What 15 Years of Writing Videography Contracts Has Taught Me
Before we get deep into the woods on this article, it goes without saying that I am not an attorney. This information is knowledge gleaned from 15+ years writing videography contracts while running a small video production company, plus another 8 years of doing finance and business development in the software industry. You should always get professional opinions from an actual attorney, particularly if you’re dealing with jobs or intellectual property worth hundreds of thousands, or even millions of dollars.
Disclaimer over. Let’s get into it!
We all know that a contract is a legally binding written agreement set between two or more parties. (In some states and countries, verbal agreements can be legally binding too, but that goes beyond the scope of this article). Videography contracts define outcomes and set expectations; but they also provide protection—protection for you, your client, and for the art you create. However, because they are business-related and quite often sales-related, many creative professionals (particularly newbies) are reticent when it comes to discussing, creating, or executing contracts.
I’m shocked at the number of small business videographers and filmmakers I speak with who either don’t have contracts, or don’t nearly have all the clauses they should have in the contracts they do create. If you think this describes you, let’s remedy that situation.
I want to discuss two types of contractual relationships when listing these all-important clauses: studio/client relationships and studio/contractor relationships. The first relates to production companies (or individuals) working with traditional corporate clients. The second has to deal with contracts between production companies and the contractors they hire. If you market your business to traditional clients, both of these cases apply to you. If you primarily do freelance video work for other studios and companies, then you could jump down to Studio/Contractor Relationships.
Studio / Client Relationships
I suspect most of you are in a studio/client relationship. I’m using the term “studio” to represent any video production entity that serves corporate, organizational, or even individual clients. These would be analogous to “retail” relationships.
Naturally you’re going to have clauses related to what the deliverables are, what the payment and pay schedules are, etc. But there are some clauses it might not necessarily occur to you to include that you absolutely should.
Generally speaking, U.S. law states that absent a contract or an employee/employer relationship in place, whoever creates an image, owns the copyrights of that image (providing that image itself is not violating anyone else’s copyrights, e.g. logos, recognizable landmarks, etc.)
Therefore, have a paragraph in your videography contract explaining exactly who has copyright ownership of the materials you create. If you don’t do this, the client will assume they own that footage, and for good reason. They paid for it. But if it is not expressly stated otherwise, you’ve created a gray area that could result in a stressful future relationship should the client want that footage (expecting to get it) and you refuse to hand it over (which would be in your rights to do).
Your copyrights clause should outline whether or not the copyrights are shared. Will the rights be for worldwide or domestic use only? If the copyrights revert to the client upon full-payment, how are you able to use the work afterwards (e.g. demo reel, portfolio page, etc.) Does the client get the raw footage and/or digital files?
This last comment about raw footage is worth addressing specifically. I frequently see the question about raw footage come up on Facebook groups. This is an area where video producers can take a lesson from the professional photography industry. When a company hires a professional commercial photographer for a gig, they are LICENSING those photos, and a solid commercial photography agreement will stipulate exactly what that company can do with those photos. In many cases, the client pays extra if they want the full rights to the digital files or negatives.
Well, if you shoot video for a living, the same holds true for your footage. It has value. Your creativity and artistic eye created it. There’s value in the fact it can be edited in the future. If you don’t get to be paid to edit future versions of it, you are entitled to some remuneration at the time you shoot it.
Now, I know many of you who shoot corporate video hand over all your raw footage and the rights, and that’s totally fine. But I would challenge you to experiment with contractually retaining the raw footage rights and adding a fee for the client to obtain them. (I charge the greater of $500 or 10% of the total contract value). Most of the time, your client won’t care. If they do, and you’re used to giving it away anyway, make that clause part of your bargaining chip when negotiating the deal. Or use it as an incentive. If the client commits to hire you within a certain time period, you’ll grant them full ownership rights of the raw footage, which you could describe as a huge savings for the client.
This is one of those paragraphs that large corporations ALWAYS have. When I worked as a business development manager for the Quicken division of Intuit, the legal department was constantly making sure the indemnity section of our contracts heavily favored Intuit.
An Indemnity clause basically says to the client, “If you give me something to include in your project that you didn’t have the right to give me, and I’m sued because of it, you will take the heat and pay the damages.” Indemnity would cover things like photos or music clients give you; scripts they’ve written; or competitors they may poke fun at or criticize in the video you create that causes said competitor to sue.
Who has creative control over the creation of the project? Some clients like to be able to sit over your shoulder in the editing room and tell you shot by shot how a piece is to be edited. Many larger post-production houses are designed around this very fact (e.g. they have lounges, couches, and kitchens to make the long editing sessions with the clients more comfortable for both the editorial team and the clients). I personally don’t work that way.
My clients hire me specifically because of my style and skill. So it’s important for me to make it clear (even contractual) that at the end of the day, I have final say in the creative. Now, in truth and practice, I am not going to give the proverbial middle-finger to a client that wants me to make a change I absolutely hate as an artist. I do want them to hire me again. And I even state in my contracts that clients may provide input. But a client is hiring you because they like your work. They need to trust that you can deliver exactly what they need.
It did not take me too long when I first started my business to add a “Revisions” clause to my contracts. By the second or third time a client gave me a round of edits that took almost half as long to implement as the original first cut, I knew the insanity had to stop.
It’s imperative you stipulate how many revisions of the project are included in the original fee. Actually, not just how many revisions, but more importantly, how many hours of revision editing time. My contracts build in one hour of “complimentary” editing time. (I say complimentary, but in truth, the cost of that editing is built into whatever rate I charge, regardless of whether or not the client uses it). You also need to make it clear what is the hourly cost for editing time for any changes afterwards.
I can’t tell you how many times I’ve read on forums or Facebook groups about videographers dealing with clients who want so many changes it will be ten hours worth of work. If you have a paragraph like this already in place, you can refer to it when they start listing all the changes. I always give my clients an estimate of how much their changes will add to the project ahead of time so they can decide for themselves if the changes are worth it. You never want to surprise a client with a huge bill after they’ve already paid you thousands of dollars.
Change of Scope
What happens if the client starts to add a bunch of work mid-project that increases the scope significantly? You need to spell that out. Does the contract become null and void? Does it increase in cost, and how is it determined?
Studio / Contractor Relationships
So now that we’ve covered some key clauses for the “retail” side of the industry, let’s take a look at the “wholesale” side. That is, relationships between studios and the contractors they hire.
Photo by Jimmy Bay (CC0)
It’s important to state what is the relationship between the studio and the contractor. It should be made clear that the contractor is not an employee and as such will be responsible for his or her own taxes.
It’s worth noting that even if you have a subcontractor agreement in place, if in practice the IRS determines a “contractor” is really an employee, you could be on the hook for thousands of dollars in back employment taxes and penalties. Things they look at are whether or not the contractor works in your office, how much say you have in how they do their work, whether or not they have a viable business of their own with plenty of other clients, etc. It’s worth investigating the law on this is you’re uncertain.
Remember that copyright law I referenced at the beginning of the article? Well, the same holds true when you hire someone to go out and shoot for you. When you send a contractor to shoot on your behalf, make sure the contract stipulates your company owns the rights to the footage.
There may be jobs where the information revealed to the contractor is sensitive or private. For that reason, make it a contractual obligation for the contractor to keep that information in private, until such time as it becomes public knowledge.
Many freelancers work exclusively for other studios. But there are a large number who also market themselves as “studios,” yet do freelance work to help supplement their income. I frequently hire contractors like that (and I myself will do freelance shooting or editing work from time to time). There are many situations where I send such a contractor to a job and I am not present. The contractor is there by himself (or with a small crew). It’s possible my client may ask for a business card or contact info. Therefore, I have stipulations in subcontractor agreements that any requests for contact info be referred to me. Contractors hired to shoot for another studio should not be allowed to pass out their own business cards.
Use of Video
In my first year of business, back when I shot weddings, I had a bride contact me who noticed that one of the videos I had on my website had the same footage that another video company had on their website. Ironically, the footage was that of my own wedding. I hired a small company to shoot my wedding (as you can guess, I was rather pre-occupied that day); however, I edited it and had the final video on my website’s portfolio. Well, imagine how odd it is trying to explain why two different companies had the same wedding on their respective websites.
Make it clear how the contractor can use the footage. This applies equally to contractors in editorial or visual effects. This is a delicate area because on one hand, it’s nice to be supportive of other colleagues in the area and give them the opportunity to market their work. But on the other hand, it’s your brand that produced the video and served the client. You take the credit if things go well, but the buck also stops with you if anything goes wrong. You invested in the marketing to attain that client. So, above all else, your interests with regard to the credit for creative work should be prioritized. For what it’s worth, this is how I word this clause in my subcontractor agreements:
Subcontractor understands that any video Assignments where the Subcontractor has shot and/or edited a video for Studio is work-for-hire and will be used by Studio for the promotion and development of Studio’s business. As such, unless Studio gives permission in writing, Subcontractor may not use any videos created under this Agreement for his/her own promotion. Subcontractor may not use videos created for Studio in any published or produced reels. Subcontractor may not post any versions of video created on behalf of Studio on its websites or any affiliated websites, excluding temporary review sites where Studio will analyze Subcontractor’s work. However, Studio recognizes and supports the Subcontractor’s own career goals, and as such, Subcontractor is allowed to embed any video or point to any Studio URL where Studio has posted a video on which Subcontractor participated in some significant degree. However, in doing so, Subcontractor must clearly state what role he/she had in the production of the video, and that the work was done as work-for-hire for Studio.
One Last Word – Initials
Have you ever signed a rental or purchase agreement for a piece of real estate, and you had to initial every page and even some key paragraphs (like the paragraph about any asbestos removal). The purpose of these initials is clear. Everyone knows that people tend to skim through contracts, so initialing specific paragraphs forces the party in question to state that they have unequivocally read those important clauses. You don’t want there to be any miscommunication with respect to issues like copyrights, usage, or especially turnaround time. If it’s going to take me 60 days to deliver the project, I don’t want a client calling me a week later wondering where the project is.
What’s In Yours?
You have probably figured out by now that a lot of these clauses were added after hard lessons learned over the years. I have no doubt many of you have contracts that evolved over time as you went through your own respective “schools of hard knocks.” Share in the comments what changes you’ve made to your videography contracts over the years. Give us your best horror stories and help others avoid making the same mistakes.