I have a business mentor who constantly repeats the phrase, 'If you want peace, prepare for war'. This is never more apt than when it comes to the area of contracts.
Why do I need to sign a contract?
While in many countries a verbal agreement is a legal contract, it is very hard to enforce. The safest way to ensure an agreement is enforceable, should there be subsequent disagreements between you, is to write it down. Even an informal document, such as an e-mail spelling out what you agree to, is better than no document at all.
So if you want peace in your relationships with your employer, your clients, your outsourced partners or anyone else with whom you have a business relationship of any kind, create a contract in writing, sign it and have the other person sign it too.
Make sure there is a contract
The process of writing a contract or reading through a contract is also valuable in terms of thinking through what is expected of you and what you expect. This is the time to ask all the unasked questions, get all expectations out in the open and grapple with any misunderstandings. Signing a contract forces you to do this at the beginning of a job, a project or a relationship. That is a much better time to do it than at the point where problems arise.
So, do not be shy of asking for a contract, or even better, producing a contract right at the beginning of a business relationship. It does not need to be a heavy-handed thing. You can simply explain that in your experience, good working relationships are best maintained if the expectations of both parties are clarified up front and so you would like there to be a contract in place prior to starting the work. Do not shy away from this because of embarrassment or because you feel disempowered. This is the very reason you need a contract in place that governs the relationship and keeps you on good terms with each other. It also greatly reduces the potential for misunderstanding.
So always make sure there is a contract!
Always read contracts before signing
Likewise, if someone presents you with a contract, read it. Never, never, never sign a contract without reading it. If you are being put under pressure to sign, do not. Ask for more time. Any person you want to be doing business with will give you the time. If they do not, walk away! Signing a contract you have not read is an absolute no no! You could be signing away your entire life's work.
The American Society of Media Photographers (ASMP) has an example of a bad contract on their web site, the likes of which you do not ever want to end up signing. You could end up signing such a contract if you do not read the paperwork placed in front of you.
And in reading a contract, do not be afraid to change clauses, cross others out, rework others and so on. This is your contract just as much as it is the contract of the person who presented it to you. The contract governs the relationship between you and is not there just to serve one party.
So always read the contract before signing!
Sign the contract before you start work
I am currently facing a situation where I have been involved with a particular project for over two years and there is now an unpleasant parting of ways due to a disagreement. The problem for both parties is that there is no contract in place. A contract was promised at the beginning, but was never produced and I foolishly did not refuse to start work until the contract was in place. I could potentially lose a lot of money due to that oversight.
If you have gone to the trouble of drawing up a contract, or reading through a contract that is presented to you and making changes, then make sure that you actually sign it. And not only that, make sure the other party signs it too. Do not start work until the contract is signed. The point of starting work is often your greatest negotiating chip, so do not give it away until you have the signed contract in your hand.
What contracts do I need to sign?
You need to sign contracts with anyone you are entering a business relationship with. This includes an employer or someone contracting you to do work, and it also includes those you are employing or sub-contracting work to. It also includes those representing your work such as an agency or an agent or a gallery.
Many photographers will at some point in their lives be employed full time or part time by an organization that needs their services. The key clause to look out for in employment contracts is related to the ownership of the copyright of the images you take during the course of your employment. Most organizations by default will want to retain copyright in return for the salary package they offer you.
My advice would be to consider whether the salary package offered will in fact compensate you sufficiently for the potential loss of earnings. Remember that if you get to keep copyright, you can potentially be earning from those images for the next 50 years. Do not give this up lightly.
The ideal solution would be to negotiate the retention of copyright, but to come to a compromise where they have exclusive rights for a period of time. That could be for a number of months, it could be years or it could be during the course of your employ. If you cannot negotiate this, then you do need to make sure that your salary package includes sufficient compensation for lost future earnings, such as a pension, since licensing earning from your images is often a photographer's pension.
Having said this, photographers are not always in the position to negotiate from a place of strength. This is particularly so if you are just starting out as a photographer or you find yourself in financial difficulty. At times like these it may be best to make the necessary compromises. However, even if you find yourself in that situation do not give in to the temptation to create terms that are reasonable from the perspective of your potential employer such as exclusive rights for a period of time. There is seldom harm in asking!
As in the case of an employment contract the key clause to watch is the copyright clause. For editorial assignments you should be able to negotiate retention of copyright. Again, you need to be reasonable and attempt to see the situation from the perspective of those assigning you. In terms of this, be ready and willing to give up exclusive rights for a period of time. That time period needs to work for the assigning organization and needs to reassure them that the images are not going to be available to their competition in the marketplace for a period of time.
For commercial assignments it is rare that you will be able to retain copyright. The fees paid are usually sufficient to compensate you for the loss of copyright. There are also conditions whereby the finished photographic product is not just your own. You may be working with a creative director and the images you are taking are more her creative vision than they are yours. In this case you are more a camera man (as is the case in the production of feature films) than a photographer. The images you create also tend to be quite specific to the client and so these images often do not have a wider value. So with commercial assignments, if the price is right, be ready to give up copyright. I would say, however, if you find yourself being commissioned to do a commercial assignment where you will produce images that you know would have strong appeal in the stock market, make an attempt to negotiate the retention of copyright in return for a reduced fee. It may well pay you in the long run.
Employee and subcontractor contracts
Often contracts with an employee, such as a photography assistant, or a subcontractor, are dependent on the experience of the person you are taking on. If you are working with an inexperienced person just entering the field and requiring mentorship, part of their mentorship fees may reasonably be expected to be you retaining the copyright of the images they produce while working with you. It is a very different scenario if you are taking on or subcontracting to an experienced photographer who is adding value to your work or project on the basis of that experience. In this case I would suggest it is unfair to expect them to give up copyright, although you may expect them to grant you exclusivity for a period of time.
Contracts with agencies, agents and gallery owners
It goes without saying that contracts with those representing your work must always state very clearly that you retain copyright and they simply represent your images on your behalf. These contracts should also spell out the commission that is due to you on sales, and when, and under what conditions, that commission will be yours.
One thing to watch out for in these contracts is exclusivity clauses. Many agencies will attempt at first to gain exclusive rights or sole rights to represent your images. Unless there is a very good reason to sign such an agreement, do not do it. Tying yourself in in this way limits your options. If there is a good reason to do so, then you need to ensure that the contracts the agency to hit certain targets failing which the contract reverts to a non-exclusive arrangement. It is also wise to limit exclusive rights to a particular territory and also a particular time frame. So you may grant exclusive rights in North America for the period of three years. This allows you to assess performance and not commit indefinitely.
In terms of this, galleries will always demand exclusivity. Galleries trade in rarity and this is fundamental to their business model, so if the gallery is good then be prepared to go with it. But do so on the condition that the gallery has exclusivity within a particular territory (usually a country) and for a set time period. You want to be able to walk away at some point if it is not working out.
There are some important factors to bear in mind when dealing with agency contracts. The first is that agency contracts are often created in such a way to ensure that the global supply chain of imagery to publishing and broadcast markets operates efficiently. So an agency's contract with you will often be mirroring the terms and conditions outlined in the contracts they have with sub-agents in other national markets. This means that agency contracts are unlikely to be as flexible as some other types of contracts. So agencies are unlikely to agree to clauses that are unique to you and are not implementable all the way down the supply chain to sub-agents in other parts of the world.
Secondly, agencies are also often dealing with 10s and even 100s of photographers and therefore are reluctant to make special conditions for one photographer. This is not because they are being arrogant and dismissing you, but simply because the capacity to manage one photographer according to unique conditions is seldom possible.
Some essential clauses
While employing a lawyer to develop and look over all your contracts may be the ideal, in practice it is seldom manageable both in terms of lawyers' fees, and in terms of the speed of turn around of such arrangements. This is why it is worth just getting in to the practice of recognizing good and bad clauses yourself. Visit the ASMP bad contract for some help in developing this instinct.
Below are some good features and clauses that you should seek to include in contracts:
Both parties should be mentioned
Good contracts mention both parties to the contract and give the registration/identity numbers of each party as well as physical address and contact details. This is because a contract is only enforceable if it can be tied to the people, or business entity, that entered the contract. If this is vague, holding the other party to the terms of the contract becomes more difficult.
The responsibilities of both parties
A contract should always outline the responsibilities of both parties. The agreement between you is to govern both of your inputs to the relationship. Do not sign a contract that simply states what is expected of you. Even if the other party's sole responsibility is to pay you, that should be clearly stated.
Make sure your contracts are always crystal clear about financial arrangements. This is not only who is going to pay whom, but the amount that will be paid, how often, under what conditions and very importantly, when it will be paid. There is no area that is open to disagreements and differing interpretation than this one. Do not leave any niggles of doubt or unclarity in your mind not investigated. Get all questions out and dealt with in black ink on paper.
Duration and Termination
Ensure the contract always specifies a duration, even if it is renewable by default. It should also include a termination clause and be clear about the process for termination. You must always have the ability to withdraw from the relationship cleanly and without any loss. Likewise, the other party should be able to do so too. No contract should ever tie you in forever.
Disputes and governing law
Finally, make sure there is a clear clause specifying how disagreements are going to be resolved. During your working life you are likely to find yourself in disagreements many times. Make sure your contracts outline a clear process for resolving these disagreements. First prize is if your contracts always agree to arbitration rather than to the involvement of lawyers. Many countries have arbitration councils that can assist in the resolution of disputes. This tends to be a far less expensive way to resolve disagreements than when lawyers get involved. Specifying such a method for dealing with disputes prevents either party going the legal route. 'If you want peace, prepare for war'!
You can see all these clauses in action in the Africa Media Online Representation Agreement which you are free to adapt for your own use.