Everything You Need To Know About Contracts and Law in Fashion Photography (UK)
I know just how stressful the legal side of running a fashion photography business can be. We tend to have little to no understanding of what our rights are, and no real clue of where to turn to to get advice. I’ve received hundreds of messages from so many of you with questions about contracts, copyright, and licensing. Obviously, I’m not a lawyer, so I can’t help you much myself… but I still wanted to help you however I can.
So, I got in touch with the absolutely amazing IP team at Kemp Little, and they’ve gone above and beyond by creating this incredibly in depth FAQ article that will answer every question you could possibly have! Of course, if you have any more questions, please feel free to get in touch with Kemp Little directly, as they’re going to be the best people to ask.
Now, I need to add a disclaimer: I am not a lawyer and these FAQ do not constitute any form of legal advice. The content here should not be relied upon or treated as a substitute for specific legal advice relevant to your particular circumstances and you should not take any action or refrain from taking action based on this content.
I should also add that this article primarily applies to UK law, because that’s where I’m based. If you’re not based in the UK, you may want to seek legal advice from a firm in your home country.
Right, with that said, here’s everything you need to know about contracts and law in fashion photography!
Q How do I protect my work/photos?
A Your work and photographs can be protected in more than one way. There are certain intellectual property rights (IPRs) which will protect your work, and you can also seek to protect your work contractually. There are practical and legal steps you can take to ensure that your photographs are not misused or used without your permission. More detail is set out below
COPYRIGHT AND FASHION PHOTOGRAPHY
Q What IPRs are relevant to photographs?
A The most relevant right when it comes to your photographs is copyright. Copyright arises in and attaches to any original artistic works, including photographs, and will be owned by the photographer – unless the photographer is employed (in which case the employer will own the copyright) or has agreed to assign the copyright to someone else.
As the photographer who created a photograph you also have moral rights, protecting your reputation. Moral rights entitle you to be named as the creator/photographer of a photograph and to object to any derogatory treatment of it.
Q What does copyright protect and how does it work?
A Copyright gives the owner the exclusive right to use, publish and copy the relevant work or photograph. In other words, the owner of the copyright can prevent anyone else from using or copying the copyright work without their permission.
So, if you own the copyright in a photograph and someone else, without your permission, uses it (e.g. re-prints or copies it, shares it online, or uses it as a base but makes a few changes before re-using it) then you can rely on copyright in order to try to remove any copies and might even get financial compensation.
However, copyright does not prevent someone copying or misusing your photograph in the first place: you have to take action, relying on your IPRs, if you find out someone has done so, and it is a problem for you.
Q How do I get copyright in my photos/ How do I know if my photograph is protected by copyright?
A You don’t need to do anything. Copyright arises automatically and there’s no need for you to register it or apply for anything in order to benefit from it, if your work is original (i.e. not copied from someone else) and your own work (i.e. not done for your employer and/or not done by someone on your behalf).
Copyright last for a long time: 70 years after the death of the owner of the copyright.
Q Should I use copyright notices?
A Including a copyright notice (e.g. Copyright © [NAME] 2019) is not necessary for copyright to arise and protect a photograph. However, such notices can be a useful deterrent. They act as a message to the public that a work is not only protected, but the copyright owner is willing to assert and enforce rights in the photograph.
Q Can copyright protection be lost?
A Yes. Copyright protection might be lost over time (it lasts the life of the owner plus 70 years) or the rights that come with copyright might be waived (i.e. you agree not to enforce your rights), licensed or given away/assigned by contract. There’s also the chance that if you allow someone else to use your copyright work for a long time and don’t object, you might lose your right to stop them.
CONTRACTS
Q Why do I need a contract?
A You do not necessarily need a written contract in order to undertake work for a client or in order to allow someone else to use your photographs. Contracts can be formed orally, or through conduct. However, in those situations, it can be very unclear what has been agreed and it is likely you won’t benefit from the maximum protections available.
Setting out what the parties expect, and what they can and cannot do, and must and must not do, means that no one will be surprised, and everyone knows what they are getting. It also allows you to include/agree additional things that would not be provided for if you did not write them down.
In the long run, it will help to avoid disputes with clients if you have a clear contract, and if there is a dispute, then it puts you in the best possible position.
Q What should go in my contract?
A What goes in your contract is up to you. In theory, contracting parties can agree anything they like. However, the main commercial terms you should seek to cover might include:
Subject matter (what are you agreeing to produce? – in what format/style?)
Timing (when does the job have to be completed?)
Delivery (how will you deliver the work?)
Payment (how much? when? where? any tax considerations? is it a royalty arrangement or one off payment?)
Intellectual property ownership and licence (the client will need to be granted a licence at the very least, but you might wish to insist on ownership – see below re licensing)
Usage rights (are there limits on how, where and for how long your work can be used by the client?)
Attribution/moral rights (do you want to be credited and how?)
Breach (what happens if the client doesn’t pay you or misuses the photographs? what if the shoot doesn’t take place and it’s not your fault?)
Limitation of liability (you should try and limit your liability to the client as much as possible under law)
Assignment and sub-contracting (can the client pass on its rights to use the photographs to anyone else?)
There are many other terms you might want to agree – including, for example, what happens if there is a dispute (what law applies? what if a third party claims there is a problem with your photographs?); what needs to be provided at the shoot (including, for example, any safety requirements you have); and whether the contract supersedes and replaces any other conversations and terms (an entire agreement clause).
Q Is there a difference between contracts with individuals and commercial clients?
A In theory, there need not be any difference between the contracts you enter into with different types of client. However, practically speaking, it is more likely that commercial clients will be more used to signing up to more complex and detailed contracts, whereas individual clients may be scared off by long, complicated legal documentation.
What goes into your contract depends more upon what the job is, the risk you are taking, what the photographs are for and where they will be used, the relationship you already have with the client, and the investment of your time and effort into, as well, of course, as the value to the client of, the work.
Q What does my contract have to look like?
A There is no standard form for a contract. What matters is what it says and that it can be shown that the parties agreed to what it says. Ideally, therefore, you would have a written document, with all the terms that have been agreed in one place, which is then signed and dated by or on behalf of both parties.
It is also possible to have standard terms and conditions (Ts and Cs) form the basis of your contract. If Ts and Cs are issued ahead of work being done, these are likely to be deemed to have been accepted and agreed. However, this is no substitute for getting a copy of the Ts and Cs signed and returned to you, so you can prove the terms were accepted and agreed.
If both parties issue their own independent sets of Ts and Cs, it can be a legal battle as to whose terms ‘win’ (known as the ‘battle of the forms’). Rather than assume that your Ts and Cs apply, it is better to be sure, up front. It may end up being necessary to have a separate, negotiated contract, if both parties have conflicting standard Ts and Cs.
In some cases, it may not be possible or practical to enter into a formal contract document of any kind. If that happens, you can always write down the key terms and sign at the bottom of that. Even an email chain could in theory serve as a contract if it is clear what terms are being agreed and that both sides have agreed and intend to be legally bound by the terms set out in the email chain.
Having said this, the further away you get from a formal contract, the more complicated and difficult it is likely to be to prove what the parties agreed or that they even agreed at all. For example, if you send a price quote to a client and they respond saying ‘agreed’, you can of course argue – if you later have to – that the parties had contractually agreed a price and the client has to pay you that amount. But what is not likely to be clear from that email exchange is: (i) what the price was actually for (the client’s expectations for the output), (ii) when the price has to be paid – if at all, if the client doesn’t like the work, and (iii) who owns what and whether payment has anything to do with that, etc.
Q Do I need to use a lawyer to draft a contract?
A No. A contract can be formed in many ways and need not be a formal standalone document, and the parties can in theory agree whatever they want. You do not therefore need to use a lawyer.
However, given that intellectual property law and copyright licensing is complicated, it is recommended that you do seek legal advice and get help with your contract or Ts and Cs, and/or any changes or amendments that a client wants to introduce that seem materially to impact your usual terms. This will ensure that you are giving yourself the best legal starting point, and also not including terms that will end up being unenforceable.
Q When should I send a contract to a client?
A Ideally you should agree terms with a client up front and before work has started i.e. before a shoot. This can also help focus minds on the nature and requirements of a project, thus minimising the possibility of a falling out if expectations do not in fact match.
However, it is also possible to agree terms and get a contract signed later that applies retrospectively – it just may be that you will have lost some of your bargaining power at that point, if the job has already taken place.
Q How do I get my contract signed?
A Ideally, if there is nothing controversial in your contract, the client will have no issue printing and signing it and returning it to you; or doing so in person.
If the client is a commercial entity, it is best to ensure that the person signing has authority to do so on behalf of and can bind that company or business.
There is no issue with the parties signing different copies (i.e. there need not be one version with everyone’s signature on) provided that the contract provides that it can be executed in counterparts. You should ensure that you have a copy (even if it is just a photo/scan) of the client’s signed version and not just your own.
If it is not possible to hand-sign, you should nonetheless ask if it is possible to e-sign (via a laptop, mobile or other device). Even typing out a name and sending it back to you might be enough. Worst case scenario, an email agreeing to the terms from the relevant person might give you enough protection.
For most simple contracts it is not necessary to have a signature witnessed.
LICENSING
Q How does licensing work?
A As the owner of the copyright in a photograph, you are entitled to prevent others from using, copying or sharing that photograph without your permission. However, if someone has commissioned and paid you to take that photo, they will expect to be granted that permission – i.e. a licence – in return. In fact, where there is a commissioned piece of work, the law would assume that such a licence was and has been granted.
What is not necessarily in place or agreed is:
who retains ultimate ownership of the photograph(s) (i.e. do you still own the copyright, with the client having no more than a licence?);
how extensive the licence is (i.e. where (in what media/on what platforms, in what countries) and how often and in what way can the client use the photograph(s)? Can the client use without restriction and give to other people to use?);
what amendments or modifications can be made to your photographs;
whether the licence is exclusive (i.e. can you give licences of the same photograph(s) to anyone else? Can you still use the photograph(s) yourself?)
whether additional payment will need to be made (i.e. is there a royalty arrangement?)
what kind of credit/attribution you require.
It is therefore best practice to consider these questions and agree the answers up front with the client, ideally as part of a signed contract or your accepted/agreed standard Ts and Cs.
Q How does licensing differ between differently sized clients?
You may find that the client’s requirements change a lot depending on the project, and their size and bargaining power.
Larger brands might expect a very wide-ranging licence granting them unrestricted permission to use your photographs wherever they like, in whatever country, without any further reference or payment to you. They may even require – as standard – an assignment of the copyright in the works so that they ultimately become the owner(s). In that scenario, you might request or require a licence back to yourself of the IPR in the photograph(s) just so you can still use/display the images as part of your own promotional material, for example.
Other clients might be more willing to pay for a narrower one-off licence (limited by geography, or publication, for example) and come back to you and pay more if they want to use the photograph(s) more widely or in a different way.
DISPUTES
Q Are brands allowed to repost my images that I took for someone else?
A It depends on the terms of your contract (if any) with the client that commissioned the images. It may be that they have the right to sub-license the images and have given the brand in question the right to use the image(s), and/or it may be that you have assigned all rights in the images to the client, in which case you no longer have any rights to stop their use and it would be for the client to take action – if they want to.
As a rule, however, no one can use (including re-posting) copyright works that they do not own or have a licence to use, without the copyright owner’s permission. So, if someone reposts an image of yours on social media without permission, that is a copyright infringement and you can stop them and may even be able to seek some financial compensation for the use that has been made. Having said this, in many cases, photographers and/or clients prefer to allow images to be shared and re-used – that is, in some scenarios, the aim! – provided that appropriate credit is given to the photographer.
Q How do I get a photograph taken down or removed?
A If a copyright work is being misused or has been shared or copied without your permission, you can write to the person or business responsible asserting your copyright rights and requiring them to remove the work in question in order to avoid legal action. It is recommended that any such approach is done with the assistance of a lawyer, as what should be sent is a formal legal letter known as a letter before action or pre-action letter.
Alternatively, or at the same time, you can complain directly to the platform, website or other publisher of the image, again drawing their attention to the copyright infringement that has taken place. Most social media platforms have specific functionality and forms built in to allow you to report such issues. You should always make a record (e.g. via screenshot) of the misuse or unlicensed use before you submit a report so that you have evidence of the infringement.
Q What if a client doesn’t like the photos I take?
A Again, a lot depends on the terms of your contract (if any) with the client that commissioned the images. Ideally, the contract will be clear about what the photos should be like and as such, providing you have fulfilled the agreed brief, payment should follow.
The contract may even provide for an acceptance/approval process whereby, for example, the client has a specific window in which to review and comment on the photographs, and outside of that window, they are deemed to accept them.
If the contract is silent, you may find yourself in a position where the client is unwilling to pay and claims that the photographs are not fit for purpose or similar. Legally, this is a battleground over whether or not you have fulfilled your end of the bargain or the photos are such that you are in breach of contract (including implied terms as to you having skill and undertaking your task with care). Commercially, it is likely to be more of a question of whether there is a reputational or relationship angle which means you can or should reach agreement with the client on a reshoot.
Once again, a huge thank you to Kemp Little for taking the time to put together this FAQ!
Kemp Little’s IP team is rich in technology, retail, as well as luxury fashion expertise. They’ll help you understand how the IP ecosystem works, how to enforce your rights and how IP can be used to drive your business forward.
If you’d like to get help from Kemp Little yourself, then please contact their IP team here.
