What is the agreement?
Things said and done:
Consider carefully what the agreement was before the shoot. Even though it may not be in writing there would have been some discussion regarding the use of the photographs. This discussion may have been in very general terms and you need to recall what was said in relation to the three main constituents of a licence (media, duration and territory). Think about what the client said when you were briefed. Was the title of the publication mentioned? Or a particular feature or the day/month of publication? In the absence of a written agreement the things said and done by both parties will form the basis of the contract.
Previous Course of Dealings:
An important consideration is whether you have worked for the client before. If you have a previous course of dealings which were “regular and consistent” then certain terms will be incorporated into the contract by virtue of what went before. This is a principle recognised by the courts. So if, for example, you have previously given a licence for some media, but not given copyright, then it is assumed that (in the absence of any communication to the contrary) you are doing this job on basically the same terms.
A previous course of dealings can work against you if you have previously given all rights. If you wish to override any implied terms from a previous course of dealings then you must make it clear before the shoot.
When was the paperwork given to you?
Before the Shoot:
If you are given a written purchase order or contract before the shoot and you fail to read it, or object to any terms in it, then you are deemed to have accepted the terms by virtue of the fact you do the work.
On the shoot:
If your client turns up to the shoot with a document and hands it to you before or during the shoot ask them to give it to you later telling him/her that you are busy and likely to lose it. If s/he insists that you take it then you must either;
- take the time to sit down and read it and reject any terms you did not agree to (this is impractical and improbable); or
- tell your client that you are unable to accept any terms in the document until you have read it. This puts him/her on notice that you have not agreed to it. Once you have read the contract you must object to any terms that you did not agree to.
After the shoot:
If a written contract is given to you after the shoot then the rule of thumb is that it is post-contractual and does not form part of the agreement. However, this really does depend on what was said and done in the run up to the shoot itself because the written contract may just be a confirmation of that. In order to find out you must read it thoroughly and you must expressly reject any terms you did not agree to.
Sometimes you will be asked to sign a document, but not always. Regardless of whether you are asked for a signature you must inform your client as soon as possible if you disagree to any terms. You cannot rely on non-signature as conclusive evidence that you rejected the contract. If you do not raise your objections your client might argue that your silence was an indication that you did not object and had impliedly accepted the terms. As disputes often occur months or years later, this argument can be very persuasive. If you go to court it is the judge who decides, and your lack of communication might go against you as the courts prefer open dialogue.
Assignment of Copyright:
According to the Copyright, Designs and Patents Act 1988 (CDPA); “an assignment of copyright is not effective unless it is in writing signed by or on behalf of the assignor.”
However, even if you have not assigned copyright, in certain circumstances your client might be entitled to the ‘beneficial’ ownership of the copyright (the right to use it) while you retain the ‘legal’ ownership (without the right to use it). In other words the courts may decide that you have effectively assigned copyright and no signature is required. This is why it is important to expressly reject unacceptable terms.
“My client will not pay me until I have signed the paperwork”
A post-contractual document which varies from the original understanding does not form part of the contract and the client cannot withhold payment just because you have not signed it.
Send the document back, unsigned, and let them know what terms you object to so that there is no doubt that you do not accept them. When you do that, reiterate what was agreed before the shoot. For example: “I was asked to shoot the subject for this particular purpose (for this particular period of time and in this particular geographical area). There was no mention of a copyright assignment before the shoot and I would not have accepted the commission on that basis. The terms of the contract are what we agreed before the shoot. Your written document was given to me after the shoot; I have not signed it and it does not form part of our contract.”
Inform them that they have no valid reason for withholding payment and remind them when payment is due.
If they do not pay up and you decide to take legal action then you must be clear about what your argument is and be able to present it clearly and calmly. If there is any suggestion of uncertainty then your client may take advantage of that and the decision could go against you.
“I put my terms and conditions on my invoice”:
The principle of post-contractual terms can work against you if your client first encounters your terms and conditions on your invoice. They are strictly speaking post-contractual and will not apply. Get into the habit of putting your terms and conditions on all your paperwork (not just quotes and invoices) so that you are communicating them to your clients. There are free templates available from photographic organisations such as the Association of Photographers which you can print onto the back of your headed paper.
The importance of bluff:
Do not assume that your client knows more about copyright and contract law than you do; better still, make sure that they don’t. If you construct a good, reasoned argument your client might accept it and back down. Similarly, they might come on heavy with you to intimidate you into believing they are right and that it would be futile to resist. If you are unsure of your position use your support network (union, association, forum, colleagues etc) to find out more. The more you know the better equipped you are to speak with authority.
Charging interest for late payment:
When your client is acting in the course of business you have a statutory right to charge interest on late payment. The authority for this is The Late Payment of Commercial Debts (Interest) Act 1998 (as amended). More information on how to charge interest can be found on the HYPERLINK “http://www.payontime.co.uk” Better Payment Practice Campaign website: www.payontime.co.uk
Do you want to work with the client again?
Even if you never want to work with a client again don’t lose your cool and do not use emotive words to point out their shortcomings or your strengths. Your real aim is to get your client to see your point of view. Stick to the valid points in question and remain courteous.
Look at it from your client’s perspective:
This is not a recommendation to agree but a useful technique to predict the likely argument your client might put forward. This will allow you to counter it immediately and effectively and may persuade him/her to accept your view or reach an acceptable compromise.
These notes are for general guidance only and not intended to replace legal advice. Your position will depend on the actual circumstances of your situation and you should take advice from your solicitor, union or association. Whilst every endeavour has been made to ensure the content of this article is accurate, the author accepts no liability for any loss or damage arising from any errors or omissions herein.