Contracts for Portraits?

[enotoarts]

I was just wondering, do you have clients sign a contract if they are just getting a portrait sitting done? I know that you would get one if you are photographing a wedding or photographing for stock photography but what if it is just a regular portrait sitting?

[Kym]

I would just so there are no questions about © , payments etc.
It's safer for you and your clients

[ricktas]

A portrait is still covered under 'domestic portraiture' in the copyright act, the same section as deals with weddings. So if someone commissions you to take their portrait, under the copyright act, they own the copyright (just as applies to weddings). So any contract should take into account that the laws that apply to portraiture are the same as those that apply to weddings.

Note that portraiture taken for commercial purposes (say portraits of staff for a brochure) are commercial not domestic.

[Kerrie]

Just to clarify......

The copyright belongs to the person you took photos of, but you, the photographer, own the photos/files.? And they need to purchase them if they want them.?

[kiwi]

The copyright is owned by the client on capture, but yes, you have the photos on your hard drive and the client doesn't have them.

Tricky and I have no idea whether the client can demand them from you (I suspect not) but you cant use them either for any commercial reason (I suspect)


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[ricktas]

The copyright is owned by the client on capture, but yes, you have the photos on your hard drive and the client doesn't have them.

Tricky and I have no idea whether the client can demand them from you (I suspect not) but you cant use them either for any commercial reason (I suspect)


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Which is exactly why a contract is a recommended protocol. It would/should specify the terms of the arrangement. Things like, until full payment is made, all goods (photos) are owned by the photographer. If people take out the photographs, it should be the same as any other generic contractual agreement, for any goods/services

[kiwi]

Yup, you have rocks in your head to do any shoot without a contract, free, paid, family, friend or stranger


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[farquar]

Yup, you have rocks in your head to do any shoot without a contract, free, paid, family, friend or stranger

Have to disagree there.

I've shot 400 odd family/kids portrait shoots in the last 3 years - 0 contracts.

The experience I offer is really relaxed, fun and child focussed - contracts don't really fit in there for me.

At the start of the relationship I try and build with my clients, I think it is really important to gain their trust. I find it too legalistic and formal to ask them to read through a legal document and then to sign on the dotted line. I can see on paper why other photographers do it, but even if I had 1 in 400 ask me to 'give them their files that they own the copyright of' - I still wouldn't add the step of contract signing to my workflow. I don't really care to much for 'what ifs'.

[kiwi]

I wish you luck


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[jeffde]

I don't charge usually for a portrait sitting (ie no sitting fee - i take a booking fee which comes off there print purchases) and rely on print/ cd sales - when they purchase the prints they sign a model release (or contract) which gives me copyright.

I have done a "fee for service" type job - covering family reunion dinners, engagement parties etc - in that case i give them a CD - no model release and they own the copyright as the "commissioned me" for the photos.

[enotoarts]

I just found this information, it may be helpful to others.

"Who owns the copyright in photographs?
The Copyright Act 1968 (the Act) contains provisions that determine who owns copyright.
In the case of photographs, the photographer is generally the first owner of copyright. There are however a number of important exceptions. These are:
• when an agreement has been made to the contrary: You are free to make an agreement with a client or employer to determine who will own copyright and for which purposes. A prior agreement will also override any of the following exceptions. It is generally a good idea to ensure this agreement is in written form.
• photographs taken in the course of employment: If you’re on staff (as opposed to working freelance) your employer is generally the first owner of copyright in any photos you take in the course of your employment.
This does not apply if you are working as a freelance photographer and have not agreed to be covered by an industry agreement. Generally, freelance photographers will retain copyright in their work. It should also be noted that the organisation that commissioned the photograph will still be entitled to use it for the purpose for which it was commissioned.
• working for a newspaper or magazine: Photographers working for newspapers or magazines (excluding freelancers) are in a unique position, as copyright is split between the employee and employer. For photographs taken before 30 July 1998, your employer owns both the newspaper and magazine publication rights, while you own the copyright for all other purposes e.g. photocopying. In the case of photographs taken after 30 July 1998, you own the copyright for the purposes of photocopying and book publication. Your employer however owns the copyright for all other purposes including online and magazine publishing, and digital copying.
• commissioned photographs: If you took a commissioned photograph before the 30 July 1998, your client will own the copyright. If the photograph was taken after 30 July 1998, you own the copyright. The only
exception to this rule is if the photograph was commissioned for a private or domestic purpose (like a wedding or christening). In this case your client owns the copyright, unless otherwise agreed.
• photographs taken under the direction or control of the Crown: The copyright in any photographs created or first published, under the direction or control of a Federal, State or Territory government, is owned by the Crown. For example, photographs of roads taken by an employee of the relevant government department in the course of their duties.

What are the rights of copyright owners?
Copyright owners have a number of exclusive rights. These include the right to publish a photograph for the first time, reproduce the photograph and communicate the photograph to the public in an electronic form.

What are my rights as the creator of a photograph?
Whether or not you own copyright in your photographs, as the creator, the law grants you certain moral rights that have to be taken into account by users of copyright material.
Firstly, you have the right to be attributed as the creator of your work. Additionally, your photograph must not be falsely attributed to someone else. Secondly, you also have the right to take action if your photograph is utilised in a distorted manner or in a way that is prejudicial to your reputation. Moral rights are distinct from copyright (which are economic rights) in that they are not payable or transferable. Copyright Agency Limited (CAL) does not monitor moral rights."

Copyright agency limited
updated march 2009
"copyright for photographers.pdf"

[jasevk]

Yup, you have rocks in your head to do any shoot without a contract, free, paid, family, friend or stranger


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Could not agree more! I use a contract no matter WHO I photograph.

[jasevk]

I don't really care to much for 'what ifs'.

So - your client enters you're photograph into the "$1m photography competition" as the copyright owner and wins top prize... Do you care at this stage?

[gabby]

Doesn't sound like the photographer gets much of a deal, legally.

[ricktas]

Doesn't sound like the photographer gets much of a deal, legally.

Remember this section of the act is about portraiture, not all photography. Other than that mentioned above, the copyright belongs to the person who presses the shutter (not the gear owner).

[reaction]

Contracts are good whenever $ is involved. The contract can state the copyright stays with the tog, which is a good idea for many reasons. When no $ is involved, it usually means friends and it's just too much bother. Things can only go bad.

"In this case your client owns the copyright, unless otherwise agreed."

[kiwi]

I'd suggest contracts for family and friends or for $0'are even more important. It doesn't have to be a 56 page legal book

[reaction]

what do you see are the pitfalls of no contracts for family and friends ?

[kiwi]

id prefer you say image release

In the main to stop arguments about "you never said you couldnt post to facebook" blah blah blah etc

[reaction]

I see. That make sense. I never thought of that since the photog already has the rights to use the images however to promote their own business. I guess many ppl have the idea that the pics belong to them and you can't use them in any way w/o their consent even if they didn't pay for them.

[farquar]

So - your client enters you're photograph into the "$1m photography competition" as the copyright owner and wins top prize... Do you care at this stage?

Find me the competition where the submission criteria is "you must own the copyright but anyone else can be the creator of the image" and I'll go you halves in the $Mil.:th3:

[ricktas]

Contracts are good whenever $ is involved. The contract can state the copyright stays with the tog, which is a good idea for many reasons. When no $ is involved, it usually means friends and it's just too much bother. Things can only go bad.

"In this case your client owns the copyright, unless otherwise agreed."

NUP

Copyright cannot STAY with the tog. Copyright belongs to the client under the Act, in relation to this threat topic. You cannot have in your contract that copyright STAYS with the photographer, when it was not with the photographer to begin with.

Contacts need to be carefully worded. A good(?) lawyer will argue the use of the word STAYS (or similar) in a contract, if you end up in court, and they could deem the photographer's contract invalid simple by the use of that one single 4 letter word. Words like stay/retains/remains with, etc should not be used on a domestic portraiture contract in relation to copyright being given to the photographer, from the client.

[ricktas]

I see. That make sense. I never thought of that since the photog already has the rights to use the images however to promote their own business. I guess many ppl have the idea that the pics belong to them and you can't use them in any way w/o their consent even if they didn't pay for them.

No they don't! Not unless that is also written into the contract. You cannot use a person's (client's) likeness (the photo of them) for commercial gain, without their permission. Use to promote a business is classed as commercial gain.

[ricktas]

Farquar. I would be interested to know your payment options when no contract is negotiated between you and the client(s). Do you have full payment, up front? Payment before any photos are provided to the client?

How do you deal with non-payers? When you cannot really lodge them with a debt collector when there is no contractual agreement regarding the terms of the transaction?

I wonder if anyone has even found themselves in court, where the client has not paid, but as the client owns copyright, they are in court to demand the photographer hand over their photos. Would be also interesting to see how a magistrate would deal with this situation. Not Australian, but Judge Judy would have fun with that one, if she was in Aus..hehe

[reaction]

Contacts need to be carefully worded. A good(?) lawyer will argue the use of the word STAYS (or similar) in a contract, if you end up in court, and they could deem the photographer's contract invalid simple by the use of that one single 4 letter word. Words like stay/retains/remains with, etc should not be used on a domestic portraiture contract in relation to copyright being given to the photographer, from the client.

Wow that's scary. As the act above, some cases the copyright was with the client, some was with the photographer. If you say 'given to the photographer' in the case where it was already with the photographer it wouldn't make sense. That means there's probably no wording that would correctly deal with both cases?

Would "The photographer owns the copyright to all photos" cover these cases? It sounds like it's missing something.

[ricktas]

Wow that's scary. As the act above, some cases the copyright was with the client, some was with the photographer. If you say 'given to the photographer' in the case where it was already with the photographer it wouldn't make sense. That means there's probably no wording that would correctly deal with both cases?

Yep. Whilst the chances of ending up fronting a court are minimal. I certainly would not want to be on the receiving end of a lawyer who argued the case for 'stays with/remains with/retains' copyright being incorrect and thus arguing for the contract to be made null and void. And you can bet one of them would if it meant winning for their client.

[Black Dog]

A lot of contract aren't legal but do help avoid legal battles. For example a lot of the indemnity waivers you sign at sporting clubs, or the big sign saying no liability at commercial parking places are a bluff. They are still legally liable. People assume they have given away their rights so don't persue action. Can be good for business.

An extreame example of this would be you are sick and sign a form saying your Dr can terminate your life……..That release won't hold up in court and the Dr still get a murder charge. I think it comes down to the fact that any contract can not absolve you from the laws governing the action.


On a side note I always add a copyright notice to my metadata so it stays with any digital copies. This way if it ends up in a publication the publication should know better and I do have better legal case. Of course there are ways to strip metadata, but it doesn't cost anything to add it and LR will even do it automatically if you set it up.