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Tuesday, October 27, 2009

Get It In Writing

A lawyer’s secrets to better contracts


Make Sure It’s In Writing
Sometimes, problems arise because simple contracts fail to advise the clients of the photographer’s standard policies. The best policy is to put everything in writing up front. Indeed, many problems can be avoided when each party knows its respective rights and responsibilities.

Odessa, Texas-based photographer Ruben Rodriguez encountered difficulty with a client after he delivered a CD-ROM of images that included a faint watermark in the upper-left corner of the images with his studio’s logo. Rodriguez’s contract didn’t spell out what his copyright policy was or that the images delivered for review on CD-ROM would contain a watermark. According to Rodriguez, this was the first time in 10 years
that he received a complaint about his watermark.

While Rodriguez’s situation might be something of an extreme example, even simple contract issues are often left out of photographers’ contracts. All too often, photographers believe that they can explain their standard policies to clients orally and then enforce those policies. Part of the problem with this approach, however, is that it ignores state law. Most states have what’s called a statute of frauds—a law requiring that certain types of contracts be memorialized by a signed writing. Some states even have laws providing that where parties intend their final agreement to be in writing, any provisions discussed but not included in the agreement won’t be considered part of the agreement and, therefore, unenforceable.

The more prudent approach is to make sure that all of your important policies are in writing and presented to the client together with your contract. This includes policies relating to:
• whether deposits are refundable or nonrefundable, and if refundable, what factors are relevant to whether a refund is given;
• whether and how much the photographer charges for cancellations, no-shows and/or having to reschedule a shoot or assignment;
• the photographer’s policies regarding payment, returned checks, charge-backs, etc.;
• the photographer’s copyright policy, including what the client may and may not do with electronic or physical proofs;
• the photographer’s policy regarding model releases (in a studio context, this might involve the client providing a model release in favor of the photographer; in a commercial context, this might involve whether the client is responsible for obtaining model releases);
• whether the photographer reserves the right to use the images from an assignment or job for other purposes.

Of course, these are just a sampling of the issues to be considered when preparing a contract, and there are many more issues that should be considered than are listed here.

“Brevity Is The Soul Of Wit…”
Of course, it’s possible to go overboard when drafting a contract. The reality is that while you can try to address every possible eventuality, the resulting agreement would likely appear so onerous and overbearing that no client would take the time to read through it, much less sign it. Thus, it becomes important to try to strike a balance between absolute protection and no protection.

When determining what should and shouldn’t be included in a contract, remember that no matter how detailed or complete an agreement is, it can’t address every possible eventuality. Unless you’re clairvoyant, at some point, you’ll encounter problems that weren’t considered or that were considered but omitted because they seemed too remote.

It’s also important to consider the overall impact your contract will have. At some point, we’ve each been presented with one-sided contracts rife with boilerplate in minuscule type. If you think about the emotional response you had to such a contract, it’s likely you won’t want your clients to have the same experience when reviewing your own contract. Avoiding fine print and presenting a contract with even-handed provisions can go a long way toward keeping clients happy.

Another point to consider is the language of the contract itself. A judge once observed that lawyers and courts are frequently accused of confusing issues by resorting “to legal ‘jargon,’ law Latin or Norman French.” In light of this observation, it’s no small surprise that there exists a movement within the law called the “Plain English” movement, which seeks to simplify both legislation and transactions by avoiding archaic and legalistic language. Under the Plain English approach, the ideal contract would be written simply enough that it would not require extensive explanation or interpretation. However, even with everything in writing in plain, simple English, it doesn’t hurt to sit down with a potential client and discuss the terms to ensure that the client shares your understanding of the contract.

 

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