Attaining the knowledge of good business practices and implementing their use is an important step toward success for any professional, including the professional photographer. The forms contained in this book deal with the most important business transactions that any photographer is likely to undertake. A CD-ROM is also included to make customization easier. The fact that the forms are designed for use and that they favor the photographer give them a unique value.
Understanding the business concepts behind the forms is as important as using them. By knowing why a certain provision has been included and what it accomplishes, the photographer is able to negotiate when faced with someone else’s business form. The photographer knows what is and is not desirable. The negotiation checklists offer a map for the negotiation.
All forms, whether the photographer’s or someone else’s, can be changed. Before using these forms, the photographer should consider reviewing them with his or her attorney. This provides the opportunity to learn whether local or state laws make it wise to modify any of the provisions. For example, would it be best to include a provision for arbitration of disputes, or are the local courts speedy and inexpensive, making an arbitration provision unnecessary?
The forms must be filled out, which means that the blanks in each form must be completed. Beyond this, however, the photographer can always delete or add provisions on any form. Deletions or additions to a form are usually initialed in the margin by both parties. It is also a good practice to have each party initial each page of the contract, except the page on which the parties sign.
The photographer must ascertain that the person signing the contract has authority to do so. If the photographer is dealing with a company, the company’s name should be included, as well as the name of the individual authorized to sign the contract and the title of that individual. If it isn’t clear who will sign or if that person has no title, the words “Authorized Signatory” can be used instead of a title.
If the photographer will not be meeting with the other party to sign the contract, it would be wise to have that party sign the forms first. After the photographer gets back the two copies of the form, they can be signed and one copy returned to the other party. As discussed in more detail under letter contracts, this has the advantage of not leaving it up to the other party to decide whether to sign and thus make a binding contract.
If additional provisions that won’t fit on the contract forms should be added, simply include a provision stating, “This contract is subject to the provisions of the rider attached hereto and made a part hereof.” The rider is simply another piece of paper which would be headed, “Rider to the contract between ______________________ and ___________________, dated the _______ day of ______, 20____.” The additional provisions are put on this sheet and both parties sign it.
Most of the forms in this book are contracts. A contract is an agreement that creates legally enforceable obligations between two or more parties. In making a contract, each party gives something of value to the other party. This mutual giving of value is called the exchange of consideration. Consideration can take many forms, including the giving of money or a photograph or the promise to create a photograph or pay for a photograph in the future.
Contracts require negotiation. The forms in this book are favorable to the photographer, so changes may very well be requested. This book’s explanation of the use of each form should help the photographer evaluate changes which either party may want to make in any of the forms. The negotiation checklists should also clarify what changes would be desirable in forms presented to the photographer.
Keep in mind that negotiation need not be adversarial. Certainly the photographer and the other party may disagree on some points, but the basic transaction is something that both want. This larger framework of agreement must be kept in mind at all times when negotiating. Of course, the photographer must also know which points are nonnegotiable and be prepared to walk away from a deal if satisfaction cannot be had on these points.
When both parties have something valuable to offer each other, it should be possible for each side to come away from the negotiation feeling that they have won. Win-win negotiation requires each side to make certain that the basic needs of both are met so that the result is fair. The photographer cannot negotiate for the other side, but a wise negotiation strategy must allow the other side to meet their vital needs within a larger context that also allows the photographer to obtain what he or she must have.
It is a necessity to evaluate negotiating goals and strategy before conducting any negotiations. The photographer should write down what must be achieved and what can be conceded or modified. The photographer should try to imagine how the shape of the contract will affect the future business relationship with the other party. Will it probably lead to success for both sides and more business or will it fail to achieve what one side or the other desires?
When negotiating, the photographer should keep written notes close at hand concerning goals and strategy. Notes should be kept on the negotiations, too, since many conversations may be necessary before final agreement is reached. At certain points the photographer should compare what the negotiations are achieving with the original goals. This will help evaluate whether the photographer is conducting the negotiations according to plan.
Many negotiations are done over the telephone. This makes the telephone a tool to be used wisely. The photographer should decide when to speak with the other party. Before calling, it is important to review the notes and be familiar with the points to be negotiated. If the photographer wants the other party to call, the file should be kept close at hand so that there is no question as to where the negotiations stand when the call comes. If the photographer is unprepared to negotiate when the other side calls, the best course is to call back. Negotiation demands the fullest attention and complete readiness.
Although all the forms in this book are written, the question of oral contracts should be addressed. There are certain contracts that must be written, such as a contract for services that will take more than one year to perform, a contract to transfer an exclusive right of copyright (an exclusive right means that no one else can do what the person receiving that right of copyright can do), or, in many cases, a contract for the sale of goods worth more than $500. So—without delving into the full complexity of this subject—certain contracts can be oral. If the photographer is faced with a breached oral contract, an attorney should certainly be consulted for advice. The photographer should not give up simply because the contract was oral.
However, while some oral contracts are valid, a written contract is always best. Even people with the most scrupulous intentions do not always remember exactly what was said or whether a particular point was covered. Disputes, and litigation, are far more likely when a contract is oral rather than written. That likelihood is another reason to make the use of written forms, like those in this book, an integral part of the business practices of any photographer. In many cases, exchanges of e-mails or faxes, even if unsigned, can create a binding contract. Stating the photographer’s intention (either to make or not make a contract) can be an important safeguard here.
If the photographer feels that sending a well-drafted form will be daunting to the other party, the more informal approach of a letter, signed by both parties, may be adopted. In this case, the forms in this book will serve as valuable checklists for the content and negotiation of the letter contract. The last paragraph of the letter would read, “If the foregoing meets with your approval, please sign both copies of this letter beneath the words AGREED TO to make this a binding contract between us.” At the bottom of the letter would be the words AGREED TO with the name of the other party so he or she can sign. Again, if the other party is a company, the company name, as well as the name of the authorized signatory and that individual’s title, would be placed beneath the words AGREED TO. This would appear as follows:
AGREED TO:
Two copies of this letter are sent to the other party, who is instructed to sign both copies and return one copy for the photographer to keep. To be cautious, the photographer can send the letters unsigned and ask the other party to sign and return both copies, at which time the photographer will sign and return one copy to the other party. This gives the other party an opportunity to review the final draft, but avoids a situation in which the other party may choose to delay signing, thereby preventing the photographer from offering a similar contract to anyone else because the first contract still may be signed.
The photographer can avoid this by being the final signatory, by insisting that both parties meet to sign, or by stating in the letter a deadline by which the other party must sign. If such a situation ever arises, it should be remembered that any offer to enter into a contract can always be revoked up until the time that the contract is actually entered into.
The contracts in this book contain a number of standard provisions, called “boilerplate” by lawyers. These provisions are important, although they will not seem as exciting as the provisions that relate more directly to the photographer and the photography. Since these provisions can be used in almost every contract and appear in a number of the contracts in this book, an explanation of each of the provisions is given here.
Amendment. Any amendment of this Agreement must be in writing and signed by both parties.
This guarantees that any changes the parties want will be made in writing. It avoids the possibility of one party relying on oral changes to the agreement. Courts will rarely change a written contract based on testimony that there was an oral amendment to the contract.
Arbitration. All disputes arising under this Agreement shall be submitted to binding arbitration before _____________________ in the following location __________________ and shall be settled in accordance with the rules of the American Arbitration Association. Judgment upon the arbitration award may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, either party may refuse to arbitrate when the dispute is for a sum of less than $_______.
Arbitration can offer a quicker and less expensive way to settle disputes than litigation. However, the photographer would be wise to consult a local attorney and make sure that this is advisable in the jurisdiction where the lawsuit would be likely to take place. The arbitrator could be the American Arbitration Association or some other person or group that both parties trust. The photographer would also want the arbitration to take place where he or she is located. If small claims court is easy to use in the jurisdiction where the photographer would have to sue, it might be best to have the right not to arbitrate if the disputed amount is small enough to be brought into small claims court. In this case, the photographer would put the maximum amount that can be sued for in small claims court in the space at the end of the paragraph.
Assignment. This Agreement shall not be assigned by either party hereto, provided that the Photographer shall have the right to assign monies due to the Photographer hereunder.
By not allowing the assignment of a contract, both parties can have greater confidence that the stated transactions will be between the original parties. Of course, a company may be purchased by new owners. If the photographer only wanted to do business with the people who owned the company when the contract was entered into, change of ownership might be stated as a ground for termination in the contract. On the other hand, money is impersonal and there is no reason why the photographer should not be able to assign the right to receive money.
Bankruptcy or Insolvency. If the Gallery should become insolvent or if a petition in bankruptcy is filed against the Gallery or a Receiver or Trustee is appointed for any of the Gallery’s assets or property, or if a lien or attachment is obtained against any of the Gallery’s assets, this Agreement shall immediately terminate and the Gallery shall return to the Photographer all of the Photographer’s work that is in the Gallery’s possession.
This provision seeks to protect the photographer against creditors of the gallery who might use the photographer’s work or proceeds from that work to satisfy claims they have against the gallery itself. Because a provision of this kind does not protect the photographer completely, many states have enacted special consignment laws protecting photographers and their work. Such a provision should also appear in a publishing or licensing contract, although the bankruptcy law may impede the provision’s effectiveness.
Complete Understanding. This Agreement constitutes the entire and complete understanding between the parties hereto, and no obligation, undertaking, warranty, representation, or covenant of any kind or nature has been made by either party to the other to induce the making of this Agreement, except as is expressly set forth herein.
This provision is intended to prevent either party from later claiming that any promises or obligations exist except those shown in the written contract. A shorter way to say this is, “This Agreement constitutes the entire understanding between the parties hereto.”
Cumulative Rights. All rights, remedies, obligations, undertakings, warranties, representations, and covenants contained herein shall be cumulative and none of them shall be in limitation of any other right, remedy, obligation, undertaking, warranty, representation, or covenant of either party.
This means that a benefit or obligation under one provision will not be made less because of a different benefit or obligation under another provision.
Death or Disability. In the event of the Pho-tographer’s death, or an incapacity of the Photographer making completion of the Work impossible, this Agreement shall terminate.
A provision of this kind leaves a great deal to be determined. Will payments already made be kept by the photographer or the photographer’s estate? And who will own the work at whatever stage of completion has been reached? These issues should be resolved when the contract is negotiated.
Force Majeure. If either party hereto is unable to perform any of its obligations hereunder by reason of fire or other casualty, strike, act or order of a public authority, act of God, or other cause beyond the control of such party, then such party shall be excused from such performance during the pendency of such cause. In the event such inability to perform shall continue longer than ____ days, either party may terminate this Agreement by giving written notice to the other party.
This provision covers events beyond the control of the parties, such as a tidal wave or a war. Certainly the time to perform the contract should be extended in such an event. There may be an issue as to how long an extension should be allowed. Also, if work has commenced and some payments have been made, the contract should cover what happens in the event of termination. Must the payments be returned? And who owns the partially completed work?
Governing Law. This Agreement shall be governed by the laws of the State of_____________.
Usually the photographer would want the laws of his or her own state to govern the agreement. However, laws vary from state to state. A number of states have enacted laws favoring photographers, especially in the area of consignments of art to a gallery. If the photographer’s own state lacks this law, it might be preferable to have a gallery contract governed by the law of a different state that has such a consignment law. To find out if a state has such a law, refer to the volunteer lawyers for the arts section of this text, following the discussion of standard provisions.
Indemnify and Hold Harmless. The Purchaser agrees to indemnify and hold harmless the Photographer from any and all claims, demands, payments, expenses, legal fees, or other costs in relation to obligations for materials or services incurred by the Purchaser.
This provision protects one party against damaging actions that may have been taken by the other party. Often, one party will warrant that something is true and then indemnify and hold the other party harmless in the event that it is not true. See the discussion of “Warranties” later in this section. A warranty is usually accompanied by an indemnity clause.
Liquidated Damages. In the event of the failure of XYZ Corporation to deliver by the due date, the agreed upon damages shall be $ _____ for each day after the due date until delivery takes place, provided the amount of damages shall not exceed $_____.
Liquidated damages are an attempt to anticipate in the contract what damages will be caused by a breach of the contract. Such liquidated damages must be reasonable. If they are not, they will be considered a penalty and held to be unenforceable.
Modification. This Agreement cannot be changed, modified, or discharged, in whole or in part, except by an instrument in writing, signed by the party against whom enforcement of any change, modification, or discharge is sought.
This requires that a change in the contract must be written and signed by the party against whom the change will be enforced. It should be compared with the provision for amendments that requires any modification to be in writing and signed by both parties. At the least, however, this provision explicitly avoids the claim that an oral modification has been made of a written contract. Almost invariably, courts will give greater weight to a written document than to testimony about oral agreements.
Notices and Changes of Address. All notices shall be sent to the Photographer at the following address:________________________________ and to the Purchaser at the following address: _______________________________. Each party shall be given written notification of any change of address prior to the date of said change.
Contracts often require the giving of notice. This provision facilitates giving notice by providing correct addresses and requiring notification of any change of address.
Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors, and assigns.
This makes the contract binding on anyone who takes the place of one of the parties, whether due to death or simply to an assignment of the contract. Note that the standard provision on assignment in fact does not allow assignment, but that provision could always be modified in the original contract or by a later written, signed amendment to the contract.
Time. Time is of the essence.
This requires both parties to perform to the exact time commitments they have made or be in breach of the contract. It is not a wise provision for the photographer to agree to, since being a few days late in performance could cause the loss of benefits under the contract.
Waivers. No waiver by either party of any of the terms or conditions of this Agreement shall be deemed or construed to be a waiver of such term or condition for the future, or of any subsequent breach thereof.
This means that if one party waives a right under the contract, such as the right to receive the first of a series of payments on time, that party has not waived the right forever and can demand that the other party perform at the next opportunity. So the photographer would still have the right to be paid on time for the rest of the payments in the series. And if the client breached the contract in some other way, such as not giving name credit, the fact that the photographer allowed this once would not prevent the photographer from suing for such a breach in the future.
Warranties. The Photographer hereby warrants that he or she is the sole creator of the Work and owns all rights granted under this Agreement.
A warranty is something the other party can rely on to be true. If the photographer states a fact that is a basic reason for the other party’s entry into the contract, then that fact is a warranty and must be true. For example, the photographer might state that he or she is the sole creator of certain photographs, owns the copyright therein, and has not infringed anyone else’s copyright in creating the work. If this were not true, the photographer would be liable for damages caused to the other party under the indemnity clause of the contract.
There are now volunteer lawyers for the arts across the nation. These groups provide free assistance to photographers below certain income levels and can be a valuable source of information. If, for example, it is not clear whether a certain law to benefit photographers (such as a gallery consignment law) has been enacted in a state, the photographer should be able to find out by calling the closest volunteer lawyers for the arts group. To find the location of that group, one of the groups listed here can be contacted:
California: California Lawyers for the Arts, Fort Mason Center, Building C, Room 255, San Francisco, California 94123, (415) 775-7200; www.calawyersforthearts.org.
Illinois: Lawyers for the Creative Arts, 213 West Institute Place, Suite 403, Chicago, IL 60610; (312) 649-4111; www.law-arts.org.
New York: Volunteer Lawyers for the Arts, 1 East 53rd Street, New York, NY 10022; (212) 319-2787; www.vlany.org.
A helpful handbook covering all legal issues which photographers face is Legal Guide for the Visual Artist by Tad Crawford (Allworth Press). Other good resources are The Law (in Plain English) for Photographers by Leonard DuBoff (All-worth Press) and The Professional Photographer’s Legal Handbook by Nancy Wolff (Allworth Press).
Joining an organization of fellow professionals can be an important step in learning proper business practices and advancing the photographer’s career. The following organizations have chapters across the country and are well worth belonging to. Students should inquire regarding special student rates for membership.
Advertising Photographers of America (APA) P.O. Box 725146, Atlanta, GA 31139; (800) 272-6264; www.apanational.com. Benefits include an online search feature to find members and their images and capabilities, business information, and an e-newsletter. Chapters are in a number of cities.
American Society of Media Photographers (ASMP) 150 North Second Street, Philadelphia, PA 19106; (215) 451-2767; www.asmp.org. The membership is comprised of editorial, corporate, industrial, and advertising photographers, with chapters nationwide. ASMP publishes a monthly newsletter and compiles the ASMP Professional Business Practices in Photography (Allworth Press). The Web site allows potential clients to search for photographers who are ASMP members.
National Press Photographers Association 3200 Croasdaile Drive, Suite 306, Durham, NC 27705; (919) 383-7246; www.nppa.org. The NPPA services include major medical, equipment insurance, find-a-member-photographer services, and a variety of publications including News Photographer Magazine.
Professional Photographers of America (PPA) 229 Peachtree Street NE, Suite 2200, Atlanta, GA 30303; (404) 522-8600; www.ppa.com. Membership is available in portrait, wedding, commercial-corporate-advertising, video, art-technical, and digital imaging. PPA publishes Professional Photographer magazine, makes many discounts on insurance and equipment available to members, offers a continuing education program, and has an online find-a-photographer feature.
Stock Artists Alliance (SAA) 175 Main Street, Glen Gardner, NJ 08826; (212) 726-1011; www. stockartistsalliance.org. The membership shoots stock and the organization seeks to support stock shooters.
Wedding & Portrait Photographers International (WPPI) P.O. Box 2003, Santa Monica, CA 90406; (310) 451-0090; www.wppionline.com. The organization has a monthly newsletter, competitions, and an annual convention.
These checklists focus on the key points for negotiation. When a point is covered in the contract already, the appropriate paragraph is indicated in the checklist. These checklists are also valuable to use when reviewing a form given to the photographer by someone else. If a point in the checklist does not refer to a paragraph number, it means that point is not covered in the contract but the photographer should be ready to handle the issue if it is raised in the negotiations
If the photographer will provide the form, the boxes can be checked to be certain all important points are covered. If the photographer is reviewing someone else’s form, checking the boxes will show which points are covered and which points may have to be added. By using the paragraph numbers in the checklist, the other party’s provision can be quickly compared with a provision that would favor the photographer.
Of course, the photographer does not have to include every point on the checklist in a contract, but being aware of these points will be helpful. After the checklists, the exact wording is provided for some of the more important provisions that might be added to the form. Starting with Form 1, the explanations go through each of the forms in sequence.