The following advice is specific to Australia. Most Western countries have similar structures and the broad principles are similar. However, you should consult your own advisers for specific information.
Every time we work for a client, we have entered into a contract.
You don't need a signed piece of paper to have a contract, merely undertaking the work for a client is sufficient - although your client on the other hand has to pay you (give valuable consideration) for your work in order to complete the contract.
This article is not going to discuss the fine points of contract law, rather point out the necessity for photographers to use contracts in all their dealings with clients.
A contract can be a formal document listing the parties to the agreement, the services to be performed or the goods to be supplied under the agreement, and the consideration (payment) for those services or goods. Both parties should sign the agreement.
However, a formal contract isn't essential. Also called an ‘agreement' and many other terms, a written contract can be created by you writing a letter to your client, outlining the job and what you expect to be paid. In the absence of any further correspondence between you and your client, this letter becomes the contract.
The point to note is that the details of the contract have been written down. You can write a letter, fill in a pre-printed form (which is quite usual for wedding and portrait photographers) or have a lawyer draw one up, but the only contracts that are any good are written ones. As they say, a verbal contract isn't worth the paper it's written on!
Even though verbal contracts are legitimate, if there is a problem they are very difficult, perhaps impossible to enforce.
A contract can outline terms and conditions, such as payment being required within seven days, or that the client will ask guests not to take photographs at the wedding. For advertising work, it might also deal with payment for wet weather days when shooting isn't possible, or who is responsible for organising the talent.
However, a contract can't require either party to do something that's illegal, so in the wedding example above, requiring a client to prevent their guests from taking photographs will probably be unenforceable, unless your clients in turn are prepared to create contracts with each of their guests (and some celebrity weddings do just this).
Similarly, most consumer and trade practices laws cannot be overcome by a contract.
The main issues to be covered by a contract are:
A contract should clearly state who the photographer and client are, including their respective addresses and contact details so there is no source of confusion.
The contract should clearly outline what the photography involves. The amount of detail will depend on the job. A family portrait contract might be described in three or four words; a wedding contract might need to be more specific and include a list of photographs that are required by the clients; and a commercial or advertising contract can be so involved that the contract will refer to another document that sets out all the conditions and issues involved, such as who is responsible for hiring the models, who pays the models, who gets permission for the location, who pays for the location, who hires the model builder, who is responsible for bringing the product... It is surprising the level of detail that needs to be covered for high end advertising, corporate and commercial shoots.
A wedding photography contract will specify a particular date, but an architectural shoot may specify a deadline date, meaning the photographer is required to deliver photos by a particular time, but otherwise can choose the particular days and times for the photography.
It is important to outline payment details, including when payment is required. Some contracts can stipulate a fixed price, whereas others might refer to a price list or an estimate provided earlier.
Contracts should be written in simple to understand language, especially when it comes to payment details, so there is no confusion.
One of the main reasons for having a contract is to clarify who owns copyright. This is particularly important for wedding and portrait photographers when dealing with domestic clients because, in the absence of an agreement or contract to the contrary, copyright is owned by the client (under Australian law).
For a business-to-business job, such as commercial and advertising photography, the photographer automatically owns the copyright - unless the client has a contract that stipulates otherwise (again under Australian law).
Without a contract determining who owns copyright and what licences are provided, a photographer can find himself or herself being unable to use their own photography for promotional and marketing work, or even including in their own portfolio. Even worse, you might not be able to copy your own work for another client if you don't own your own copyright!
Contracts cover issues other than photography. Stock and advertising photographers generally require model and/or property releases, but beware that for a release to be valid, you need to give the model or property owner something in return (valuable consideration). This could be a copy of the photograph.
A good contract will also include sections to protect you against unforseen situations or circumstances beyond your control - such as bad weather, prints fading when hung in direct sunlight, and non-payment of your fees.
The AIPP and AIPA (NZ) have a number of sample contracts for their members on their websites. These are a great starting point for creating your own contracts and/or forms, although legal advice may be required to fine tune them for your particular circumstances.
The information in this article is general in nature and should not replace personal advice given by your own legal and financial advisers.