Product, Payment, and Third Party Agreements


Releases, Contracts, and Waivers for Photographers


Lesson Info

Product, Payment, and Third Party Agreements

So, going on, these are the main documents that I absolutely, strongly suggest that you guys have for all the reasons that I have just beat into your heads on. There's other ones that are really kind of extras. It depends on how you're doing your business. For me, product delivery agreement, and this is the current freebie that's at The Law Tog. You could go to the top of The Law Tog, free contract. We change it out frequently, but this is one of the ones that people absolutely, I think, love to have because they don't really think about when you deliver your products, you think that's the end, right? 'Cause in the chronological order, typically, when we've all fulfilled the agreement, everything's done, right? But you don't wanna deliver products, and then, after you close the door, you drive away, they're walking into their living room, they drop that $4,000 album on the floor and dent the corner, and now they're in their inbox saying oh, no, you gave me a dented album. When I delive...

red it, if I could have had them sign this PDA that is attesting to the fact that they accept it, that it's good quality, and all is good to go, it will help me to say you looked at it. You knew it wasn't dented when I gave it to you. Obviously, this isn't gonna work if you ship products, okay? This is only if you're doing stuff in person, whether you go to them or they come to your studio. It's good to have. It's not necessarily a necessity, but it's one of those things that I would add to your list to help protect you in this entire client timeline. Payment plan agreement, I talked a little bit about payment plans when they're within the contract. I love to have these. So, I don't offer payment plans except for maybe like large event stuff or large commercial licensing contracts that I do, but I like to have these on hand for portrait sessions, so if we're sitting in a sales session, I have it like an ace in the sleeve. It's like tucked up there. They love all the images. They're wanting to buy everything, but you see resistance that they're just not ready to spend that much money, this is a good ace in the sleeve that I can pull out to try to save the sale, because it wasn't necessarily in my original contract, right? 'Cause we didn't know that they were gonna need one. We didn't know how much their sales session was gonna be, so having this separately to get them onto a payment plan, and it goes back to kinda what we talked about a little bit before. When do they have to pay? How much do they have to pay? Any late fees, you know? I also would recommend having in there that you don't order any products or anything until at least the cost of goods. I say in full, but this is completely up to you, and I would do it on a case by case basis with your clients. Maybe they're a good client that's been coming to you for a while, and you know they're gonna pay. I would probably be happy to just require them to put the cost of goods amount up front before I ordered, right? Other people that may be brand new, you may not feel comfortable with a new client until they have paid in full. That's really gonna be a gut check that you're gonna have to make, but having this readily available so that it's there, 'cause if you tell them oh, I gotta go meet with my lawyer. I gotta get, you know, the payment plan drawn up. That fire and excitement they're gonna have for that sale is gonna be gone by the time you get on your lawyer's calendar and get back to them, 'cause lawyers are slow. Not me, but most are. Third party documents, this has absolutely relatively nothing to do with the client-photographer relationship. This is when you guys are working with third parties, such as a second shooter, and associate shooter, an assistant, a social media manager, anybody. We're gonna talk a little bit more about this with intellectual property rights, but having third party documents in play will help to ensure that anything that's created in the course of your business is your intellectual property, 'cause by default, for example, say you hire a virtual assistant who is creating social media content for you, graphics and so forth, and they're an independent contractor. They're not an employee. There's no evidence that they're an employee. You didn't agree to that, I'm gonna get into more of that later. By default, as an independent contractor, everything that they create is owned by them. By having documents in place, they transfer. All of my people sign intellectual property acknowledgements, so that they know that everything they create in any projects, and I even have my regular employees sign this as well, just to CYA, that everything that they create, all intellectual property, is mine. The most common one you guys have probably run into is logos. If you had a logo created, more than likely, you didn't have someone on staff, so they weren't an employee. They were a third party, flight by night independent contractor, maybe Etsy or wherever. Technically, by default, they retain all intellectual property rights to your logo. Do you know what that means? Unless you sign a document transferring it over, they could stop your use at any time. Any time at all. You also can't trademark it, and you also can't enforce if somebody else starts using your logo. You have no rights. You hold nothing but a license to use that logo, okay? So the big thing, if you guys have a logo that was created by somebody, for peace of mind, I would go and have the intellectual property rights signed over. I cut it off at the pass. For all people that are working with me, they all sign intellectual property acknowledgements, so I know that I own everything. Well, my LLC, my entity does, but owns everything. And the second one is confidentiality. Not a non-disclosure. A lot of times, people confuse this a little bit, but it's a confidentiality agreement, basically, that they're gonna be keeping all of the proprietary information, price list, customer contact information, all of this that you would think is common sense that people should know not to shout to the rooftops, but confidentiality. We wanna have this document in place, because you never know what the relationship's gonna be like. Maybe they decide to go down the street, open up their own photography business, and what are you gonna enforce at that point? Which brings us on to non-solicitation. I definitely recommend this for any second chairs that you guys have. Non-solicitation agreement, they can not solicit out of your engaged clients. You could also write, I don't know if mine's even broader to include potentials. I think it is. Anybody that actually comes to me, 'cause it's gotta be pretty narrow. I mean, like, it can't be like anybody in the geographical area, right? We're starting to move into like non-competes and all that. We're not talking about any of that, right? Non-competes are not highly looked upon by courts, and so these intellectual property acknowledgement, confidentiality, and non-solicitation are kind of good ways to preserve your intellectual property and your proprietary information, that restricts their competition without restricting their competition. Does that make sense? You're basically eliminating their tools. Your price list, your contacts for your clients, and so forth, so really, I put this into standard. Whenever someone comes to work for me, independent contractor or employee, they get an offer letter that kind of just recaps everything, their contract, and then the intellectual property acknowledgement and the confidentiality and non-solicitation document. Sounds like overkill, but you know what? If I'm paying you and you don't wanna sign this document and you're gonna come on board, what did we talk about earlier, like with our clients? You're gonna probably have other problems later on down the line, and I'm more than happy to sit and talk to them and explain to them why I'm doing X, Y, and Z. Now, if I have someone who's creating, such as a logo designer who's creating something for me, I have no problem licensing them the rights to use it in their portfolio, much like how we give, we have model releases. It's a little different, 'cause it's publicity rights, but we're giving them a license of use to be able to use the logo so that they can get other clients, right? That's another little document you can throw it in there, and it's a little overwhelming, I know, but I just want you guys to keep these ideas in mind because you don't wanna wake up one day and realize you can't enforce something on someone, 'cause by default, we would hope everyone would be a good individual. I made it for you. It should be yours, but that's not the way the intellectual property law works. Let me take a step back before moving, because we've already talked a bit about implementation. Let's take a step back and talk a little bit about, 'cause it's kind of along a third party. It's back to with our client and photographer relationship. I mentioned earlier that you could have a contract person, party, sign and not be the client, right? Or not be the person that's in the images. For example, you could have mom and dad wanna gift it to the couple. Or, in the inverse, you could have the couple on the contract. If they wanna be the party to it, it's all great, but then mom and dad wanna pay. Keep in mind, it is cleaner and easier to have the person that's on the contract be the person that pays, and also be the person that is receiving the benefit of the contract as well. Easiest. Life's not easy, just like the little examples I gave you a little bit ago. The most common one I see with weddings is that mom and dad wanna pay, but they don't necessarily wanna be party to it. The fact that they pay, they still could have rights and responsibilities under the contract, even if they're not a signature. Even if they never saw this and they were not a pen to it, so I always recommend that they give money to couple, and couple then signs contract and gives it to you. Funnel it all through that one main person, 'cause once you start having multiple parties in play, it just becomes a cluster and it just becomes a mess, and also, try serving two masters. Try serving, which still happens with weddings, you still have the mother that wants to have her say, even if she's not a party, even if she didn't pay, but you're better able to tell her to bump off if she hasn't done either of those, right? And if you're able to focus on just the clients, just the people in the image, then they're receiving the benefit of it, and you may have clients that push back. I don't recommend complicating it with more legal documents, to having a third party who's paying. It's hard to really have a valid document that says oh, while you're paying, you're just the payor. It's very difficult to even enforce that, because there's still third party rights that they could have to the contract, because that financial amount that they're paying is a substantial part and performance of the contract, back to the consideration that we talked about. Alright, are there any questions before I go into the implementation? Yes? In a lot of wedding situations, you have like a coordinator. Oh, yes. Should the language be in the contract that the coordinator has a certain ability to pose and get certain shots so that you're protected from them coming back and say you never did this or that? So that the coordinator has the what to pose? Like the authority to pose people or call certain shots, or like sometimes they'll announce when the bride and groom are coming in the room, and that's done by the coordinator for whatever reason. Should there be a special provision for people that have the ability to direct, or like direct the creative outcome? I get what you're saying, and I'm glad you said that, because I wanna talk about artistic discretion, 'cause I left that off, by accident, and I apologize. Does that coordinator have any other authority and responsibilities? I mean, are they really? 'Cause sometimes coordinators have the legal authority from the client to direct everything for the day. In that case, yes. If it's someone who just decides that they're going to come in and do the one posing, but they're not really in charge of anything else, I guess that would just be a planner, no. Does that help a little bit? For best, oh my gosh, now I'm thinking of other things that I forgot off the list. I apologize. So, in that case, if you don't have that in there and you don't wanna let them have control, artistic discretion. This always helps for the clients to understand that you are the one that makes the culling and the selection of the final images. Another thing in there could also be a substitute photographer, and I apologize. It doesn't have to do with the artistic discretion, but should something happen to you, and this is specifically important with like births and weddings, then you're able to have someone step into your shoes. That is to protect you and the client as well. As far as when it comes to, oh, and the other one, exclusive photographer. That's more for weddings, obviously, and they're probably not gonna hire multiple photographers to show up at a family session, but in that case, you could also broaden the language to say that no one else has authority. Technically, you don't need to, 'cause technically, only the people that are party to the contract have the authority to enforce the contract. Now, it gets complicated, the reason I ask is does that wedding coordinator, were they, do the wedding coordinator and the client sign together and give the wedding coordinator authority over direction of the day? Yes, that's when it would start impacting you. If they have no contractual authority to step in the shoes of them, it's more of kind of a preferential thing of what you wanna CYA. I probably wouldn't complicate it too much with that. Does that help? Okay. Yes? I also have a question about property releases, like if you're shooting in somebody's house, for example, but the house isn't the subject, but you still wanna use those photos, do you also need to bring a property release? Or say their dog ends up in the photo, or anything they own? Typically, it's only for very specific, like with pets, it's really only for, you only need like a pet release or animal release if they're really well known. Do you guys follow Tuna, the little Chihuahua dog? He lives in California. You know who I'm talking about. I freaking love him. If I photographed his family, that would be one that, and he's in it, I wanna have a property release. If you photographed mine, my two little hound dogs, they're nothing. I mean, they're kinda superstars in their own right, to me, but you wouldn't necessarily need it. It's more about the notoriety. For property, the same thing. I would not necessarily believe that you need it. It's circumstance specific, okay? And it really depends on the location, as well, of where you're doing it. Yes? Go ahead. And also, with the animals, it is required, sometimes if you're working with an agency, and you're planning on using their animals commercially. Yes, yes, yeah. So I am required to do a lot of property releases. That's usually what I deal with. Well, and that's kind of what I'm talking about. Like, 'cause the majority, the normal person like me, I'm not booking my dog, Archer, for Purina commercials. Like he's just lying on my couch all day, contributing nothing to society, so I don't necessarily need a property release, but like with Tuna the dog or other ones that you're doing, yes, you would definitely, 'cause they have publicity rights. I mean, it's not the correct terminology, but much like humans. Alright, implementation. Can we jump in with a question from online real quick? Yes. Just about, Mr. Baggins asked, can you talk about the legality of posting photos on social media, especially Facebook? Do they own our photos? Okay, Mr. Baggins, I feel like I'm being trolled, and I apologize if that's really your name. I love it. So, do they own our images? Yeah. No. So, it is a common misconception when you put out, and we'll talk about this a little bit more with intellectual property later, but it is important here when we're talking about publicity rights stuff and model releases. We need to be vigilant of this information so that we can explain it to our clients. No, as the terms are now, they do not. Typically, when you upload to social media, you're giving them a license. You're not doing a copyright transfer. There's no intellectual property rights, ownership transfer. It's typically just a license for them to utilize it in marketing and so forth. I'm not a fan, as an intellectual property attorney, I'm not a fan of a lot of the terms of social media sites now, but they're consistent across the board. They pretty much, you're giving permissions for the same thing. Now, keep in mind, that terms of use, like with Facebook, I'm uploading to Facebook, it's contract privity. I am only in privity of contract with Facebook, so only Facebook, then, is receiving the license to use those images when I upload them. That's not giving every other Tom, Dick, or Harry the right to utilize those images. That would then be copyright infringement. It's just Facebook and their associated affiliates or relatives named. It's not an ownership transfer. I think shit would hit the fan if they ever went to that step of trying to include it. It is already a pretty broad and extreme rights grab terms now. I'm gonna probably eat my words on this, but I can't see them ever trying to enforce ownership because they know that no one is going to, then, utilize it. No businesses are, then, gonna want to give up ownership by merely using a platform, no matter how commercially fueling. I mean, a lot of business comes out of Facebook, but to me, I would cut the cord. I would not put any images up there if their terms demonstrated a transfer.

Class Description

The use of legal documents is standard in business, but the understanding and implementation of these documents in photography businesses is less common. So many photographers land in hot water for not having or understanding the proper documents. Join Rachel Brenke, TheLawTog®, as she helps get you armed against liability and issues by discussing what releases should say and how to read contracts and waivers to set you up for success.

The Brenke Group, LLC, doing business as TheLawTog® (“TheLawTog”) provides an online legal portal to help customers identify business and legal problems commonly encountered by individuals in the photography industry. TheLawTog is not a law firm and does not and will not perform services performed by an attorney. TheLawTog is NOT a substitute for the advice of an attorney. Instead, TheLawTog provides templates and education to individuals who voluntarily chose to prepare their own legal and/or business documents, submit templates to licensed attorneys for modification, and/or for education purposes prior to contacting a licensed attorney.


Charlotte M

Very reassuring to watch as you set up your contracts and policies! I own several of her template packages and this class was great for understanding the contents of my templates.