• Business and Management

Expert advice on photography contracts with The LawTog.

Zenfolio sat down with Rachel Brenke to talk photography contracts. Rachel–a multifaceted entrepreneur, lawyer, and photographer–created Brenke Brands, which includes Fit Legally, The Lawtog, and is the author of seven books. She hosts the Real Biz podcast and founded a boutique niche law firm. Aside from her extensive career, Rachel is also a military spouse, mother of five, and a triathlete. She’s been able to live her dream and travel the world with her family while building a successful empire. Read on to learn what Rachel has to say about contracts: 

What is a contract? 

Legally protecting your business is one of the reasons I created The LawTog. I was actually a photographer before I was a lawyer–I did photography all through law school. 

This is a passion topic of mine, as a professional photographer. I know a lot of people are afraid of contracts because they think they’re going to scare people away, and I have found that the absolute opposite is true. I just hate surprises, and contracts really help prevent some of those. 

Before I jump in, though, I do want to give my little fine print disclaimer: I am a lawyer, but I’m not your lawyer. I’m licensed in multiple states in the US, and my law firm services internationally. This presentation isn’t creating an attorney client relationship. This is just general legal information, business advice you will get as well since I am an MBA and business coach. I did that prior to also becoming a lawyer and prior to being a photographer.

If you know me at all, you know that I am a big proponent of contracts. So it’s just one piece of the tools that we have available to us as photographers to be protected. And what does that mean? That protection is a couple different things.

We can protect ourselves. We can protect our personal assets, our business assets. We can protect our intellectual property, which would be our photographs or videos, or really any content that you create. But it’s also protecting the relationship that you’re going to have with your client.

Contracts are like the Swiss army knife, almost, of all these legal protections. But there’s this misnomer that it has to be just one physical printed document or online signing document. As a lawyer, I much prefer that if you ever have a problem, everything is in one central place. 

Even with some [photographers] that are not using formal contracts, you are still creating contracts. You just don’t realize it. A contract doesn’t just have to be one piece of paper. The most common ones, as you see on the screen, we use them everywhere. The device that you are on, you had to agree to what’s called a EULA, end user license agreement, to utilize that product or the system that you’re on. We’re all covered in contracts everywhere.

So why do so many photographers not want to use formalized contracts in photography? 

I’m going to try to pick that apart for you. Typically, when we hear the term photography contract, people are referring to the services contract.

This is the one that’s between you the photographer and the client, that is going to basically govern the entire relationship that you have with the client. What’s so important about this is that if it’s properly drafted–not just legally enforceable, but properly drafted–having a services contract is not only going to create the legal relationship for you, but it’s also going to build the buyer’s confidence in your client.

The more clarity that they have, the less potential for miscommunication–they are going to feel more comfortable with you as a professional.

I don’t have the specific numbers, it’s just a colloquial percentage: I would say ninety to ninety five percent of the problems that come through in a services based relationship are around lack of communication. Very few times do I see that the photographer is actually going to intentionally breach an agreement or intentionally not fulfill something. 

Oftentimes, it’s the perception that the client may have, and not necessarily the truth of what happened. And that’s where a contract can be a really good way for you to stay out of my law firm and us having meetings and having to pay for it, is by having this one main services contract that’s going to create the whole relationship.

You want to build that buyer’s confidence, but I take it even a step further. I want to ensure that the contract is also going to do a couple of things for me–it is going to be a customer service tool. 

So for example, you may write in there if you have a payment structure, maybe a client misses a payment due to death in the family. I want to be able to write in some safeguards that allow you, the photographer, to be able to say, “I’m so sorry your dad died. I’m happy to allow you to not have to pay the payment right now, not have to pay the late fee. You can just wait a week or two.” Then you agree on another date.

Having it properly written by a lawyer is key. By having it properly written by someone that knows how to use contracts, you can be comfortable with being able to waive that without waiving all other breaches. We want to make sure there is language that allows for you to waive that one breach without waiving all other breaches so that you can have everything else be enforceable to you.

I share all this information to say–having someone in the photography industry that knows exactly what’s going to happen when you deliver a contract, having it drafted properly–is going to reduce a lot of problems for you. You don’t have to come to me, there are other lawyers out there. But these are kind of the things I want you to look for because these are ways that not only can the contract be enforceable, but it really integrates into the relationship that you have with your client seamlessly, which is what we want to do.

Contracts are everywhere!

I already gave examples on the importance of services contracts. That can be applied to all these types of contracts: 

• Services contract with a client.
• Privacy policy and website terms with potential clients.
• Disclaimers/disclosures on your website and marketing materials.
• Model release and Testimonial release for marketing. 

You see bullet number four, model release–many photographers know about that as well. That’s the document where the client is giving permission for you to utilize their face in your marketing, and that’s where the model release comes in. 

Your privacy policy should be on your website, and it is required in some states to have that. Disclaimers and disclosures are also another example of contracts, whether you realize it or not–this should be on your website and marketing. Very specifically, we see this in newborn photography when people are utilizing editing for poses when you have the hanging baby swing, or something like that. It’s always good to have a disclaimer about how it was created.

We’re also seeing this with AI. If you’re already using AI, you should have a disclosure that you’re going to be utilizing AI and editing. Why? Because it is consumer data and your clients’ faces are going to be uploaded into these AI systems when you’re using them, and then it’s pushed out there. 

It is the same reason that I highly suggest that model releases are allowed to be declined. There are situations where clients don’t want you to use their photos in marketing or in AI systems–someone may have a foster child or a sensitive job and they’re not able to have an online presence. You don’t want to put their safety or compromise their employment. 

Think about these things when it comes to utilizing contracts. They are here to set the expectations of the clients, create customer service tools, reduce miscommunication, and be there as a legal backbone for you. As creative, sometimes we don’t feel like we can say no, or we have a client that pushes, pushes, and pushes. You may not want to have a confrontation–you can point to the contract as the one that’s going to set the tone.

So the bottom line is no matter if it’s the services contract, if it’s disclosures on your website, it’s a privacy policy–a contract is an agreement between your business and another party regarding a very specific action, and that’s really all it boils down to. 

And like I mentioned, they’re everywhere. You log on to YouTube, it’s there. You’re using Instagram, you’re agreeing to it. So why is it so different for us as photographers? Why would we not utilize them? Even if you’re not utilizing a structured written contract, be mindful, you may still be entering into contracts. They’re just on unspecified terms–they’re not going to help you if you end up having a dispute.

Pro tip: If you have second shooters or assistants, Rachel recommends using a Non-Solicitation and/or a Non-Compete contract. This puts you in a better position to take legal action if the assistant solicits or sells to your clients for their own gain, outside your business. 

At what point should photographers be presenting contracts?

In the timeline of your workflow, once the client is ready to commit, that is when I think the contract should be delivered. If you try to do it after the session, you can lose a lot of buyer’s confidence. The services contract should be written in chronological order, from the inception of the relationship all the way through the end. If you deliver the contract after the session, you’re missing out on that key piece of building the confidence, and you’re also not really setting the expectations. 

If you don’t get the contract signed before, you don’t know if they’re going to show up at the session date. You may reserve the date–they’re not contractually bound at that point to those terms. You may require that they have to pay you a certain amount and if they don’t, then the contract’s not enforceable. The contract’s not valid. But if you’re not getting that done until after the fact, you lose control over the outcome. 

I don’t put any new client on my calendar without a signed services contract. Doesn’t have to be the model release yet, but service contract and the payment–whether it’s in full, half, the initial payment–whatever that looks like. I need to have signature execution and payment exchange.

Best practices for contracts:

Follow these best practices from Rachel to ensure a positive experience for both parties. 

1. Digital signatures: Can both parties easily sign? Make it as easy as possible for your clients. 
2. Make sure the contract is clearly a contract: Don’t hide contract terms in a questionnaire–you have to make sure there is an overt offer and the acceptance of those terms.  
3. Signed by an adult: When photographing children and high school seniors who are under eighteen, parents or legal guardians should be signing the contracts.
4. Cancellation of contract clause or document: This will give clarity for both you and your clients on how to cancel or void a contract, grounds for cancellation, what–if anything–would be refunded. 

Read about a contract you’re missing? Visit TheLawTog website for their full suite of lawyer-drafted photography contracts. For more photography business and contract tips and examples from Rachel, watch the full webinar with The LawTog here:

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