Drafting general terms and conditions for photographers: this is what belongs in them

Drafting general terms and conditions for photographers means clearly defining eight topics — copyright and licensing, portrait rights, the client's right of use, shoot cancellation, delivery, payment, liability, and attribution. Start with copyright (which you retain) and licensing (which you sell), as these are where both revenue and the greatest risk lie for a photographer. You build the rest around these. Below, I walk through the provisions that belong in every set, along with the pitfalls that cost photographers money most often.

The short answer

1. Copyright: stipulate that it remains with you (Art. 1 Copyright Act).
2. License/right of use: define purpose, medium, duration, and scope.
3. Right of portrait: holds the client responsible for obtaining permission from the persons portrayed.
4. Cancellation and delivery: cancellation scale, delivery time and number of images.
5. Payment and liability: payment term, default and a liability ceiling.

Drafting general terms and conditions for photographers: where do you start?

Do not start with a free template for “service providers.” Photography revolves around intellectual property, and it is precisely those provisions that are missing from generic sets. Start with two questions: which right do I retain, and which right do I sell? The answer is almost always: I retain the copyright, I sell a defined license. All other provisions are derivatives thereof.

1. Copyright and license

The core provision. Record:

• The copyright to all photos taken rests with you as the creator and does not transfer upon payment of the assignment fee.
• The customer obtains a right of use (license) with a defined scope: purpose (editorial/commercial), medium (online/print/advertising), duration, and geographical area.
• Everything that has not been expressly granted remains reserved for you.
• If the customer wishes to extend usage, an additional charge or separate agreement applies.

Full transfer of copyright is possible, but requires a deed (Art. 2 Copyright Act). Never do this tacitly and never for the standard price.

2. Portrait rights and attribution

• Right of portrait. Under certain circumstances, persons portrayed may object to publication (Art. 21 Copyright Act). Include a clause stating that the client guarantees the necessary permission from the depicted persons and indemnifies you against any claims regarding this.
• Personal portfolio use. Stipulate that you may display the photos in your portfolio and on your social media, unless otherwise agreed in writing (think of sensitive or embargo assignments).
• Attribution. You are entitled to attribution upon publication (Art. 25 Copyright Act). Stipulate that the client mentions your name or, if not, owes a fee.

3. Customer's right of use further specified

Make the license concrete, so there is no room for explanation:

• Editing: Is the client allowed to crop, adjust colors, or add filters? Default: only minor cropping, no interventions that substantially alter the image.
• Transferability: may the customer transfer the license to a parent company, reseller, or another brand? Default: not without your permission.
• Exclusivity: does the client get exclusive use, or are you allowed to license the same images elsewhere as well? Exclusive use only at an additional cost.
• Unpaid = no use: the license only takes effect after full payment.

4. Cancellation of the shoot

A shoot costs you reserved time. A cancellation scale prevents disputes:

• Cancellation up to, for example, 7 days in advance: free of charge.
• Within 7 days to 48 hours: a part of the contract sum.
• Within 48 hours or no-show: the full or the majority of the contract amount.
• For outdoor shoots: a weather check with free rescheduling to a new date.

Also state what happens if you have to cancel due to force majeure (illness, defective equipment): reschedule or, if replaceable, arrange for another photographer.

5. Delivery, payment and liability

• Delivery: number of images, file format, level of post-processing, and an indicative delivery time. Additional selections or retouching at an extra cost. File retention period.
• Payment: payment term (e.g. 14 days), any down payment for larger orders, and the consequences of default (statutory commercial interest and collection costs).
• Liability: Limit your liability to a maximum of the contract sum and exclude consequential damages. Include a force majeure clause for loss of images due to equipment failure — with a best-efforts obligation to conduct a new (free) shoot where possible.

A brief practical example

A wedding photographer makes no agreement regarding cancellation. Two days before the wedding, the couple cancels; the day was already blocked and could no longer be resold. Without a cancellation scale, the photographer is left empty-handed. With a clause stating “within 48 hours: full contract sum due,” the reserved day would have been properly covered.

Honest recommendation

If you work with recurring private assignments and the amounts are limited, you can perfectly well draft the terms and conditions yourself with a good, photography-specific basis — provided you make the licensing and cancellation provisions concrete and send the terms along before the assignment. A lawyer is not strictly necessary in that case.

As soon as commercial licenses, exclusivity, resale to third parties, or larger contract sums are involved, have the provisions regarding copyright, usage rights, and liability reviewed by a lawyer. One forgotten word in the license can be the difference between one-time use and free, unlimited reuse.

Read more: general terms and conditions for photographers, what are general terms and conditions for photographers and having general terms and conditions for photographers drafted.

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