Experiencing Cancellations? Now Is the Time to Strengthen Your Photography Contracts

Experiencing Cancellations? Now Is the Time to Strengthen Your Photography Contracts

In the wake of what the World Health Organization has declared a pandemic, meetings of all sizes are being canceled left and right. Unfortunately for many of us photographers, these cancellations are delivering a big hit to our businesses.

One tool can provide you some protection against losses from cancellations and other adversities: a good contract.*

As small business owners, our contract is our first line of defense against errors of all kinds. These include general misunderstandings, forgotten obligations, differently understood deadlines, file format, and payment expectations, and so on.

Risk is, of course, inherent in any business. And while many of us work proactively to avoid disaster, few industries are fully risk-proof. In the face of our current economic downturn, mass cancellations of meetings and other pressures, the question on many photographers’ minds right now is "how can I protect my business?" Start with your photography contract.

*Author's note: This is an opinion article and does not constitute legal advice. If you have questions about legal matters, please contact an attorney.

Proofread

How long has it been since you've carefully proofread and updated your standard agreement on photoshoots? If you use a cookie-cutter contract in which copying and pasting a client's name is the only change, I suggest reading it over now. Thoughtfully scrutinize each clause, making sure that your terms and conditions are protecting your business.Tighten up loose ends. Anything that reads as ambiguous or open to interpretation should be clarified with clear, definitive language. The last thing you want is a conflict with a valued client because your contract wasn't clear enough on a crucial matter.

Clarify Expectations

Some clients will come to you with all the details of what they need or expect from your service. Once those terms are either negotiated or successfully met by both parties, the contract should then be edited to reflect those specific agreements.

Other clients, however, have no clue what to anticipate in working with a photographer. They defer to you the responsibility to define important policies and answer any questions or concerns. Especially when working with a new client, I prefer to clarify my basic expectations in the initial phone conversation. I then later state them in a contract that goes into further detail on all of my company's policies and working terms.

Whether or not your client is clear on expectations, I suggest being protective and vigilant by stating, when appropriate, your own policies. If the client has their own version of a contract, there's nothing wrong with crossing out clauses that don't meet your own guidelines and politely sending it back for review. This might seem stubborn, but it is common practice among well-managed businesses. The key is to be courteous and diplomatic when negotiating contract terms. Should disagreements arise, your attitude makes all the difference.

a man and two women have an office meeting

Image by the author.

If a client asks you to sign their contract, you could technically sign their agreement with the stipulation that the client agree to additional terms of yours, but that’s less than ideal. In other words, you could have two contracts in place, assuming that none of the clauses in either contract conflicts with the other. But it makes more sense to negotiate terms of a single contract, back and forth, until both parties are satisfied. This would make for a much simpler case if, heaven forbid, disagreement ever leads to a lawsuit.

Don't overlook important details of each contract you propose, especially for unique jobs like event shoots. Make sure your current standard agreement has clear expectations on such important matters as:

  • Shoot times and overall process
  • Turnaround time
  • Image size and file format expectations
  • Usage licenses, copyrights
  • Proofing and ordering
  • Pricing, sales tax
  • Cancellation fees and refunds

Cancellations, Refunds

Refunds and cancellations are of utmost importance right now, since events canceled due to the COVID-19 outbreak are having a serious impact on the photography industry. Your cancellation and refund policy should reflect what you feel is fair to both you and the client.

For instance, you might deem it unfair to charge a cancellation fee or withhold a refund for "acts of nature" or other involuntary circumstances, and your contract might explicitly state that. However, you might stipulate that a portion of your deposit is nonrefundable. This way, you haven't lost out completely on a date that was booked up, especially if the cancellation was a voluntary choice of your client (bride and groom broke off their engagement, a client sold their company, etc.). How much of your service deposit is nonrefundable — some or all — is a negotiable matter.

The language in your agreement regarding refunds (or anything else, for that matter) is crucial to protecting you in the event of a lawsuit. Ex-attorney and photographer Jeff Guyer wrote an excellent piece on this subject on DIY Photography, which I found well worth reading. Without going into legal detail, simply stating that “your deposit is nonrefundable" is apparently (according to Guyer's article) not sufficient for most courts, and most often results in a ruling against the photographer.

Solicit Help

If you aren't sure where to start in drawing up a proper photography contact, there are several online resources that can help you. If you're unsure about the viability of your current standard contract, a contract attorney is, of course, your safest option (but also tends to be a pricey one).

Since you know your own business best, you should start by proofreading and editing your own agreement. Reviewing it carefully, you might be alarmed to discover errors or crucial missing details requiring correction.

What have you done in the past to make your contracts better serve your interests? Please share your most important contract policies in the comments section below.

Lead image by edar from Pixabay.

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13 Comments

Tony Clark's picture

I stopped using the term "deposit" years ago and replaced it with "retainer" to hold a date or dates on potential projects.

Scott Mason's picture

That makes sense. Have you seen any difference between using the two terms, or are you lucky enough that they've never come up?

Tony Clark's picture

No, by the time a client signs the estimate they're ready to move forward. I suppose if a weather delay happened, I would be flexible but I've been lucky up to this point.

Lenzy Ruffin's picture

Nonrefundable "scheduling fee" is what I use. They are paying for me to block time on my calendar. Once I block that time, they have received what they paid for. I haven't had to go to court over this, but this is what I've been advised will hold up.

A "deposit" is money submitted for services not yet rendered. With a "scheduling fee," they immediately get what they paid for.

I wouldn't hold anyone to that under these circumstances, though. I would just do an indefinite postponement. If someone really wanted their money back, I'd give it to them.

Edward Blake's picture

Now is the time to be grateful I never became professional and watch the industry collapse.

Kirk Darling's picture

We just had a webinar with PPA lawyers yesterday that provided more information regarding this particular situation. Mandatory bans by local governments may count as mitigations (force majeure) in favor of either the client or the photographer, depending on exactly how the contract is worded.

For instance, if the city has banned gatherings of 50 or more and a bride decides to push ahead with a small wedding in her back yard, is a 65-year-old photographer still required to attend attend? He may or may not be able to beg off, depending on exactly how his contract is worded.

Or if the bride planning a huge wedding is forced by that same city ban to postpone her wedding, does force majeure work in her favor to force the photographer to return that retainer, despite the wording of the contract...particularly when this situation makes it unlikely the photographer would have had any other engagement? It might--a lot of courts frown on businesses making "money for nothing" windfalls.

There really isn't a bulletproof way to write a contract that covers such an unusual situation. It starts to depend on photographers working with clients to retain their business into the future. That bride is probably still going to get married eventually.

Scott Mason's picture

There's a lot of good info here from your PPA meeting to ponder. And I agree with the last statement: as hard as the current situation is, many of our clients are postponing the events, not canceling them outright.

If we act cordially and fair to clients when the sh*t hits the fan, they will come back to work with us again. That might even entail the following year's conference or music fest.

Tell me this article is a joke. Should you be entitled to revenue with many cancellations that take place? Absolutely! Should you be entitled to cancellation revenue under the current circumstances? Maybe some instance possibly... but in general? No way.

Show some respect for your customer base, please. Most all of them are cancelling due to corona, nothing more, nothing less. Don't turn it into a money grab.

Johnny Rico's picture

Seriously, this is one way to earn yourself a bad reputation when this is all said and done. Is it worth it try and bilk people when they are down over a small percentage of what your normal profit is.

Christopher Smith's picture

Couldn't agree more. The small percentage of customers who might take advantage of this situation to try to renege on their year+ out contracts surely pales in comparison to the rest.

Darren Loveland's picture

The biggest issue I'm facing right now is finished work from the past 2-4 weeks with invoices already delivered upon not being paid. Clients are literally just not responding. I get it, everyone is tense and concerned about their own finances, but not paying vendors or at least communicating is shady. It's a tough balance, I wan't to be firm and collect, but I also want to maintain a positive working relationship to keep the client after this situation passes.

Scott Mason's picture

I'm so sorry to hear about the ghosting clients, Darren. I wish I had the solution to that, but the one thing that's worked for me has been persistence. This situation, however, is unique.

Darren Loveland's picture

Word amigo. Luckily some of the larger projects are being caught up on now, might be awhile to collect entirely though. Shockingly I'm still getting requests for work, which I'm trying to accommodate with extreme caution.