Best Business Practices for Photographers [110]
Photographer consents to the reuse of assignment images in future issues without additional compensation.
Photographer shall indemnify and hold harmless publication in the event of a claim arising out of the assignment or use/misuse of images by publication or a third party.
Photographer acknowledges that publication may grant reprint rights to the story to interested third parties, and agrees that in such an instance, where the story is reprinted, no additional payments are made for such reprints to photographer.
Photographer agrees that this assignment is speculative in nature, and publication shall not be obligated to pay anything should publication opt not to use any images.
Photographer shall deliver all original receipts, for which actual expenses shall be reimbursed without any markup, and photocopied receipts or expense items for which no receipt is provided shall be rejected.
When they include such terms in their contract, I know and anticipate that my contract might be met with some objections, and I prepare for the conversation and the potential that I might not be chosen to do the assignment. In many cases, our contract comes back signed, without changes, and we complete the assignment even when their proposal included those objectionable terms (and many others I've seen).
In some instances, there are negotiated points in the contract. Some of their responses/objections are:
We can't pay an interest charge if there is a late payment.
We can't pay within 21 days; we pay within 30 (or 45) days.
We pay on publication.
We credit photos in the back of the magazine, not adjacent to the photo.
We can't pay $x for post-production; our maximum is $y.
We can't have a second assistant on any shoots.
We have an arrangement with a preferred shipper; I need the CD shipped with our account number and shipper.
These are all negotiable portions of the contract. Some are stylistic (photo credit location), some are accounting policies (pays in 45 days, not 21), and some begin to interfere with the creative options on an assignment where the shoot is outdoors with large soft boxes and equipment (no second assistant). However, in the end, I am amenable to a number of solutions that would resolve their concerns while still offering terms with which I am comfortable.
If your contract has 21 terms and theirs comes to you with 10, and there are only 2 or 3 of their 10 that are substantially similar to yours, you'll end up striking 7 or 8 of their terms and then adding in 18 of your own. In such cases, negotiation back and forth can become more of a challenge than it should be. It'll be an uphill battle from the beginning. However, if there are only a few changes that need to be made to yours to make it amenable to the client, then it will be easier to work past those issues.
There are some organizations that have decided that it's their right to issue iron-clad, nonnegotiable contracts, purportedly that every single photographer who's ever worked for them (or ever will) must sign, or there will be no work from them. Sometimes, the contract comes after a last-minute assignment has been completed. To address the nonnegotiable aspect: In a worst-case scenario, a photographer has a single publication as their only client, and a new contract foisted upon him or her without any warning, consideration, or consultation places the photographer in a precarious position that will always have the photographer get the short end of the deal. A contract that has no negotiable terms is termed a contract of adhesion. Although this type of contract might be suitable for insurance companies—in the end, courts often rule against the insurance company when there is ambiguity in the terms or language—it is neither suitable nor fair for any offering of a photographic nature.
Law.com defines "adhesion contract" as follows:
n. (contract of adhesion): A contract (often a signed form) so imbalanced in favor of one party over the other that there is a strong implication it was not freely bargained. Example: a rich landlord dealing