Help! A Top Client Won’t Agree to My Terms of Service!

September 10th, 2018

Polina in Florida says:

I have a pissed off client who doesn’t want to agree to any of the terms on my Limited License Release for Real Estate shoot. To make matters worse, he is the owner of a small agency that supplies 50% of my shoots and refers a lot of new agents to me. He said that I get free publicity from him as it is and that should be enough.

I would like to know if, in your opinion, my terms of service are reasonable? Maybe as a real estate photographer, I shouldn’t have any terms.

I would like to have an honest opinion from my peers of my terms so I can understand if I’m being unreasonable on some (even though that guy said that all of them are not acceptable to him) or if he is just being manipulative. Below are my terms of service:

Real Estate Photography
In order to provide you with the best service and support at reasonable pricing, the photographs are not sold but are licensed to use. This service agreement is a limited license photo release.

Limited Licensing Release
All images delivered are licensed to the “licensee” for the purpose of listing a property only. Term of the listing, not to exceed 1 year. A primary photo can be used for a longer duration and for additional “sold” marketing materials.

All images used in social media must be credited to XYZ Photography. Only the “licensee” has permission to use the delivered images on any electronic or printed form of advertisement for the promotion of the property. Builders, stagers, designers, or “third parties” that wish to use images must contact the photographer directly for licensing and fees. In addition to payment, a property release must be obtained from the homeowner by that third party. For image integrity and quality control, no images should be altered once delivered. Image editing will be done by XYZ Photography; fees may apply. Contact XYZ Photography for an additional release for any/all printed publications. Fees may apply. Images cannot/will not be made available to another agent who takes over an expired or withdrawn listing.

All images and rights relating to them, including copyright and ownership rights in the media in which the images are stored, remain the sole and exclusive property of XYZ Photography. Unauthorized use of images is a copyright violation and will result in termination of this contract.

To me, your terms of service look very reasonable! Good Job! I think all real estate photographers need a TOS similar to yours.

I think it is very unreasonable on your client’s part to not agree to these simple and concise TOS. Here are my suggestions for moving toward resolving this problem:

  1. Have a face-to-face talk with him to see if you can get some specific insights into what his issues are. Explain to him why you believe TOS are important in this business.
  2. Perhaps what is at the bottom of this is he doesn’t believe you give him enough back for all his referral business. Offer to give him a specific percentage discount on his shoots every time he gives you a referral.
  3. It may be worthwhile to talk to someone else in this client’s company who can give you better insight as to why this client is so upset. It may not be what it appears on the surface.

Since he is your top client, it is important to get to the bottom of why he is so upset. At the same time, it’s not good to be pushed around by someone who can’t be rational.

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18 Responses to “Help! A Top Client Won’t Agree to My Terms of Service!”

  • In the end, he is 50% of my business, I would kiss his ass. If this doesn’t appeal to you ask for a sit down to find out what his issue are.

    I would be amazed if any of my shots ended up in a magazine and would be flattered. If your a high end architectural snob, stick to your guns, but I would prefer to feed my family and toys.

    When I have been asked about my terms of service, (and they are restrictive) I tell them I am protecting my ability to use the images to promote me. Never had a problem with that. What I will not do is sign a brokerages agreement because the fine print gives them control over you. They OWN you.

  • At this point we do not use Terms of Service agreement mainly not to scare realtors away since many cheap Real Estate Photography companies give away their images without any restrictions, fully transferring the copyrights to the images to the realtors. When clients ask, I tell them that they are licensing the images and that my company own the copyrights and they are usually fine with that.
    I had 2 major clients who told me to sign an agreement which gives them unlimited rights to the images to do as they please with them exclusively.
    The first client is the biggest realtor in the Miami area and I signed their agreement with a 20% price increase on shoots I did for them. They gave us over 50 listings in 1 year at the average price of around $600 so I did not worry much about giving them the images. Beside that, some of those images I managed to re-license to some architects and designers with the realtor’s approval.
    With the second brokerage firm I came back at them with my agreement where I did give them usage to the images without time restriction but I turned around all their other terms regarding copyrights and need to credit me when they publish our images. To my utter surprise, their legal team accepted my agreement and we keep working happily.
    So, even though I am a full supporter for keeping your copyrights to your images, you have to evaluate the chances of making any money every again from the images you shoot for this realtor. If the answer is “unlikely” then do whatever it takes to keep the client happy. Talk to him and try to understand his point of view and you might even be able to find a middle ground. And for your other clients, just keep your current Term Of Service if they are fine with it.

  • Polina, I hope you won’t mind if I plagiarize some of your wording for my own Terms of Business. I too think your Terms are quite in line with not only RE photography but all professional photography used commercially and shot by self employed photographers as opposed to photographers who work for a salary.

    But forgive me if I am reading the above wrong. But you say this agency is your best client and has referred you to other work. Then also you say he won’t agree to any of your terms. So I have to infer that you have been working with him with no contractual agreement at all and suddenly handed him your terms of business afterwards. And after working with none of these terms ever spelt out verbally far less in writing? Am I reading the situation wrong or right? If right, then you basically defaulted on any terms of business with him and left him to make up his own mind about what basis he was working with you on. Or am I reading too much into this?

    It is always vital to start off with a client before the very first job with your Terms of Business up front including payment, until you have a track record both for usage and payment. Then you can make exceptions. But not often.

    I think your terms are quite in line, but perhaps your timing of introducing them to your client was not. If he is outraged, I agree with Larry, invite him out for coffee (a drink might just feul his outrage) and calmly explain that your terms are standard for the industry and by law, the artist owns the copyright by default, he, the client, does not. And your terms simply reflect that fact of life. The photography is leased for a particular application and publishing usage. Not others, but that also has to be spelled out. But that since he has been such a great client who you appreciate, and want to keep working with and very much appreciate the referrals, can you both come to some understanding that all you are doing is applying the industry standard to your transactions. That being said, go down the list and find out what his reasons are for objecting to them, one at a time. And see if for him, you can come to some accommodation/compromise that would work for you both.

    You do have to protect yourself, your business, your reputation as a professional and not a push over but also as someone who is willing to work with clients and be a bit flexible as need be.

    BUT having said that, this is only with this client with whom you have a track record of working without either a Terms of Business, PO or job by job contract. He probably thinks you are trying to stiff him suddenly out of the blue, if this is out of the blue for him. Put yourself in his shoes. He may not know what is industry standard.

    But for all new clients and referrals, before you do a job, have a copy of your Terms and price schedule signed by them before you start work and get paid up front until you have a track record. This is all about communication and being up front.

    When I was shooting advertising photography and annual report photography, I insisted on both a PO spelling out the job, the payment and the usage, but I had my own agreement doing all of that as well that included what type of publishing was involved (National, State, Local, Trade, Magizine, Newspaper etc) all of which commanded a higher price as the audience got larger and thus the returns on investment for the client. Amazing how often shady agencies signed me up for a trade ad or brochure shoot then sent the photos off to an ad agency who unknowingly used them in a national ad. The agencies never failed to pay me the difference and then billed it to the client. So explaining usage is also important. You may have noticed that this is standard with stock photo agencies. They too charge more for bother larger resolution but also based on where the images will appear. Same with music for video. Nothing new here, except perhaps for your client.

  • While they may seem reasonable in my opinion they place an unreasonable burned on the Realtor that they can’t control.

    Your terminology makes it impossible for them to be used and distributed on the MLS. The MLS make money by distributing those images. The Realtor must agree to their terms before he can post them. Your agreement is MLS unfriendly.

    Your requirements for the attribution of the images when used on social media places an addition burden on the Realtor. Once shared the Realtor has no control.

    Your remedy for any infractions by others out of control of the realtor is termination of the contract to the Realtor.

    No offence, but this is poorly written. Throw the whole thing away. There are plenty of MLS friendly contracts out there. You never mention that use of the images are governed by US copyright law. That should be your first sentence. The next paragraph should allow the use of your work by the MLS under their terms. No matter what you do you will never be able to fight the multi list terms. Don’t fight city hall. Next you can mention these are licensed to the Realtor for use in advertising the property for sale in any manner as long as the realtor has the listing and the license is non transferable. Then mention the license ends on sale of the property or termination of the contract by the seller with the realtor. Never make a Realtor responsible for the violation of your terms by others.

    There are plenty of good MLS compliant Terms and conditions out there. Use one of those.

  • The wording on the licensing is a bit odd and could do with a look and maybe some clean up by an attorney with experience in the field. If you have already done that, get a second opinion. Construct your license agreement to package how brokers and agents are most often going to use your images. They will want to put them online, make brochures and use them for their website. Requiring a credit is useless in my opinion and your client may want to keep you a secret and not let the competition know where they get such good images for their listings. I also suggest leaving out any mention of subsequent agents relicensing images. It should be part of your discussion with agents, but not doctrinaire. I don’t have a single customer that objects and they all know that I will charge just as much or even more for reuse. I also explain how it’s a bad idea to supply images to the seller of the home before the sale in case they deliver the images improperly to another agent. If the seller wants a photo, it’s better to provide them with a print or two which I can make for a very nominal price after the home has sold. I note that model home photos where the usage is to advertise multiple addresses requires additional licensing and that third party licensing is always thru me and separate from the work I do for the agent. I let the agents know that I pay a commission for referrals to builders, stagers, contractors, etc. It gives them some incentive to not give images away.

    It’s tough to be stand up to your best client, but you do need to have your business on a professional footing with regards to how you handle Copyright. The default is that you own the Copyright the moment you make the photos and it’s a good idea to register your images. Real estate brokers and agents live and breath contracts so they should understand that you want one too but still, many don’t have any experience with the creative arts and will wrongfully believe that because they have paid you they own the images and can do anything they want with them. Use the example of buying a CD or DVD. They aren’t getting total rights to the album or movie. They aren’t even getting the rights to make copies for friends and family even though courts will often dismiss such trivial trespass. Buy a ticket for a movie and you have purchased the license to occupy a seat and enjoy the movies, but if you try to record it, they’ll have you arrested and kindly offer you the option of paying a multi-thousand dollar fine if they are being nice to letting a judge set an even bigger fine and some jail time as well. You’d get less for stealing a car in many cases. If they buy their music on the iTunes store or from Amazon, the license can be revoked at any time and the media remotely removed or restricted from you device and the license expires when you do. No willing your music collection such as you could do with LPs and CD’s. You don’t even have the right to transfer. The laws that apply to music and movies also apply to you photography. Songs are sold all of the time. If the broker wants to own the photos you create, the going rate is pretty high.

    In the world of product photography and images made for magazines, the fees a photographer is paid are many times more than what RE photography goes for. The portrait photographer Peter Hurley talked about getting paid $3,000/pair for photos of shoes when he was hired by an agency handling Reebok in one of his tutorials. That’s a taste of what images go for when being supplied with all rights. A contractor might not balk at paying $100/image or more for use in local advertising and in their portfolio for a couple of years. Agent’s won’t pay that sort of money for common middle class home photos but the scope of their usage and the value of the images are less than those of the builder. Typical RE rates for many take into account the limited usage that agents make of the images and that the photographer has the opportunity to earn additional income from secondary licensing. As an alternative, the broker could hire you as an employee, pay you a salary, supply you with gear, pay your health insurance/taxes, send you to school periodically, provide a company car and a desk to work at and would then own the images by default instead of you in the absence of a contract that states otherwise.

    I think of my ToS and Licensing terms as two separate things so the title of the topic is a bit misleading for me. My ToS covers stuff like what I’ll do when homes are messy or when an agent shows up to an appointment 30 minutes late or cancels at the last minute.

    If the broker continues to not come around to the absolutely normal way photo licensing is done, you’ll have to make a hard decision about how much work you want to continue doing for him in the future. It’s also a big lesson in not letting one customer get to be too much of your income. Going forward, plan on spending time with any new client going over your licensing and your terms before taking on any work for them beyond, maybe, one job. If they are not going to agree to the way you operate, bending over too far is just saving up problems for later. Also, decide in advance what terms you will negotiate and which ones are not up for discussion. Will you transfer ownership of images you make and under what arrangements if you will. If an agent admits they are always late and would never pay for rescheduling, will you cross that out in your ToS for them? Cancellations?

  • Photographers (and artists in general I think) tend to think of their contracts in a very unilateral way. How do I protect myself? Most terms of service contracts remind me of the software usage agreements we sign without thinking or reading them. It’s all about the provider – there’s nothing in there for me.

    My TOS today is simple: Use these images as you like. Don’t resell them. Copyright is still mine. Go forth and sell a house. Now, if I am doing other commercial work, thats a different story, but for realtors? Make it easy on them.

    We live in a different world today. If you have to have TOS, rewrite it to spell out first what YOU are doing for them. Make it a contract – hold yourself accountable to them FIRST. If you are in their shoes, that’s a much easier deal to sign because thats the world they live in – the world of the contract. Put a money back guarantee in there.

    And a final, tangential note. I disagree about “buying” referrals. Others experience may vary, but I’ve never had a quality client complain about my pricing. I’ve had some quality prospects walk away because they thought I was too expensive, but I’ve tried all manner of promotions and they don’t work for me. Instead, work SOOOO hard to deliver SOOOO much value that they think they are robbing you every time they write you a check – the referrals will take care of themselves.

    Good luck!

  • Most of your terms sound reasonable, but I do agree with some of the points made above. Make it simple as realtors are very busy people. The one thing that stuck out to me was that you require credit on all social media posts. More work for the agent and something they shouldn’t have to do. But basics like “I own copyright”, and “don’t sell MY images” are pretty much the norm in the industry so I am wondering why this particular agent is throwing this hissy fit. To say I won’t agree to ANY terms sounds pretty egotistical to me.

  • This is one of the dangers of getting into the uncomfortable position of a single client supplying 50% of your jobs. It compromises your choices, because of the fear of loss, not just from this sort of thing. I had a client that I let get to 25% once a few years ago, and them he suddenly made poor choices, and ended up dead. That’s pretty irrecoverable, at least for him it was. The nice thing was that it created a vacuum, and all of that volume was instantly replaced by many more clients, all in the 1-2% range. When clients are in the low percentage range, you have more ability to stick to your terms without fear – if one ditches, you don’t even notice.

    My only issue with your terms is this line “All images used in social media must be credited to XYZ Photography.” I don’t feel it’s in your client’s interest to constantly have to promote YOUR business, and it’s counteractive to the purpose of their social media focus – which is to promote THEIR business. I let clients do it if they insist, but imagine being a realtor with dozens of support vendors who might all insist on credit… it could look like the end of a movie after awhile. 🙂

  • I like the length of your TOS, Polina. I think it’s short and to the point. Many realtors worth having as clients likely will not read something much longer.

    BUT, I echo Ty in making the TOS just as much about what you do for them as what the TOS does for you. You should spell out that the TOS protects them too, as in if they lose the listing the next realtor can’t just up and take photos your client already paid to license. If your photos are infringed (outside the realtor’s control in most cases unless the realtor tries to resell them or give them away), the client knows you’ll take care of it and they won’t have to deal with the MLS. The TOS means you’re looking out for them, too.

    I think your wording is fair as well, but you could do without the last bit talking about the termination of the contract. It makes it seem to some as though something that’s likely entirely out of the client’s control will end up with them losing the license to the images. That isn’t the case more than likely, but the wording is ambiguous enough that someone may read it that way, so I’d say that willful unauthorized use will result in termination of the contract. I might even go so far as to say you can cut out all of that and still be good, because mention of copyright and your retaining sole ownership of such probably gets the point across; besides, I’d like to think you would at least call your client(s) and speak with them to determine what really happened if infringement occurs, instead of terminating the contract summarily without hearing their side of the story. They may have had nothing to do with it, or they may have made a mistake, as people are wont to do–especially when they are not by any means as well-versed in US Copyright law as we are.

    Agents contact us for a service. This service we provide, like any other agents use, is to make their lives easier in marketing listings as much as it is to give them great photos. We give the best customer service we can, provide quick turnaround, and generally should be easy to deal with. Some clients are not easy to deal with in return, but when people voice things like your client has voiced, there’s often a hidden objection there which they may not even be able to put their finger on, and so sometimes in talking with them, they are coming to realize exactly what those objections are around the same time you learn them too. Sometimes they may not know exactly how to say what they mean. Not to get too deep in the nitty-gritty here, but you have to use your judgment here to determine whether this client is worth scrapping your TOS just to keep them. A one-off client? Nah. Someone’s probably looking for a deal. But a 50% client? What incentive does he have to keep referring business your way? If he’s pointing at your TOS, it may be that’s the problem, or it may be the low-hanging fruit he’s using because he has an objection he doesn’t know how to voice. So, offer up a volume discount or some similar incentive that makes him want to keep giving you business, because I feel like what he’s essentially saying is that you’re not treating him like a client that gives you a lot of business (he shouldn’t know he’s 50% of your business, and you shouldn’t ever tell him). When I get referrals, I give the referring agent $50 off their next shoot. My best client gets a 20% discount on all shoots. Do what works for you, but if you just now wrote a TOS and sent it to him without an explanation, he may even feel insulted as though you’re only now doing this because you don’t trust him. I hope you sent it to him an explained what you’re doing and why, but now you need to explain to him how this helps you both.

  • 50% of your business comes from ONE client???? That’s what would worry me the most.

  • Maybe be a little more liberal with this guy. He is the owner of an agency supplying you with 50% of your business. Owners/brokers are more controlling when it comes to calling the shots. They have a lot on their minds so I wouldn’t mess around with this as long as you’re getting paid, don’t try to shake things up. Just be glad you have the business! (We haven’t had a shoot in two months so you’re better off than us.)

  • I certainly agree with Larry’s advice. However, I would take this a bit further. I do not believe that a single client representing 50% of your business is a good thing long term.
    It tends to make you too desperate to keep their business and it might take a long time to replace that business if you loose this client. I am not saying be unreasonable with
    this client, or unwilling to make reasonable adjustments. I just urge caution about giving in too much to any demands and to be prepared to hustle to make up for lost business
    if this client should balk and cease to work with you.

  • I find the terms to be unreasonable and unworkable.

    Stating they have to have you edit the photos is unreasonable and prevents them from creating ads. Demand credit for all uses adds additional unreasonable burdens to the use of the photos.

    To be honest, you put so many things in there to “protect” yourself that the photos are almost unusable. So what are you trying to protect yourself from anyway, the one in a hundred home that isn’t sold within a year?

    Drop everything except the portion dealing with stagers and the like.

  • I think Neal’s advice is terrible and would avoid any thoughts of making changes to your terms until you have discussed with the client and gotten their input.
    The next consideration is whether you have ever gotten any resistance to your terms from other clients or potential clients. The terms are not
    out of line in broader world of commercial photography. Also, bear in mind that the usage terms are in relation to the fees you charge. Broader usage
    terms will indicate a higher fee. And I disagree that the terms make the photos “almost unusable”.

    I would note that the conditions about photo credit for photos used for marketing usage is unusual. Of course you can ask for a credit, and maybe give a little break
    on your fee for it if you really need to, but I would not make that a sticking point. I provide a photos watermarked with my copyright notice for social media usage
    so the client does not have to remember to provide a credit. As far as modification of the photos, that doesn’t bother me for marketing usage (but would for architectural
    and interior design clients), although I specify in my terms that no modification of the images will constitute a joint or derivative works.

    By the way, even if you don’t want to allow most editing of the photos, it is common to allow cropping and overall (global) adjustments of color, brightness and contrast for printing purposes,
    since this will be needed for creating layouts and for any adjustments the printer might need to do in order suit their printing process and materials. If you do not provide for this at least, I could
    see how that would severely limit usability, but other than that….

  • I put a footer at the bottom of each invoice that stipulates that Best View Photography LLC retains the copyright of all images and may only be used for business purposes only to promote the stated property and the client. I also insert the copyright protection, all rights reserved.

    This seems to work fine, and I’ve never had an issue with this (10 years). If a realtor asks me about this, (which has been extremely rare) I also explain that it protects them as well, making it easier for me to go after any realtor who tries to use the photos (ie. In the case the realtor loses the listing), which I’ve had to do.

  • Malia hit the nail on the head.

    That and I wonder why you are just now getting feedback from the client.

    While I do not think your T&C’s are way out of line, I do find some to be more than they are worth to fight for.
    The bottom line though is the way they are stated. I think your terms could be stated in a more positive way and with half the wording. Don’t go into what they can’t do, just what they can do

  • Guys, you are the best!
    Thank you Larry and all for providing such a detailed feedback on my issue!
    I have gotten a lot of valuable information from all of you and it certainly will help me make necessary adjustments to my business.

    I understand that my initial statement may be didn’t have all the necessary information so I would like to add a few points:
    1. 50% of my business doesn’t come directly from this guy. He is a co-owner of a small agency, that sends ALL their realtors my way – that’s what makes up a big chunk of my shoots, not his listings directly. His partner, a very nice guy on the other hand, is the one who started working with me first a few years back and uses my services very often.
    2. This agency was my third client when I started doing it as a small gig and of course back then I didn’t have any system in place. Only recently I’ve started implementing TOC and Licensing. Probably this is the reason this guy is so reluctant – all these years there was no activity on my part.
    3. I think the biggest mistake on my part was starting implementing these rules without giving clients a warning and sending out an email like big companies do when they make changes to their TOC.

    I’m already making progress on changing my release much shorter and understandable. Thanks to you all I can see where I can make changes and improve. Learning from my mistakes is the most important thing for evolving!

    THANK YOU ALL and especially LARRY!

  • 20 years in business without asking anyone to sign a terms of service has worked for me. People have a basic concept that we own the copyright on all images. If they want to use my images their entire career without giving me credit it is OK with me. Why go though life worrying about one image slipping through your fingers is beyond my comprehension. You will be taking 100s of 1000s images and you will never remember all of them. Some you will wish you could forget as you become better as the years pass by.

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