This article has been written by Shruti Chaurasia, pursuing a Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho.

Introduction

In this age of social media, brands are seeking ways to source photography and videos for their brand on social media platforms. To provide security to both the hiring party and the photographer, the parties enter into a branding photography contract. A branding photography contract is a written agreement. It describes the services to be performed by a photographer hired by the brand along with the cost of service, term of the contract, responsibilities of both the parties, etc. Through this written agreement both the parties to the contract are bound to the agreement until the job is done or the contract is terminated for other reasons. This article aims to provide an overview of the must-have clauses in a branding photography contract along with an example on how to word those important clauses.

Why does every product photographer need a contract?

A well-drafted branding photography contract unravels each step of the photography process, it ensures a fair deal throughout the brand photography and sets out a framework of the job. A written agreement in the form of a contract is always better than a verbal agreement. Thus, a written photography contract is a photographer’s chance to finalize the client’s expectations about deliverables, time frame, and more before the actual work begins.

You’ll likely find that, though it’s more work up-front, having a written photography contract ultimately cuts down on communicatory problems and eventually provides more legal protection. Following are the major reasons why the contract is essential:

• It provides a summary of the services anticipated.
• It assists to avoid miscommunication between parties.
• It explicitly states details.
• It provides a reference point at the time of controversy.
• It outlines details of payment and delivery of pictures.
• It functions as a reference record for the parties when necessary.
• It also tells and specifies how to end a contract-based relationship before the end of any job (contract termination).

Important clauses 

A perfect brand photography contract must contain well-drafted clauses that shall cover all potential situations. The clauses shall cover up situations as to the process of delivery of the final images to the client, a clause to ensure the client agrees to the photographer’s style of photography, a commercial release clause of the photographer’s copyright wherein the photographer can either limit the commercial release or assign the copyright ownership over to the client. Let us look briefly into drafting some of the important clauses of a branding photography contract.

General information

The first and foremost part of the contract comprises three important clauses namely the Title clause, Names of the parties clause, and recitals which provide general information of the parties to the contract and nature of the contract itself.

1. The title clause describes the nature of the contract and also includes the execution date of the Contract. For example:

“This brand photography contract (hereinafter referred to as “Contract”) is entered into on 6th day of March 2021 (hereinafter referred to as “Date of Execution”).”

• To identify the parties binding themselves with the provisions of the Contract it is pertinent to state the names and addresses of the parties. “Names of Parties” clause can be worded as:

“ABC Pvt. Ltd., a company incorporated under the Companies Act, 2013 having its registered office at ___, through ___________its duly Authorised Representative (hereinafter referred to as “Photographer Company”) of the First Part; 

AND 

XYZ Pvt. Ltd., a company incorporated under the Companies Act, 2013 having its registered office at _____, through ___________ its duly Authorised Representative (hereinafter referred to as “Client”) of the Second Part.”

• The circumstances under which the Photographer and the Client have entered into the Contract and the background information of the Contract are mentioned in the initial clauses of the agreement. Recitals are the first clause in the Contract that mentions the intentions of the parties entering into the contract. Recitals always start with the term “WHEREAS”. Here is an example of Recitals:

“WHEREAS:

• The Photographer Company is engaged in the business of ________________________. 

• The Client owns the brand under the name “___” and has many outlets in India.
• The Client is desirous of hiring the Photographer Company for the official photo-shoot of its Brand, the Photographer Company has agreed to provide its photography services according to the terms and conditions agreed between the parties herein.”

The effective date of the contract and the shoot date

By signing the contract, the parties are agreeing upon the effective date of the Contract as well as the shoot date. The effective date is when the obligations outlined in the contract begin. If one party fails to meet the obligations to the contract after this date, the other parties involved can sue for breaching the contract. 

The date can be put in two ways:

Dated October 8, 2020

Dated as of October 8, 2020

The first format is used when the execution effective date of the contract is the same. The slater format is used when the parties reach an agreement but do not sign it on the same date. When no effective date is mentioned in the agreement it becomes effective on the day when the last signatory to the agreement signs the contract.

It’s important to note the Shoot Date along with the timings and location because it clarifies the expectations of the Parties as it is the day on which the actual job is to be performed. It can be drafted as:

“Shoot Date Clause

• The Photographer Company and the Client unanimously agree that Shooting shall commence at (location) starting at __am and ends at __ pm on ( Date). 

• The Client agrees that if the Client does not arrive at the appointed time for the Shoot, shooting will commence at the scheduled start time and end at the scheduled end time. 
• The Client agrees that the Client shall pay (__) per additional hour if the Shoot goes beyond the scheduled end time.”

Description of work

It is important to specify what work the photographer will complete for the client, including the exact services to be rendered, the date by which they will complete the project and any major deadlines they need to meet throughout the project. A description of the post-production services should also be included in this clause. Some of the items this section can include are:

• Equipment to be used by the photographer and who will provide it.
• Products to be shot, who will provide them, and how they will be received.
• Props or models to be used, as will be specified by the client.
• Specify whether the editing process will be collaborative with the client’s input.
• The number of drafts the photographer will produce.

The clause can be drafted as:

“Description of Work

• The Photographer Company will be the sole and exclusive photographer for the Shoot. 

• The Photographer Company shall be responsible for arranging the list of equipment and props as mentioned in Schedule 1 of the Contract along with the assistants necessary to conduct the services agreed in the Contract.

• The Client shall finalize the product and models required for the Shoot and provide the Schedule of the Shoot day along with the list of products to the Photographer one week prior to the Shoot.
• The Photographer shall edit the photos in accordance to the Client’s input.”

Payment

The Payment clause shall be drafted very transparently as it clarifies how the Client will have to pay the Photographer for the services. This clause specifies the following:

• The total service fee.
• Method of payment.
• Any deposits the client should pay ahead of starting the project.
• A Payment schedule that outlines whether the client will have to pay at major milestones, or upon completion of the entire project.

The Payment Clause can be drafted as:

“Payment

• The Client shall pay the Photographer Company a total amount of INR ___ for the entire Project (hereinafter referred to as the “Charges”) plus applicable taxes in the following manner:

Date	Stage	Amount
Date 1	Booking Amount	INR _____ plus taxes
Date 2	Partial Payment	INR ______ plus taxes
Date 3	Final Payment	INR ______ plus taxes

 

• Payment will be made by (payment method).
• The travel charges shall be covered by the Client.”

Cancellation and rescheduling clause

This clause is very important because there is always a chance that the shoot can either get canceled or rescheduled. A well-drafted cancellation and rescheduling Clause allows the parties to cancel or reschedule the event without any major dispute. Following are the points that should be included in this clause:

• The last date by which the client can receive their full deposit back after the cancellation.
• The Date by which the client can receive a partial deposit back if he cancels the shoot.
• The time that the client has to reschedule the shoot without paying additional fees.
• Mention if the client has to pay any additional fees by rescheduling or cancelling the shoot.
• Insert a refund statement that specifies: conditions to be fulfilled by the client to receive a refund, conditions to be fulfilled by the client to receive a partial refund and the policy for a refund in case of loss or damages.

This clause can be drafted as follows:

“Cancellation and Rescheduling

• The Client shall receive a full refund of the Booking Amount if the Client cancels the Contract ___ days before the Shoot.

• The Client shall receive a partial refund of the Booking Amount if the Client cancels the Contract ___ days before the Shoot.

• The client shall not receive any refund of the Booking amount if the client cancels the contract one day prior to the shoot or on the day of the shoot.
• The Booking amount shall not be refunded if the shoot is rescheduled.”

Release of images

This clause specifies how the client will receive their final images. After all, that’s what the client is paying you for! This clause shall explain everything about image release to the client including the following points:

• What and how many images the client will receive.
• The file type of the images, whether the photographer will send RAW files or only final images or both.
• How the client can use the images.
• What images the client can use with royalties paid to the photographer.
• Whether the photographer can continue to use the images from the shoot past the completion of the contract, perhaps as a portfolio or otherwise. This clause can be drafted as follows:

“Release of Images

• The Photographer Company shall provide three photo sets: black & white, original color, and corrected/retouched copies to the Client. 

• The Photographer Company shall perform limited color correction and retouching prior to delivering any copies of photos to the Client. 
• The Clients shall have the liberty to request additional copies of photos within ___ days of ____________________.”

Liability

There is risk involved with every kind of job. Similarly in the type of contract following are the risks that can be covered under this clause: 

• What happens in the case the images or image storage gets corrupted? 
• What happens in the case of the loss of images?
• How the photographer will handle a timeline extension.

This clause can be drafted as follows:

“Liability

• If the Photographer Company fails to perform to the contract due to an injury, illness, an act of God, an act of terrorism, or other cause which is beyond the control of the Photographer Company, the Photographer Company shall make every effort to secure a replacement. 

• If the situation should occur and a suitable replacement is not found by the Photographer Company, responsibility and liability is limited to the return of all payments received for the Shoot. 

• If digital files have been lost, stolen, or destroyed for reasons beyond the Photographer Company’s control, including but not limited to camera, hard drive, or equipment malfunction, the Photographer Company’s liability is limited to the return of all payments received for the Shoot. 

• In the event Photographer Company partially losses the originals, the Photographer Company shall hand out the amount of the exposures lost based on the percentage of the total number of originals. 
• The Photographer Company shall not be held liable for the loss of images beyond the lesser of the final delivery of all products included in the package for ___ days/months/year.”

Copyright

A photographer would want to retain copyright and grant the client use rights. This means the photographer will have ownership of the photos whereas the client will only have permission to use them. In this type of contract, the client will want to use the photos for an ad campaign or a product label. That is why this clause should be drafted carefully as it will come in handy at the time of dispute in the future. The Copyright clause can be drafted as:

“Copyright

• The photos produced by the Photographer Company are protected by _____ Law.

• The photos shall not be reproduced in any manner without the Photographer Company’s explicitly written permission. 

• The Photographer Company shall upon final payment by the Client, transfer limited copyright ownership to the Client. 
• The Client shall have the right to use the photos for the ad campaign, product label, share on social networking websites, and on vendor websites as long as the photos remain unaltered and textual credit is explicitly given to the Photographer Company.”

Conclusion

Having a standard photography contract that fits both party’s needs is a must for a better outcome of their professional work and relation. The contract is away, the parties feel like they can trust each other to deliver on the promises each of them is making with the other party to the Contract. As a result, a brand photography contract must include all the above-mentioned clauses with substantial details.

References

1. https://expertphotography.com/10-things-your-photography-contract-must-include/
2. https://www.mdlinglphotos.com/-branding-photography-agreement—05-2018 

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