VIDEO CONTRACT PITFALLS

Event photography is a special skill. It takes not merely a strong technical ability to capture images of the quality level expected by your clients, but also a keen sense of timing, situational awareness, and empathy to know when an important moment occurs and how best to capture it. All of this is doubly true when capturing video instead of images. How do you know when important moments are coming so you can catch the whole thing? How do you capture mobile moments, when people may be moving around, dancing, walking down the aisle? These are all concerns that you should have the discretion to approach and solve in your own way, and the best way to ensure that freedom is with your contract.

Many event videography contracts include a fairly specific schedule of services that lists precisely which pieces of equipment will be used: a certain high quality camera, a tripod, a certain lighting set-up. This is very understandable and many clients may be purchasing your services specifically because you will use those items. But what happens when, for whatever reason, you can’t use them? Maybe the camera you promised to use gets wet, or confiscated by customs, or you just drop it by accident and it breaks? Maybe the tripod you promised to use is last-minute forbidden by venue staff for fear that it will damage the carpets or the lawn? For this reason, it’s a good idea to hedge your bets. One way you can do this is by simply not listing the specific equipment used - instead, state that “industry standard” or “highest available quality” equipment will be used. Another way is to include a provision in your contract stating that in the event that the promised equipment cannot be used, replacement or backup equipment of similar quality will be used. One provision that should always be included is one stating that the client understands and agrees that the photographer will use their professional discretion to capture the moment to a standard comparable to other professionals in the field and to the best of their ability at that time.

Another important provision is one that every photography attorney will harp on: a creative license clause. A creative license clause is something that every creative commission should have, be it photography, painting, fashion design, illustration, or anything else, and it protects you from the worst sort of legal attack: when the client “just doesn’t like it.” These clauses typically restrict the client from rejecting the final product “on the basis of taste, aesthetic criteria, or other subjective judgment.” This sort of clause is important to have not merely for its own sake, but also because it works in conjunction with the clause described above. Imagine, for example, that your contract promises a “tripod-filmed” wedding ceremony video, but when you set down the tripod, venue staff rushes over to stop you, saying it will damage the antique carpet. You think quick and film the ceremony with a handheld gimble stabilizer you brought as a backup, but when the client receives the final product, they complain that the video is shaky and want a full refund. Here, you can argue that not only are the client’s complaints “aesthetic” and thus barred by your creative license clause, but also that you used your professional discretion to capture the moment to an industry standard and to the best of your ability at the time, even if you were not able to use your tripod.

Last, it’s also a good idea to include an editing discretion and no guarantee clause, which are simply clauses that state, respectively, that the client understands that the photographer will edit the video in order to show the best moments and tell the best story, and that the photographer doesn’t guarantee that they will capture any particular moment. A well-written editing and no guarantee clause can provide you with a great deal of freedom to determine how to present the video you capture; you can cut out messy moments, audio or visual fuzz, or anything that isn’t up to your standards, and the client can’t attack you for any special moments you might have missed. Of course, your clients will often purchase your services specifically to capture certain moments - the first kiss at a wedding, the ribbon cutting at a grand opening, etc - and of course you may want to include guarantees that these moments will be captured. For that reason, it’s a good idea to include in your no guarantee clause a requirement that if the client wants a specific moment captured, they must inform you in advance and warn you when the moment is imminent.

Videography can be a tricky service to provide, and the foundation of it is a solid contract. Never hesitate to contact an attorney to either draft a contract for you, or help you review, understand, and upgrade the contract you have already.