DPL Frame to Finish Presentation

Terms of Endearment:
Contracts for Wedding
(and some other legal issues)
Today’s goal: Provide an overview of some key legal issues that you
will probably need to address as part of your business.
Basic understanding: help you recognize key issues, deal with some
of them yourself and know when you may need to speak with a
Primarily discussing contracts, but will also cover key issues in
copyright and other issues including travel and business formation.
Where did it all go wrong – Part I
Australia lawsuit brought by bride and groom against wedding
photographer. Sued him for missing key moments during the
wedding, including the big kiss. Photographer claimed it was “just a
peck” and that not all moments could be captured.
Court sided with photographer on the “kiss” issue, but found that his
photographs were sub-par and ordered him to pay $710 of $6,400
claimed in damages.
Takeaway: include language about providing you with access to
important moments in the agreement; clear communication never
hurts; limitation of liability provision in the agreement.
Where did it all go wrong? Part II
Wedding photographer receives demand letter from the groom’s
brother (a lawyer) claiming that the photographer should pay
usage fee for each family member who appeared in photos posted
on the photographer’s website.
Photographer obtained permission to use images on his website
from the bride and groom, but not model releases for other guests.
Photographer was covered by insurance, but they had to pay on
the claim.
Takeaways: avoid using images with “unreleased” people on your
website or in promotional materials; obtain model releases from
bride & groom and possibly “key” guests; good idea to have errors
and omissions insurance.
Contracts – Use Them
Get it in writing - use contracts.
Develop a standard contract that you can use for most situations.
Worth the effort to save you headaches later.
A contract that you understand and know – not reinventing the
wheel every time.
May need to be modified, but you will know the pressure points.
Key Contract Terms: Who & When
Sounds obvious, but identify the parties: your name and address
(your business if applicable) and their names and addresses.
Whether it’s the bride & groom, parents or someone else – make
sure that it’s in there, it’s clear and that you can find them. If
possible, the agreement should be with bride & groom – it’s their
event (okay if someone else pays).
Recommend including the date at the top of the Agreement – no
Key Contract Terms: Consideration
For a legal agreement to binding, there must be consideration –
both parties give something of value (e.g., money for services).
In general, not an issue in terms of contract validity – you are
providing services (photos or video) in exchange for payment and
the contract will refer to that exchange.
Key Contract Terms: Scope of
Include a detailed description of what you will provide – delivery package,
locations, hours, date, time and location for ceremony and reception (or for
other events), “window” time for portraits and group shots, delivery dates and
anything else important, such as pre-event consultation, event guide (someone
to tell you who is important).
Moments to capture – if included, also include language that they must provide
you with a reasonable opportunity to capture those moments.
Cooperation and communication clause.
Creative control – you have it. You choose what pictures you will provide.
Exclusive – you are the only professional photographer / videographer – anyone
can take a shot, but don’t interfere and don’t take shots of my shots.
Plain English – not legalese. Something that you and your client can understand
Key Contract Terms: Payment
Structure and amount is up to you, but some key points:
Refer to the deposit as a “booking fee” – non-refundable, including if
wedding is cancelled.
Make the amount of the booking fee and the amount due after the
event clear and easy to understand with deadlines: non-refundable
booking fee of $1.00 due by X date with remaining balance of $1.00
payable within X days after the Wedding Date (should be defined in
the agreement).
Collection costs: recovery of attorneys’ fees and costs if balance is
unpaid and you need to hire someone to help you collect.
Other notes: specify whether HST is included – recommend including so
that the actual payment amounts are clear and easy to understand.
Optional: Include fees for additional services, e.g., additional prints,
CDs, overtime.
Key Contract Terms: Additional
Refer to them in your agreement and be specific.
Meals – you (and your team) get fed.
Include additional costs – especially if travel is involved. Okay to
include reasonable caps – either a total cap or cap for specific
items (i.e., hotel).
Include deadlines – X number of days after providing receipts or
with the final outstanding balance.
Key Contract Terms: Usage Rights
What the parties can do with your work.
You own the work (copyright) – unless otherwise stated, you own the
copyright – recent change in Canadian copyright law for
photographers (more later).
But still be specific about what you can and cannot do with the images
in terms of use (website, promo pieces, portfolio, contests, art
exhibitions, display in studio, etc.).
Also be specific about what they can do with it – for example, allowed
to post work on website, social media, YouTube (or not). In general,
personal use and limited reproduction (friends and family) allowed, but
client is responsible if work is republished or resold – especially for
Avoid surprises on both sides.
Key Contract Terms: Releases
Obtain model releases from bride and groom – confirms that you are allowed to
use their images for promotional purposes. Incorporate into the agreement.
Be careful about using images of other non-released people for promoting your
business. Try to get releases if you want to use their images.
The model needs to sign – other people can’t sign on their behalf (unless minors)
Property releases: generally not as important as model releases, but you might
want your client to obtain a property release if you want to use photos of a
recognizable location or a private third party residence – client should be
Brands (trademarks): try to avoid using images on your website that have
obvious brands. Probably won’t be raised as an issue – not seen as being
“negative” – but some brands are very sensitive and strict about control.
Some red flag properties and brands: Disney, Coca Cola, Hollywood sign, etc.
See here for more: http://www.pacaoffice.org/resources/specialReleases.html
Key Contract Terms: Indemnity
Indemnification: shield you from liability if a non-party sues you.
Not an absolute shield, but it helps.
Two important points that need to be included:
Shield you from liability caused by your client’s breach. For
example, client uses image in a way that breaches the agreement
and someone else sues you based on that use.
Shield you from liability for any claim relating to the services that
you provided under the agreement. Broader than only shielded if
your client breaches the agreement.
Key Contract Terms: Limitation of
Basic idea: even if your client or someone else brings a claim
against you, your liability is capped.
Common to cap at amount paid for your services, but could be a
fixed amount.
Legal input helpful – requires some finesse.
Additional Provisions
Inherent quality: photo and video quality may fade over time.
Client releases you from liability for those inherent qualities.
Substitute: client option for you to substitute another professional if
something unforeseen happens. Include warranty about substitute
being a competent experienced professional.
House rules: may be limited by ceremony official or site rules. Client
accepts applicable impositions and is responsible for negotiations
with technical input from you.
Guest cooperation: client responsible for conduct of guests and
ensuring cooperation of other service providers.
Key Contract Terms: “Boilerplate”
Refers to the language that you find at the end of most contracts.
Some key points:
Choice of law and forum – what kind of law will apply and where the
parties can sue if there’s a dispute. Not a big deal if you are all local,
but important if your client is located somewhere else.
Independent contractors – make it clear that you are an independent
contractor and not employed by your clients. Probably implied from
the context, but still good to include. Will defeat any “work for hire”
claim re: copyright ownership.
Entire agreement – memorializes that this is the whole agreement. No
side deals.
Force majeure – the “act of god “ provision. If unforeseen event stops
wedding, booking fee is non-refundable. If unforeseen event stops
you, either substitute or you return booking fee.
Copyright: Basics
Copyright exists "in every original literary, dramatic, musical and artistic
Copyright provides you with the exclusive right to prevent others from
copying your work.
It happens automatically from when the work is created.
Low threshold for originality – “more than trivial or mechanical
intellectual effort” – doesn’t need to be “great” or a work of art. Almost
any photo or video satisfies the threshold. Universal standard.
Term – 50 years after the life of the author. (70 in USA)
Registration – not required in Canada. In the US, required to obtain
certain remedies.
Copyright © notice – not required, but a good idea. Also some form of
Copyright: Removal of “Portrait
As part of the 2012 amendments to the Copyright Act (referred to as
the Copyright Modernization Act), law was changed to make
commissioned photos the same as any other copyright-protected work.
Before: in general, creator of work is the owner of the copyright, but
there was an exception for “engravings, photographs or portraits” that
are commissioned (i.e., photos for weddings, family portraits, etc.) that
in the absence of an agreement to the contrary, the first owner is
whoever commissioned the work.
Now: exception eliminated so that photographers who create these
categories of works are treated like all other authors. The onus is now
on consumers to contract for copyright ownership (with exceptions that
allow for non-commercial uses).
Recommendation: not required to refer to copyright ownership in your
agreement, but you should anyway.
Copyright: Moral Rights
Moral rights include the right of attribution – the author's right to be
associated with the work by name and the right to remain
anonymous, and include the right to the integrity of the work (the
right to stop the work from being distorted, mutilated or modified, to
the prejudice of the author's honour or reputation, or from being
used in association with a product, service, cause or institution).
Protected under the Copyright Act of Canada and not assignable.
Be clear in your agreement about what kind of attribution you want.
Your client probably doesn’t want copyright notices all over their
wedding album, but you should include the required form of
attribution / watermark if they want to use your work on the Internet.
Copyright Infringement
Unauthorized use of your images or video – by your client or by a
third party.
Internet – once it’s there it’s hard to stop – right click on Google. Use
watermark and/or copyright notice.
Policing tools for images: Tin Eye and Google. Google is probably
the easiest tool to use:
Reports websites where your image is being used.
Enforcement tools: demand letters, DMCA takedown in the USA,
but you should speak with a lawyer in the applicable jurisdiction if
you are seeking compensation or something more than just telling
them to remove the image or video.
Copyright: Music in Videos
Videographers have more copyright-related issues to consider – primarily music.
SODRAC (collective licensing agency) – clear sync rights if work in their
repertoire. May need to obtain from rights holder – start with music publisher.
YouTube and other services: trend toward monetization and away from lawsuits
Request permission – essentially, I am making a video that will not be offered for
sale or rebroadcast and would like to use your song.
Use a cleared work and dub it into the video – remove a “famous” song for a
work where you have obtained the rights.
Amendment to Canadian Copyright Act: “YouTube” exception to infringement
for non-commercial user generated content. Must be non-commercial, provide
attribution if reasonable, grounds to believe you weren’t infringing, and does not
have substantial adverse affect on market for pre-existing work. No case law
yet. May not apply if you put the video on your own commercial website.
Probably applies more to your client’s use of the work.
Copyright: A Final Word About
Enforce your rights – most cases don’t go to Court, but understand
that litigation is stressful, time-consuming and expensive for both
sides. Be firm, but be reasonable. Avoid histrionics and overly
aggressive language.
Damages are not easy to establish. May not be a “windfall” unless
you can show that the defendant acted in “bad faith” and that you
are entitled to statutory damages.
Other Issues: Travel for Destination
Check the consulate of the country that you are visiting and ask for
the rules and regulations for taking professional equipment into that
Many countries have restrictive “protectionist” rules covering this
kind of work.
Forms are often available where you can register your equipment –
avoid potential seizure at the border.
Generally not liable for paying taxes if you have been paid in
Canada, but worth looking into with your accountant.
USA: need to apply for a temporary non-immigrant worker visa.
Other Issues: Corporate Form
Options include: sole proprietorship, incorporation and limited
liability company.
Disadvantages to incorporation / LLC: more expensive and
Advantages to incorporation / LLC: personal liability, taxes.
Speak with your accountant, but in general, look to some form of
incorporation if you’re business is growing in size and scope (e.g.,
hiring people).
Dan Pollack Law
[email protected]
(416) 356-5292

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