product.
Think of your contribution as papier-mâché but with words. Pick and choose what resonates with your business model, and rely on your attorney to fill in the blanks and transmogrify everything into something that will protect and enhance your business (and then educate you on what the terms specifically mean). As professional photographers, we are constantly compelled to advocate our worth and extoll to our clients the virtues of working with a professional. Why on earth would we then attempt to circumvent their influence in defining a critical element that affects not only our client relationships, but also, potentially, the financial health of our business? Having an iron-clad agreement produced by a qualified professional allows you to spend less time in negotiation and worry, and more time creating images that not only cement your current client relationships, but propel you to the next step of your career.
Are there any terms in your own agreement you simply couldn’t do without, or that have saved you in the event of a conflict? Let us know in the comments below.