Negotiating contracts is my least favorite part of being a food photographer! Sometimes I feel like I need a law degree to do this job. It can be overwhelming and intimidating at first, but I promise that once you get the hang of it, it isn't that bad. In this post I'll walk you through a few key things that you want to make sure are always in your contract!
Disclaimer: I am NOT an attorney and I am not an accountant. This post should be interpreted as my opinion and not legal advice. I highly recommend seeking advice from a personal business attorney and CPA about your specific situation.
Why do I need a contract?
If you're asking this question, you've clearly never been screwed over by a client lol. But in all seriousness, a contract protect you, your business, and your intellectual property.
Even if you're working for free or in exchange for product (which I advise against anyway), you still need a contract!! A contract tells the brand exactly how they can use your images and more importantly, how they can't use your images.
If you have a good contract then you have something legal to refer back to in cases of late payments or unauthorized photo usage.
Also, learning how to read your contracts in incredibly important! Most brands will want to use their own contract (which is fine) but there will always be edits that you need to make!! When a brand is writing a contract they are only looking out for their own interests. Most large companies have huge teams of lawyers whose job is literally to try to get whatever they can out of you and hope you either don't read the contract or don't know any better. Which means the only person advocating for your interests and your rights is YOU! The unfortunate reality is that if you just accept whatever contract you're being sent....you're probably getting screwed over somehow. Now I'm not trying to talk sh*t about brands, I totally get why they operate the way they do. I'm just pointing out that you need to be vigilant and advocate for yourself.
What Should be in Your Contract?
This is not an exhaustive list and there is a lot more that goes into a solid contract, but these are things I would triple check are included! I highly recommend working with a lawyer to make sure your contract is tailored to your needs!
Scope of Work
This should included all the specific deliverables that have been agreed upon.
- Recipe & Content Development
- Recipe details including ingredients and instructions
- 5-10 photos of the recipe including:
- Process shots of the key steps in the recipe
- At least 1 horizontal and and 1 vertical final shot with the product
- At least 1 horizontal and 1 vertical final shot without the product
- Sponsored Posts
- 1 static in-feed Instagram post (at least one photo must include the product)
- 3 Instagram story slides
- Captions for approval
This is pretty straightforward but you need to make sure all timelines are spelled out including any approvals! Often client's will want to approve ideas, etc. before you start actually creating content. If you don't have a timeline for approvals, this can drag on forever.
It's also important to include a timeline for the client! For example, if they're supposed to send you product by X date but they don't....then you shouldn't be expected to still send in all the photos by the original contract date. Both parties need to be held to their own timelines so that everything goes smoothly.
Make sure you list out the hours that you can be reached and how long it should take for either party to respond to any communication. There's nothing worse than a client taking 2 weeks to get back to you about something that is time sensitive.
This is also important for setting boundaries. Personally, I don't give out my phone number or let clients contact me after normal business hours.
How Work is Evaluated
It's completely normal for clients to request additional small edits, but you want to make sure you're protected so that they can't ask you to reshoot everything for some arbitrary reason.
I always make sure to include an artistic release that says that the client has spent a satisfactory amount of time reviewing my portfolio and I will produce content in a similar manner and style. Because of this, dissatisfaction with my aesthetic judgment or artistic ability are not valid reasons for termination or non-payment.
This is also where I include reshoot fees and additional retouching fees.
There is a lot to consider in terms of payment. If you need help pricing your work, make sure you check out my pricing guide!
Make sure you have the following in your contract:
- How much you'll be paid
- Method of payment
- Payment due date
- Payment late fees
- Retainer or deposit (if applicable)
You also want to be sure to include a clause that states that they must pay you for all work completed! If they decided not to use the content or that they no longer want it, they still have to pay you for any work you've done.
Copyright & Licensing
In my opinion, this is the most important part of your contract! The two main things that need to be included are:
- Who owns the images?
- Who is allowed to use the images, for how long, and in what way?
So first of all, the photographer is the automatic owner of the copyright and there are very few circumstances in which you should give that up. You can read my post about copyright and licensing for more information about how to license your images!
A lot of contracts will contain scary language like:
"You agree to license [client] the exclusive, unlimited, perpetual, irrevocable, transferable, sublicensable, royalty-free right to use, reproduce, publish, exhibit, broadcast, amplify, whitelist, put paid media behind, transmit, and distribute the deliverables throughout the world in all media now known or hereinafter developed in connection with this agreement or the products without further permission from or compensation to you."
For all intents and purposes, this language basically gives the client free reign to do whatever they want with your images FOREVER. Instead you want to replace it with something with super specific terms.
Below is language from my contract, but once again I need to emphasize that I am not a lawyer and I cannot give legal advice!
Copyright Ownership: The photographer owns the copyright for any and all photos she takes pursuant to federal copyright law (Title 17, Chapter 2, §201-02, of the United States Code.) Any and all photos produced in connection with, or in the process of fulfilling this agreement, are expressly and solely owned by the photographer to use in the reasonable course of business.
Non-exclusive License: The photographer grants the client a non-exclusive license for all photos for commercial use on the client's social media, website, email and for internal non-advertising purposes without further permission or compensation [this is all based on the license you agreed to]. Any amplification, whitelisting, or paid media using the deliverables will require a fee of 10% of total ad spend to be paid prior to the execution of such paid media. Any usage not expressly mentioned in this agreement may be subject to additional licensing fees.
Prohibited Uses of Deliverables: Some uses of the photographer's property are expressly prohibited in order to maintain the integrity and quality of the photographer's reputation and work:
- Any resale of the photographs through direct or indirect means, including, but not limited to: selling the photos as stock photography; selling or allowing use of the photos by a third party such as an advertiser.
- Any illegal assignment of photographer's work, such as allowing third party use of a photograph online or in print without attribution.
- Any use deemed defamatory or outside the scope of this contract, at the discretion of the photographer.
- Any significantly retouched or further edits of photographs that materially alters the composition of the photograph, such as by applying filters, changing the colors or other means of degradation.
Again, language like this is much more specific and leaves little room for misunderstanding or abuse of your intellectual property!
If you're doing sponsored posts for brands there will often be an exclusivity clause. This prevents you from working with a competing brand within a certain amount of time. The standard is usually between 1-3 months after the relationship ends. So be on the lookout for brands that want a much longer period of exclusivity.
Why is this important? Because exclusivity means you could be losing out on other income! For example, I'm in an exclusive partnership with Florida Crystals Sugar (they are a fantastic client) and I recently had a competing sugar brand approach me about working together. I had to turn down their offer because it would be a breach of my contract with Florida Crystals. But that's okay because they're paying me appropriately (aka a LOT of extra money) for that exclusivity.
Where to Purchase Contract Templates
As I've said, the best option is to meet with a lawyer in your state to create a custom contract template. But unfortunately that is also the most expensive option. Contract templates are a more affordable option but you do have to do all the customizations yourself.
I recently hired Liss Legal to help me review my contract template and she is awesome!
I have not purchased all of these contracts so I can't speak to any of them specifically. But I've heard pretty good things about all of them! These contract templates have varying price points but I will warn you that you get what you pay for.
If you decide to purchase a template, make sure it's for commercial photography! If you haven't already, you'll want to read my post about copyright and licensing as it goes hand and hand with contracts!
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