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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;
- the payment terms are clear;
- 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, large prints); and
- whether you will edit the images.
Fees and Payment
It is very important from the start that your client knows:
- what your fees are;
- 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.
The payment clause should also set out what happens if your client does not pay you, for example you may:
- not provide the final deliverables to your client; or
- engage debt collection services to recover the money owed to you.
Your T&Cs may also set out any cancellation fees you may charge. For example, you may charge a cancellation fee, or not refund a deposit, where you have booked a shoot with your client, and they do not turn up.
Remember that when cancellation fees are extravagant, they will be considered a ‘penalty’, making them unenforceable.
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Your intellectual property (IP) clause needs to be very carefully considered and may be negotiated, particularly if dealing with a larger 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). However, depending on what you negotiate with your client, your T&Cs may set out if you will assign the IP rights in the images to your client.
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:
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.
What this means for you
The right to attribution of authorship
You are entitled to have your work attributed to you. Your name can be clear and prominent on (or near) your photographs.
The right to not have your authorship falsely attributed
A third party cannot be identified as the creator of your photographs.
The right of integrity of authorship
This right protects the integrity of your work, as well as your own integrity as the creator. Under this right, your work should not be subjected to derogatory treatment, such as being distorted or mutilated.
You may wish to insert a clause in your T&Cs that prohibits your clients from altering or distorting your work. This is important as your reputation is at stake.
Your T&Cs should contain clauses which exclude and limit your liability. ‘Exclusions’ to your liability are a list of things which you and your client agree you will not be held responsible for. For example, you might exclude your liability for:
- your client’s actions (e.g. if your client loses the sim card you give to them containing the photographs);
- any services you are not providing (e.g. services outside of the scope); and
- events outside your reasonable control (e.g. bad weather).
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.
As a photographer, it is important that you and your clients both clearly understand each other’s rights, especially the right to use the images and materials created. If you would like assistance reviewing your T&Cs, or preparing new T&Cs covering each of the items listed in this article, contact LegalVision’s contract lawyers on 1300 544 755 or fill out the form on this page.
Frequently Asked Questions
T&Cs are important as they will make sure that your services’ scope is well defined, the payment terms are clear and they will cover what happens if something goes wrong including how disputes are dealt with.
These should clearly set out what your fees are, how they are calculated and when they are due. Your payment terms should also set out the method of payment, due date for payment and what happens if your client does not pay you.
As a photographer, you automatically gain moral rights over an artistic work when you create it. These rights may include having your work attributed to you, a third party being unable to be identified as the creator of your photographs and the integrity of your work being protected.
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