One of the biggest mistakes photographers make is to believe the client sales interaction is confined to the sales session, whether on-line or in-person. This is extremely far from the truth. The sales pitch and business safeguards begin prior to the time of inquiry all the way through the delivery of the products.
Another mistake photographers make is to believe that the contract and model release are the only needed documents to safeguard a business. There is actually a timeline of the use of contracts that help aid the customer service and sales process.
Portrait Contract and Model Release
At the beginning of the client and photographer relationship is the Portrait Contract and Model Release (affiliate). This governs the relationship between Client and Photographer. This will lay the foundation for sales by having provisions (if drafted right!) about completion schedules, ordering deadlines, etc. A general rule of thumb is not to even place a client on the calendar and consider as “booked” until the portrait contract, model release and the non-refundable monies are paid to reserve the time.
A contract is THE agreement your client and photographer relationship will be built on. It has legally binding rights and obligations, which the courts can enforce. Here are a few of the major points photography contracts should include (opinion from my legal education and experience in the business.
- Specifics – At a minimum, your contract should include the specifics of the transaction. Including parties names, photographer name, monetary exchange, promised product to be given in exchange for the funds. If someone is a minor you must have their parent/guardian sign the document or else the contract is null.
- Cancellation Policy – This policy works to protect yourself/time and inform your clients ahead of time of their options if they need to cancel. Informing someone of this policy after the fact can lead to a bad taste in their mouth and we don’t want to mess with word of mouth marketing.
- Late Policy – Same with cancellation, let clients know your late policy. There’s no right or wrong policy. Just be consistent!
- Expectations – Outline all expectations including: turn around time, guarantee of quality of product, how/when products will be delivered, how long they have to order, etc.
- Do not edit/reproduce -This section can probably go under the “copyright” section, however, I find it important in today’s technology age to break it out to emphasize importance. Everyone has editing programs at their fingers tips…even changing a Facebook profile picture and using the crop tool constitutes editing of the photograph as it is compromising the integrity of the photograph as the artist intended it. Many clients confuse copyright/print release (see below) and may honestly (or dishonestly) believe they have the right to edit their photographs because they are in them. Maintaining copyright ownership and explicitly spelling this out you will be working to preventively nix any potential issues in the bud. Further, outlining that scanning of a photograph also violates copyright law may prevent this situation.
- Copyright – This clause can release the copyright from the photographer to the client. If you transfer the copyright by contract, the photograph no longer belongs to the Photographer. In fact, in these cases the Photographer can technically never use the photographs without permission of client! It is important to ensure there is a provision to protect your artistic property and keep your copyright intact.
- Model Release – This is a legal release that is signed by the subject (or parent/guardian) of a photograph granting permission to publish the photograph in one form or another, typically for marketing and portfolio materials. *Especially true for minors* See also: <Link to the article: What if my client doesn’t want to sign a model release? on TheLawTog”
- Substitute Photographer (Mostly applicable for wedding photographers) – This clause is imperative because life happens! You want to be able to have a second or substitute shooter take your place in the event of an emergency. I personally emphasize this to my brides.
This contract is an outlier to the client and photographer relationship as it is between the independent contractor and photographer alone but is critical to the health and productivity of many businesses. Hiring someone to assist on shoot, to provide administrative support or simply to process images can be a great load and stress off the core transaction.
An agreement with a third-party should include payment details, insurance requirements, liability indemnification, assignment of duties, confidentiality and other applicable provisions as the business model demands.
Final Sale and Cooling Off Laws
Typically the sales session will then occur, that can happen in-person or on-line by gallery or another communication method (such as phone, Skype or Facetime). A great downfall to allowing the sales session to be complete with the receiving of money and confirmation of invoice is that many times photographers fail to realize the Federal and State “Cooling Off Laws”. The laws allow clients to cancel sale within a certain time frame from the sale. These laws protect the consumer for sales made in the buyer’s home, workplace or facilities rented by the seller on temporary or short-term basis (hotel room, restaurants, etc.). This Cooling-Off law still applies for clients that initiate the invitation to have the sales session within their home. The Federal is a three-day cooling off period, whereas State laws vary on timeline so always check with your local state laws.
Here is a perfect example of why the Final Sale is crucial:
Jane had a fabulous ordering session in the home of Noel and Stephanie, where they agreed to and handed over a check for a large order. However, the sales meeting Noel and Stephanie get in a huge fight and decide to call their relationship quits. They email Jane the next morning to rescind the sale and apologize profusely but they want nothing to do with any images that are of the both of them.
However, Jane, in all her excitement, had run home from the session and put in her order to the lab. This order had an album, canvases and other products with a high cost of goods. Because her lab is so awesome the order is already processed by the time Jane receives the email from Noel and Stephanie. By law the couple has every right to cancel or amend their order, despite having written a check to Jane. They had not signed a document expressly waiving their sales transaction cooling off period, therefore, Jane is required to return the monies as requested per the law and must soak up the lost cost of goods. Jane is now out hundreds of dollars cost of product that she can’t sell to anyone.
Keep in mind exceptions to the law do apply based on the circumstances of the situation. For full information on Cooling Off Laws check with the FTC and State Regulatory Authorities.
However, the Cooling Off Rules can be waived through a Final Sale document that expressly allows the client to waive any ‘cooling off’ time periods and agrees to the final sale of the sales session. This document will waive any laws that allow a client to back-out of the sale, including for buyer’s remorse!
Do NOT put a roadblock to your client’s wanting to hand you money. Offer payment plans. Having payment plans available to client works wonders in a variety of ways. First, they can be a good response to provide your client if you receive the dreaded “we want to but we can’t afford it” line. Second, they also provide a way for clients who want to invest in you to be able to afford you without being embarrassed if they happen to not have the means.
Use this as a response to the negative client comment. Don’t let that “you’re too expensive” comment deter you.
Payment plans, also known as Installment Contracts (affiliate), are so much more than picking when a payment is due and how you’re going to pay. The arrangement of payment is a contractually binding relationship that should be outlined in writing, as well as understood and agreed to by both parties. However, don’t let the fact that you’re “adding” on a contractual duty to the business relationship scare you aware. It really IS as simple as arranging time and payment amount. Before offering payment plans come up with the chosen methods of payment, how soon you want to be paid (balanced against the amount of the order) and any consequences if they aren’t.
Product Design and Delivery Agreements
Another line of defense against running into a client changing their mind is to have a product design agreement (affiliate), specifically for high dollar cost-of-good items like albums. This document safeguards against a similar situation as above by having the client approve the album proof design and put it in a legal document agreeing that they have reviewed the proof, are requesting no changes and it is approved for final print.
An accompanying document to the product design agreement is the delivery agreement. This agreement is a written acceptance of all products after the Client has had the opportunity to view them. This is especially helpful to prevent any potential “I didn’t get X product” statements after you have delivered the complete order.
Below you will find a visual timeline of the workings of how these documents work together to keep expectations managed and protect your business.
The information provided in this article is not legal advice, but general information on legal issues commonly encountered. Always consult an attorney.
Photo credit: Sarah Joy