This article is for commercial photographers, although the information in it also applies to all kinds of freelance creatives as well.
Generally-speaking, the bigger the company you are shooting for, the more likely you are to receive a contract from their legal department that is a) a rights-grab (demanding you turn over your legal rights to the images [e.g. your copyrights]), b) tries to make you into a glorified underpaid employee, or even c) goes against the things you and the creative team already agreed upon.
Despite what you may have heard or read from people who are not Intellectual Property attorneys, transferring your copyright is not required, common, or in your best interests (at all).
Although it can be quite jarring to receive a contract like this, typically it’s just a CYA agreement that the company’s legal department sends out to all vendors, no matter who they are.
Don’t take it personally, because a) the creative team typically has nothing to do with it, and b) it’s not about you.
Here’s the great news: no, you don’t have to sign that contract.
There are a few things you can do if you are presented with a contract that you do not want to sign.
- Read the contract carefully and ask questions. Do not sign anything that you do not understand. If there are any clauses that you are not comfortable with, ask the other party to explain them to you.
- Negotiate the terms of the contract. If there are certain terms that you are not willing to agree to, try to negotiate them with the other party. You may be able to come to an agreement that is acceptable to both of you. You have total freedom to redline (cross out) any and all terms you don’t agree to. Redline all terms you disagree with, and send it back to your client and state ‘these are the terms I am willing to agree to’, and wait for their reply.
- Consult with your attorney to get help with verbiage. Sometimes all it takes is changes to a few words and you are golden.
- Refuse to sign the contract. If you are not able to negotiate the terms of the contract to your satisfaction, you have the right to refuse to sign it. The other party may not be happy with your decision, but they cannot force you to sign something that you do not want to sign.
If you do decide to refuse to sign the contract, be sure to do so in writing. This will create a paper trail that you can use in case there are any future problems. If you are still unsure about what to do, you may want to get on the phone with your attorney and discuss next steps. An attorney can review the contract in greater detail and advise you on your legal options.
Here are some additional tips for getting help with a contract you don’t want to sign:
- Do your research. Before you sign any contract, it’s important to do your research and understand what you’re agreeing to. This includes understanding the terms of the contract, as well as the laws that apply to it.
- Get help from a lawyer. If you’re not sure about anything, it’s always a good idea to get help from a lawyer. A lawyer can review the contract and explain it to you in plain English. They can also advise you on your legal rights and options.
- Don’t be afraid to negotiate. If there are terms in the contract that you don’t like, don’t be afraid to negotiate with the other party. You may be able to reach an agreement that works for both of you.
- Be prepared to walk away. If you’re not comfortable with the terms of the contract, don’t be afraid to walk away. There are plenty of other opportunities out there, so don’t feel pressured to sign something that you don’t want to.
Where to get legal help:
- An Intellectual Property attorney. These are attorneys who are experts in the complex laws surrounding intellectual property, which includes your images. Ask friends and family for a referral, or do a Google search for one near you.
- ASMP. If you are a member, you have access to their legal documents, and can get legal help.
- A local small business attorney. Ask friends and colleagues for referrals.
- Leslie Burns, photo attorney. Leslie specializes in the commercial photography arena, and can help you create and review contracts.
Where NOT to get legal help:
- Facebook groups. Including ones organized and managed by attorneys. Unless that attorney is consulting you personally, it isn’t wise to get legal assistance from a tribe of strangers online. (If it’s an intellectual property attorney group the members may me more knowledgable about laws. Otherwise- best to avoid or collect anecdotal evidence from only.)
- Friends. Unless the friend is an attorney providing pro-bono services, they aren’t the best person to consult on legal matters.
- Colleagues. Unless the colleague has been in your exact position before with the same client, they won’t be able to provide solid advice on what to do. They also won’t be able to advise you on the verbiage you need in the contract, which matters a lot with regards to legal agreements. You can of course use their input in conjunction with input from an attorney, but it should be weighed for what it is- advice that is not coming from a legal professional.
- The Internet. You’ll spend more time scouring articles and blog posts looking for specific answers than it will take you to reach out to an attorney, schedule a quick call and send them an email. Time is money when you are a small business owner, and it pays to save yourself hours of time by just doing it right to begin with and contracting an attorney on an hourly basis. It may not be as expensive as you think it will be, especially if it’s just a few terms in the agreement you disagree with.
So you see, the next time you receive an un-signable agreement, you have options. Never let your client take your power away from you. It’s up to YOU as to whether or not you sign their agreement!