Contracts for Portraits?

[farquar]

So - your client enters you're photograph into the "$1m photography competition" as the copyright owner and wins top prize... Do you care at this stage?

Find me the competition where the submission criteria is "you must own the copyright but anyone else can be the creator of the image" and I'll go you halves in the $Mil.

[ricktas]

Contracts are good whenever $ is involved. The contract can state the copyright stays with the tog, which is a good idea for many reasons. When no $ is involved, it usually means friends and it's just too much bother. Things can only go bad.

"In this case your client owns the copyright, unless otherwise agreed."

NUP

Copyright cannot STAY with the tog. Copyright belongs to the client under the Act, in relation to this threat topic. You cannot have in your contract that copyright STAYS with the photographer, when it was not with the photographer to begin with.

Contacts need to be carefully worded. A good(?) lawyer will argue the use of the word STAYS (or similar) in a contract, if you end up in court, and they could deem the photographer's contract invalid simple by the use of that one single 4 letter word. Words like stay/retains/remains with, etc should not be used on a domestic portraiture contract in relation to copyright being given to the photographer, from the client.

[ricktas]

I see. That make sense. I never thought of that since the photog already has the rights to use the images however to promote their own business. I guess many ppl have the idea that the pics belong to them and you can't use them in any way w/o their consent even if they didn't pay for them.

No they don't! Not unless that is also written into the contract. You cannot use a person's (client's) likeness (the photo of them) for commercial gain, without their permission. Use to promote a business is classed as commercial gain.

[ricktas]

Farquar. I would be interested to know your payment options when no contract is negotiated between you and the client(s). Do you have full payment, up front? Payment before any photos are provided to the client?

How do you deal with non-payers? When you cannot really lodge them with a debt collector when there is no contractual agreement regarding the terms of the transaction?

I wonder if anyone has even found themselves in court, where the client has not paid, but as the client owns copyright, they are in court to demand the photographer hand over their photos. Would be also interesting to see how a magistrate would deal with this situation. Not Australian, but Judge Judy would have fun with that one, if she was in Aus..hehe

[reaction]

Contacts need to be carefully worded. A good(?) lawyer will argue the use of the word STAYS (or similar) in a contract, if you end up in court, and they could deem the photographer's contract invalid simple by the use of that one single 4 letter word. Words like stay/retains/remains with, etc should not be used on a domestic portraiture contract in relation to copyright being given to the photographer, from the client.

Wow that's scary. As the act above, some cases the copyright was with the client, some was with the photographer. If you say 'given to the photographer' in the case where it was already with the photographer it wouldn't make sense. That means there's probably no wording that would correctly deal with both cases?

Would "The photographer owns the copyright to all photos" cover these cases? It sounds like it's missing something.

[ricktas]

Wow that's scary. As the act above, some cases the copyright was with the client, some was with the photographer. If you say 'given to the photographer' in the case where it was already with the photographer it wouldn't make sense. That means there's probably no wording that would correctly deal with both cases?

Yep. Whilst the chances of ending up fronting a court are minimal. I certainly would not want to be on the receiving end of a lawyer who argued the case for 'stays with/remains with/retains' copyright being incorrect and thus arguing for the contract to be made null and void. And you can bet one of them would if it meant winning for their client.

[Black Dog]

A lot of contract aren't legal but do help avoid legal battles. For example a lot of the indemnity waivers you sign at sporting clubs, or the big sign saying no liability at commercial parking places are a bluff. They are still legally liable. People assume they have given away their rights so don't persue action. Can be good for business.

An extreame example of this would be you are sick and sign a form saying your Dr can terminate your life……..That release won't hold up in court and the Dr still get a murder charge. I think it comes down to the fact that any contract can not absolve you from the laws governing the action.


On a side note I always add a copyright notice to my metadata so it stays with any digital copies. This way if it ends up in a publication the publication should know better and I do have better legal case. Of course there are ways to strip metadata, but it doesn't cost anything to add it and LR will even do it automatically if you set it up.