When creating a cost estimate for a photo shoot, the terms and conditions you include are just as important as your fees and expenses. In fact, if you don’t have any terms or conditions with a signature line, you aren’t giving the client an opportunity to formally enter into an agreement with you.
While the numbers in your estimate reflect a budgetary commitment you are hoping for a client to approve, the terms and conditions lay out your expectations on all other aspects of a project. This includes payment terms, cancellation policies, copyright, and any additional commitments you are seeking approval on.
Here is an example of what a typical proposal looks like (click to enlarge):
We’ve developed and updated the terms and conditions that are included in the sample estimate over the years. Here is a breakdown of the clauses, with layman’s terms and and an explanation below each one:
This agreement between the above referenced photographer (herein “Creator”) and the undersigned client (herein “Client”) or agency representative (herein “Agency”) governs the project described in the accompanying Estimate, and along with these Terms & Conditions, constitutes the entire agreement between the parties. The Fees and Expenses are based on the Job Description as presented by the Client (or Agency) and summarized above.
The Client (or Agency) is responsible for the presence of an authorized representative at the shoot to approve the Creator’s interpretation of the project. If a Client (or Agency) representative is not present, the Creator’s interpretation shall be deemed acceptable. Any changes, whether made orally or in writing, may result in additional charges. The expenses are estimated in good faith, and a 10% variance applies to project total. Sales tax is not included in the Estimate. Any applicable sales tax will be added at time of invoice.
Client (and/or Agency) hereby indemnifies and holds Creator harmless against any and all liabilities, claims, and expenses, including reasonable attorney’s fees, arising from Client’s (or Agency’s) use of the Work.
Estimates are valid for 15 days.
Layman’s terms and notes: This is our agreement. The written description of the project will minimize the chances of a dispute. The fees and expenses are based on the photographer’s understanding of the project. The Client will be at the shoot to approve the photos as the shoot unfolds. That’s important, because photography is a creative medium, and subject to varying interpretations. You don’t want a client to be able to arbitrarily withhold payment because of this. If the scope of the project changes, it might cost more money, even though we say the client’s “oral” changes may affect the cost. It’s a good policy to have a client sign a change order in these cases.
Additionally, our project proposals come in the form of either an estimate or a firm bid. With an estimate, the client assumes the risk when the actual costs are different from the estimated costs. That is specifically reflected in our note regarding a 10% variance.
Sometimes, however, we present a firm bid, where the photographer will charge the agreed-upon price whether the actual costs are greater or lesser than the estimated costs. For a firm bid, I’d typically remove the note about a 10% variance. It’s important not to get yourself into a situation where the cost overages are your responsibility, and the cost savings are the client’s.
Sales tax will be added if needed.
You will protect me financially if you use the photos in a way that gets you in trouble. Indemnity is important. It’s reasonable for both parties to cover the other when one of them does something to get the other party sued. For example, if the photographer’s light stand falls over and hurts someone, it’s reasonable that the photographer’s insurance will cover the client. Likewise, if the client misrepresents the people in your photograph and you get sued, it’s reasonable for the client to cover your costs of defending against claims arising out of that.
Image/s, Footage, Video, or Photograph/s (herein “Work”) are any copyrightable materials created as a part of the project as agreed to by Creator and Client (or Agency). “Client” is the licensee of the Work as detailed in the Job Description above. “Editorial” use is when the Client publishes the Work in their own editorial publication, for the purpose of educating and/or conveying news, information or fair comment opinion, which is available for sale to the general public and which does not seek or accept sponsorship to, or in itself, promote a specific product, person, service or company. “Publicity” use is when the Client submits the Work to an outside editorial publication (whether print or electronic) for Editorial use only, and the Client (or Agency) is not paying for that use or placement. “Advertising” use is when the Client (or Agency) is paying for the placement of the Work on or in whatever media it appears. “Collateral” use is when the Work appears in or on a platform that the Client (or Agency) wholly controls and produces, such as a company web site, annual report, brochure, or social media profile, and is intended to promote a commercial product, service, personality or brand. “Public Display” use is when the Work is shown or displayed in a Client maintained space, open to public viewing (i.e. corporate office, trade show, public event), and the Client (or Agency) is not purchasing Advertising space to allow for the placement of the Work within the media or location it appears. “Private Display” use is when the Work is shown or displayed in a non-commercial, private space, closed to public viewing, and the use of which does not promote a commercial product, service, personality or brand. “Point of Purchase” or “Point of Sale” (herein “POS”) use is when the Work is included in a non-paid placement Print or Electronic indoor display for the purpose of promoting a product, service or corporation, within a third party retail space or Client location. “Packaging” use is when the Work is printed or displayed on the packaging for a commercial or retail product. “Unlimited” use includes all Editorial, Publicity, Advertising, Collateral, Public Display, and Packaging uses of the Work, defined herein. “Media” is the medium in which the Work is reproduced, inserted, displayed or placed by the Client (or Agency). “Consumer” use is when the Media in which the Work appears is directed toward and/or available to the general public. “Trade” use is when the Media in which the Work appears is directed toward specific industries, professions, or special interest groups for commercial, promotional or Advertising purposes, and is not available to the general public. “Print” is all printed mediums excluding Packaging, OOH and POS. “Web” is all mediums accessible exclusively via an internet browser or internet-based software. “Electronic” is all digital and Web mediums excluding Broadcast, TV, Packaging, OOH and POS. “Out of Home” (herein OOH) is all paid placement displays viewable to the general public from any public or private space. “Broadcast” is all network and subscription television and radio outlets.
Layman’s terms and notes: I use specific terminology in this proposal in relation to usage/licensing. This is because there are definitions of these words. These definitions are important. If you are in the business of charging money for the use of your pictures, you have to be able to describe that use with specific words. There are so many types of usage that you might negotiate. Creating words to describe all the major categories of usage gives you the ability to easily segment the licensing. This way, your client doesn’t have to pay for something they don’t need. You can also retain rights to license them in the future.
A 50% Advance retainer is required to initiate production. Client (or Agency, if project is commissioned and agreed to by Agency), shall make payment within 30 days of invoice. Late payments will be billed a $20.00/month handling fee and 1.5%/month interest. Applicable sales tax is not included in the Estimate but will be applied to invoice.
Layman’s terms and notes: Half of the bottom line will be paid upfront. The remainder will be paid within 30 days from the invoice date. If you don’t pay on time, I’ll add interest. Our use of the word “retainer” instead of the word “deposit” is purposeful. From a legal perspective, “deposit” tends to be refundable and “retainers” aren’t. A deposit is an advance payment for work that will happen in the future. If the work doesn’t happen, the deposit may need to be returned. A retainer is payment to secure the future availability, or to pay for pre-production work leading up to a shoot. It is generally not refundable.
This estimate doesn’t include sales tax, but sales tax will be on the invoice if applicable. There are a couple of good reasons to leave sales tax off of your estimate. In most cases, you won’t know how much sales tax will apply in a situation when compiling an estimate. Secondly, it makes you look more expensive than other photographers who leave it off.
All Work created by the Creator and the associated copyright is the sole and exclusive property of the Creator. Grant of any reproduction rights to the Client is conditioned upon receipt of payment in full, from Client (or Agency). All rights not expressly granted in the Job Description above shall be reserved by the Creator. Modification of Work and/or incorporation of Work in any layout or concept shall not constitute a joint work or derivative work. All Licensing Option/s quoted above are valid for 15 days from Work delivery date. If Client (or Agency) wishes to make any additional uses of the Work not detailed in Project Description or Licensing Option/s above, or after the 15 day Licensing Option/s quote expiration, Client (or Agency) shall obtain permission from the Creator and negotiate an additional fee for that use, which may be greater than any Licensing Option/s originally quoted.
Layman’s terms and notes: The photographer owns the copyright to the images. In exchange for payment, the photographer will convey certain rights to the client. If you’d like to use the images in ways we’ve not already agreed upon, you will have to pay more.
For example, if the images are used with other text/logos, that is not considered a new piece of work. You cannot separately copyright that, because it still has my image in it. And if I’ve stated any options in my estimate to expand/extend the licensing, those options are good for 15 days from when I send you the files. The conveying of rights is important for photographers to understand. A client can only legally use your images in accordance with the licensing agreement.
In the event of a cancellation or postponement of a shoot by the Client (or Agency) at any time after shoot confirmation/award, Client (or Agency) shall pay all expenses incurred by the Creator up to the time of cancellation, plus a fee equal to 50% of all Creative and Licensing fees quoted above. If a shoot is canceled within one week of confirmed shoot day, Client or Agency shall pay up to 100% of Creative fees, Licensing fees and Expenses quoted above. If a shoot is postponed due to weather, Client will be responsible for all Expenses incurred on each Weather Day, plus a Creator fee to be agreed upon.
Layman’s terms and notes: If you cancel the project after signing this estimate, and it’s more than one week out from the shoot date, you will pay me 50% of the fees detailed in the estimate. Plus any actual out of pocket expenses that I’ve incurred. If you cancel the project after signing this estimate and it’s less than one week out from the shoot date, you will pay me up to 100% of the fees detailed in the estimate. And again, plus any actual out of pocket expenses that I’ve incurred.
If the shoot is postponed due to weather, you will pay me any expenses already incurred. Plus another fee that we will agree upon at that time. This is to protect you from clients arbitrarily cancelling a shoot, which could cost you an opportunity for other work. However, any time a photo shoot gets postponed or cancelled, there are going to be extenuating circumstances. These may require a more customized solution, per the circumstance. If you want to work with that client again, work together with them to come to a fair resolution.
Neither Creator, Client or Agency shall be liable for failure of either party’s obligations caused by any circumstances beyond reasonable control, including but not limited to acts of God, epidemics, pandemics, floods, riots, fires, civil unrest, acts of war or terrorism, or failure of energy sources.
Layman’s terms and notes: If anything happens that is completely out of our control that impacts my ability to do the work we are agreeing upon, I won’t be held liable.
For example, if a production is to take place at a residential property, but the house burns down. The photographer should not be in breach of the contract. That “Act of God” was completely out of his/her control. Therefore, the fees/expenses to remedy the situation should not be the responsibility of the photographer.
Work will be delivered in a timely fashion, within a mutually agreed upon schedule. Any additional retouching requested by the Client (or Agency) beyond the scope of the Estimate above will be quoted on a case-by-case basis.
Layman’s terms and notes: We’ll decide on the exact schedule for file delivery later. If any additional retouching is needed outside of what we have agreed upon, that work will be quoted and agreed upon separately.
Agreed and Accepted:____________________________________
Printed Name and Title:_____________________________________
Layman’s terms and notes: Please sign here to approve the fees, expenses and terms.
I should note that oftentimes advertising agencies and commercial clients won’t sign an estimate with these terms/conditions. Instead, they may issue a purchase order with their own terms and conditions drafted by their legal team. There is nothing wrong with this. Just read their terms and conditions carefully, and ensure that they are otherwise agreeable to you.
Also, if there are any terms you want to amend, many clients are open to having you redline the agreement. They will then take those changes to their legal team. Hopefully the changes are then integrated into a new contact, or the revisions you made are otherwise approved.
Legal Templates: Free Licensing Agreement