1. 5 Tips for Photography Contracts

    Freelance photographers of the world, I don’t have to tell you that you always need a contract. Likely, you already know that, even if you don’t consider yourself a professional, as it’s always good to be on the safe side. There are many photography legal forms available to make it easier for freelance photographers to protect themselves. Let’s take a closer look at the most important things to look at when shooting on commission.

    1. Names and contacts of the parties. This is not just required by law but can also be useful in case there is a problem down the road. Maybe you need to request special rights permissions from the client. This could happen years later, so don’t toss your contracts but keep them somewhere where you can find them later (consider saving a tree and storing them online… on Docracy, for example!)

    2. Price. It pays to divide the costs of the actual photography service from additional costs that you may charge the client, such as transportation. It’s also a good idea to list the details of the shooting. If you are an event photographer, hours and work details are extremely important. For example, wedding photographers are usually paid by the hour, but you can change that. If you go for a fixed fee, always put a cap on the number of hours you’ll stay at the location, or specify how much your overtime will cost. It is common practice for event photographers to ask for a downpayment, as that will cover your opportunity costs if the gig somehow goes away.

    3. Intellectual Property (IP) rights. As soon as the photographer shoots a photo he owns the copyright to that image. From there, the options are very broad, from complete assignment (with or without reserving certain rights such as paternity and portfolio) to a limited, non-exclusive license. The broader the license, the higher the price, of course.

    4. Limitation of liability. Life is full of uncertainties. What if somebody steals your camera? What if you fall sick the day of the wedding? Contracts are the best way to avoid paying hefty damages for things out of your control. Here’s an example of a very reasonable liability clause from the Wedding Photography Agreement above.

      If a photographer is too ill or becomes injured and cannot supply the wedding services specified above the Photographer will try to book a replacement wedding photographer. Under normal circumstances a second photographer from the Photographer is there for the day anyway and this photographer will then shoot the day on his/her own. If both photographers are unavailable and a replacement photographer cannot be found then liability is limited to a refund of any payments received. The Photographers have working methods in place to prevent loss or damage to your images. However, there is the unlikely possibility that images may be lost, stolen or destroyed for reasons in or beyond our control. In these circumstances liability is limited to the return of fees paid for the service or part thereof according to the percentage of images supplied.

    5. Last but not least, have a model release if you plan to sell the photo to third parties. A model release is a separate document from the service contract, where the model releases his/her image rights to the photographer. While this release is not mandatory, it is very hard to sell a picture for commercial purposes without it, as both the photographer and the future publisher could be sued by the model. To find out if you need a model release, and what goes in there, you should definitely read this.

  2. What’s a Model Release?

    Do you take photos? Do you want to sell, publish, and/or use photos? Model releases are useful little documents that allow photographers, publishers and photo users to have more freedom in using or publishing photos. Essentially, if there is a recognizable person in the image, a model release signed by that person will make sure you have due permission for specific uses of that image. So, if you want to be free to use people’s photos in the widest possible variety of ways, it is important to get a model release.

    When do I need a model release?

    You should always get model releases for photos that show a recognizable subject if you will be using the photo for commercial use. If you are not sure how the image will ultimately be used, it is always safer to get a release. In most cases you do not need a release to actually capture the photo.

    Having a signed release gives you permission to publish or use the photograph in some form. In signing, the model is agreeing to have their image promote a commercial purpose and that protects you from liability based on future usage of the photo.

    Releases can also inform the model that the photo is your property and allow you to be the recipient of profits from the image through allowing you to sell more freely.

    The right to privacy is the reason behind model releases. The right to privacy is governed by state law and can vary across the U.S.  This right interacts with the First Amendment which protects freedom in news reporting. Consequently, it is less necessary to have a release for photos related to newspaper articles. Courts have found that making money through commercial use is less important and therefore it is acceptable to require model releases for those uses.

    What’s in a model release?

    The elements of different model releases may vary depending on the end purpose of the image. For example, stock photography agencies, like Getty Images, have their own releases which run on the detailed and stringent side to make sure that models are giving permission for many different uses.  

    The absolutely necessary elements of a model release are 1. consideration and 2. permission to take the photo and use it for commercial use.

    1. Consideration is an exchange of something of value between model and photographer. For example, the photographer can give the model $1 or a promise to do something in the future.

    2. The model also has to give the photographer the right to shoot a picture of the model and the right to use/publish/reproduce the photo in some form for advertising.

    Of course, you can add more detail on the different levels of permission that the model is giving the photographer/publisher/end user, so that the model cannot later claim that he/she did not give permission for a certain usage.

    Let’s look at the elements of a standard model release from Docracy as an example. Bear in mind that this release is photographer/company-friendly and as such, the model waives many rights:

                                    Because she (the model) signed the release…

    What if you can’t get a release?

    You need model releases to protect yourself from lawsuits that your model may bring, such as claims for invasion of privacy or defamation. This can be very problematic if you are using the photo for advertising or other commercial uses, since courts have found that the right to privacy is more important than a company’s right to make money off of an individual’s image.

    For example, a model may meet a photographer at a gallery opening for the photographer’s work. The photographer asks the model if she would like to model for him, and in exchange she would get the photos they shoot together for her portfolio. There is no signed model release. The model assumes that the photographer will sell the photo as art, in his next show. The photographer takes photos of the model in lingerie and then sends her copies of the photos to put in her portfolio. A little while later, she sees one of those photos being used as a subway ad for a diet pill. It is clear who she is from the image and that her image is associated with that product. She can now sue the photographer or the company associated with the ad for violating her right to privacy.

    Once signed, these releases (including a reference to the photo) should be saved forever! (Hint: if you use Docracy to e-sign model releases, your signed document is stored forever in one place!).

    Do I always need a model release?

    Remember, model releases are for photos with recognizable people in them (even if the model is your best friend or grandpa). If there are people in your photo but they are not identifiable, you likely don’t need a model release. (There are loose standards for “recognizable”-ness: would a normal person be able to identify the model? By their face? Their silhouette? Their unique clothing or tattoos? Their birthmarks or scars? Their presence in the location of the shoot?)

    The photos below contain examples of unrecognizable models. A photo of a pair of nondescript hands or of blurred subjects make it impossible for the ordinary person to identify the models.

    The photo below contains an identifiable model. Even though the photo is of a crowd on the subway, the standing man is clearly the focal point of the image and the average person would be able to identify him from his representation here:

    If you’ve established that your photo contains people who are identifiable, read on!

    *There will always be exceptions to these general rules.

    Commercial use is not the same as selling a photo for profit- for example, selling a print as a work of art.  However, selling tee shirts with a picture of the image would be commercial use.  Other examples include: posters, brochures, and websites used in advertising, promotions, or merchandising.

    Other related docs you may want to look at:

    There are contracts for when the photographer is hired by the subject of the photos for an event, such as a contract for wedding photography services.

    There are also releases for different types of property- including pets!- called property releases.

    Disclaimer: This post only considers models who are adults; in the U.S. the legal signing age is generally 18, however this may vary by state. For releases for children and teens look at our minor model release.

    Image credits: From top to bottom: top, by ThatsABigIf on their blog; next, by Kembrel on their blog; next, by Farida Harianawala on her blog; bottom, by Andrew Och on his blog.

    [1] Editorial use encompasses use by TV news, magazines, newspapers or newspaper websites if they have the common goal of informing and educating. The photo should report newsworthy events, which include current events and sometimes even human interest stories.

    Some photos used in publications fall into a gray area! If the publication uses the photo for other purposes like explaining a product.

    If you are an employee of a newspaper and take a photo of a massive car accident for the paper- you will likely not need a release.  However, if you are selling a photo to a newspaper, it is likely that they will ask for a release.