Contractually Obligated

Two tennis fans wait for the rain to stop during a Canadian Open tennis tournament in Toronto, 2017. All other spectators left their seats to find shelter inside the stadium. These two were prepared for a rainy day.

This is another view-from-my-office photo.

Yesterday I was exchanging e-mails with a photographer who shot a commercial job two months ago. The photography has been completed, the photos have been delivered, and the customer has paid. Two months ago. His customer is using the photos in transit ads. The photographer asked if they should charge more for this usage.

My first question was, “What does your contract say?”

“I don’t have a contract,” wrote the photographer.

The photographer said he didn’t use a contract because he assumed the photos were going to be used only on the company’s web site. Why did he make this assumption? Because last year he shot a job for the same company, without a contract, and those photos were used only on the company’s web site.

If you just give photos to a customer without any paperwork, what do you expect to happen? Is the customer supposed to guess the terms of use? Will you go back to the customer and say, “Oops I made a mistake. Can you give me more money?”

I’m not a lawyer but you can’t impose a contract after the work is done. You can’t change your price after the customer has paid.

There might be one saving grace for this photographer. If there is no contract stating otherwise, then the copyright belongs to the photographer. This photographer could claim that advertising use isn’t permitted because it wasn’t specifically allowed. Of course, it also wasn’t specifically denied. Nothing was discussed or specified by the photographer. If push came to shove, the photographer would probably prevail but they would most likely lose that customer.

Contracts Help Stop the Rain

If you do retail photography, most provinces legally require you to have a written contract. Check your province’s consumer protection laws which should indicate what information must be included in a contract.

Commercial photographers must use a contract with their customers. Without a contract, a business customer can’t legally use your photos. You must grant usage rights otherwise every use is a copyright infringement. A few business customers know this but most don’t.

The purpose of a contract is to prevent misunderstandings by either party. Contracts do not have to be complicated or filled with legalese. A contract basically spells out who does what, where and when. A contract is actually good customer service. You can have a verbal contract but if it starts to rain, you will get wet.

Don’t just copy a contract you find online and expect it to work for you. Your contract has to suit your business in your jurisdiction. Even then, your contract(s) must match the type(s) of photography you do. CAPIC has a generic template but this should not be used as is.

Never use a contract if you don’t understand exactly what every word means.

You should have your contract(s) reviewed by a contract lawyer, ideally one who is familiar with photography businesses. Yes it will cost several hundred dollars. Get a group of similar photographers together and split the cost.

Free Photos Need Contracts

In the early 1990s, I did some free photos for a friend who, unbeknownst to me, had one image printed as 24″x36″ glossy posters. The friend sold +10,000(!) posters and made tens of thousands of dollars. I got nothing. Had I known the pictures were going to be commercialized, I would’ve had a contract in which I received a percentage of sales. I learned my lesson.

If you’re doing personal pictures for a family member or friend, you don’t need a contract. But if you’re doing pictures for a family member or friend’s business then you should consider a contract even if you do the work for free (actually, charge them $1). A contract may prevent misunderstandings later.

If you do free photography (but again, charge $1) for a charity, a school, or any similar organization, absolutely have a contract. You want to prevent misunderstandings and eliminate your liability that might arise from misuse of the pictures.

 

Getting Paid

If you don’t print your own money then you have to make money the old fashion way by having a job. But a job works only if you get paid. (National Film Board of Canada / Library and Archives Canada circa 1955-1956.)

There have been only three times when I had difficulty getting paid. All were in the mid-1980s when I was just starting out:

1)   My first corporate customer was a small pharmaceutical company. The company wanted the photos shot on transparency film because the images were for a slide presentation. I asked if they also wanted prints. No, they did not want prints, only slides. The job was done and the slides were delivered. The customer refused to pay because I did not deliver prints.
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Saving For The Future

This is another view-from-my-office photo from a Canadian Open men’s tennis tournament in Toronto, 2012.

How long should you save image files after they’ve been delivered to the customer?

A photographer should inform customers about their photo archiving policy. How long will you keep the photos? Can a customer depend on you, for years to come, to redeliver the photos? If you promise to archive photos but you lose them, can a customer sue you?
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Immediate Expensing and Income Tax

A Toronto police detective examines fingerprints using laser light. The photo was taken on opening day of the new Forensic Identification Services crime lab in Toronto, 25 October 1999.

This is another view-from-my-office photo.

Right now, most Canadian photographers will be doing their annual income tax. Some business expenses are not deducted in full but instead they are depreciated over time. Capital Cost Allowance (CCA) is used to depreciate the value of photo equipment, computers, and other business purchases that have continuing value.
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Cheap Is Not A Bargain

If you wear eyeglasses, this is how your business portrait should look. No reflections on the lenses, no greenish blotches from the anti-glare coating on the lenses, no lens refraction on the sides of the face, minimal shadows caused by the frames, both eyes fully visible, the whites of the eyes are white, good colour in both irises, and nice catchlights in both eyes.

Many professional photographers know how to achieve results like this and it isn’t difficult. If your business headshot with eyeglasses doesn’t look like this then your photographer failed.

A company this week asked to have its business headshots retouched. The photos were shot by a cheap photographer.
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A Close Shave

Removing a small amount of facial hair is usually easy to do. But realistically removing a beard, moustache or a lot of stubble can be impossible.

One of the more difficult, if not impossible, retouching tasks is removing facial hair. Removing a beard or moustache can be impossible to do because the facial hair has to be replaced by realistic-looking skin. This skin usually has to be copied from another similar photo if available. Also the photo retoucher has no idea what the person’s jaw and mouth look like under the facial hair. The retoucher can only guess and the results will never be accurate.
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Retouching Business Headshots and Other Portraits

Of course I’m going to retouch my own headshot and make myself look as good as possible.

Almost all business headshots and other portraits need to be retouched. This is often done to fix mistakes the photographer made or to repair something that was overlooked such as a crooked tie. Being neatly groomed will make you appear more competent.
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