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.
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.
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.
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
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.
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.