What Should I Put in My Terms and Conditions as a Photographer?

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Table of Contents

• Scope of the Project
• Fees and Payment
• Additional Services
• Intellectual Property 
• Alterations and Moral Rights
• Liability
• Key Takeaways

As a photographer, it is important to have terms and conditions (T&Cs) in place with your clients. Your T&Cs will make sure that:

• your services’ scope is well-defined; 
• any additional services are transparent;
• the payment terms are clear; 
• the copyright and usage rights are specified (i.e. Intellectual property);
• what happens if something goes wrong is set out clearly; and 
• how disputes are dealt with is set out. 

This article will address the sorts of things your T&Cs need to include. Additionally, it will illustrate why having T&Cs is important, even if you have a great relationship with your client. 

Scope of the Project

The scope of your project should be neatly defined. The scope should clearly set out what is included in, and what is excluded from your services. It should include the relevant timeframes, including the: 

• hours and days you will be shooting; and 
• timeframes as to when your client can expect their photographs back from you. 

Your T&Cs (or, a schedule attaching to the T&Cs, which form part of the T&Cs) should also set out:

• the deliverables that you will be providing; 
• how many photographs or how many hours’ worth of footage you will provide;
• the format of the deliverables (whether digital, hard copy, a photo album, or large prints); and
• whether you will edit the images. 

You should also spell out any expenses that your clients can incur, for example, if you expect your client to pay for any travel fees. These expenses should always be reasonable. 

Your lawyer can structure your T&Cs so that the commercial details (which might change from client to client) form part of your legal contract with your client. 

Fees and Payment

It is essential from the start that your client knows: 

• what your fees are; 
• whether there are circumstances which incur additional charges;
• how your fees are calculated; and 
• when your fees are due. 

Your payment terms should set out the method by which your client can pay you and the due date for payment. You should set out whether payment is due before or after you have provided the services and whether a deposit is required.

You may also want to explain what happens if you do not receive full payment for your services; for example, you may:

• not provide the final deliverables (e.g. the photos or videos) to your client; or
• engage debt collection services to recover the money owed to you. 

Your T&Cs may also set out any additional fees or cancellation fees you may charge. For example, you may charge extra or at an increased rate if your client expects you to provide services for longer than initially agreed. You may also charge a cancellation fee or not refund a deposit if you have booked a shoot with your client and they do not turn up or notify you about a cancellation within a specific time frame.

Remember that when cancellation fees are extravagant, they will be considered a ‘penalty’, making them unenforceable. Any cancellation fees you do include should be a true and accurate reflection of any losses or burdens you suffer as a result of your client’s cancellation. 

Additional Services

Alongside your scope of services, you may provide additional services at a cost, such as:

• makeup and costuming; 
• additional rounds of editing if the client requests changes to the final deliverables; or
• providing photoshoot sets or backdrops.

Your T&Cs should set out any additional services you provide (and your client may request). 

Intellectual Property 

Your intellectual property (IP) clause needs to be very carefully considered and may be negotiated if dealing with a more significant corporate client. The images you take are your property and will automatically be protected by copyright (you do not need to register any work for them to be protected by copyright). 

Depending on what you negotiate with your client, your T&Cs should set out:

• whether you will assign the IP rights in the image to your client;
• when any IP rights in the deliverables will be assigned to your client (e.g. upon receiving the payment or when you first take the pictures).

Even if you assign the IP rights in the images to your client, your T&Cs should set out the purposes for which you might continue to use the images. For example, you might wish to use some images: 

• in your portfolio; 
• on your website; and
• on your social media pages. 

Alterations and Moral Rights

When you create an artistic work, including photographs, you automatically gain ‘moral rights’ over the work. If someone breaches your moral rights, you can enforce these rights. As a photographer, your moral rights in your photographs and artistic work are set out below. 

You may wish to insert a clause in your T&Cs that prohibits your clients from altering or distorting your work in specific ways. This is important as your reputation is at stake.

Ideally, you would not want a client to manipulate or distort your images illegally, offensively or in a way that does not align with your business’ values while still claiming that you were the photographer.

Liability

Your T&Cs should contain clauses that exclude and limit your liability. ‘Exclusions’ to your liability are a list of things that you and your client agree you will not be held responsible for. For example, you might exclude your liability for:

• your client’s actions;

• any services you are not providing; and

• events outside your reasonable control. 

As a service provider, you cannot exclude liability for everything, including the Australian Consumer Law consumer guarantees. However, your lawyer can help you draft a liability clause that limits your liability to the extent possible.

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Key Takeaways

As a photographer, it is essential that you and your clients both clearly understand each other’s rights, especially the right to use the images and materials created. 

If you need assistance preparing or reviewing your terms and conditions, our experienced contract lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.