The Case for Binding Contracts

Used under a Creative Commons Licence

The Case for Binding Contracts

This is an updated version of an old post, click here to see the original.

When Clients Love Your Work but Not Your Invoice

When a client uses your work but refuses to pay, it can feel infuriating and unfair – and legally, it’s more complicated than simply “they stole my photos”.

A real Federal Court case involving photographer North Sullivan and a resort owner shows how these disputes play out: there was a written contract, the client claimed to be unhappy with the images, but still used them in brochures and advertising while withholding the balance of the fee, and the court ultimately treated that behaviour as copyright infringement and awarded both the unpaid amount and extra damages.

What the law says – Smile for the Camera, Pay for the Photo

In Australia, the starting point is that commercial photographers generally own copyright in their images unless they assign it in writing, and clients only get whatever licence the contract (or circumstances) support.

Where there is a clear written agreement saying that the licence only arises on full payment, a client who uses the images before paying may be infringing copyright, and a court can award both ordinary damages (such as the unpaid fee) and additional damages if the conduct is “flagrant” – for example, continuing to use the images after being warned.

If there’s no written contract, things are much greyer: courts can sometimes imply a licence based on what was said and done, and disputes can turn into a “who said what” contest about the scope of that implied permission, which may or may not favour the photographer.

Why it’s not black and white

Even with strong legal principles, these disputes are rarely clean‑cut: a client might genuinely think the work is below standard, a court might find some implied right to use the work, or the way the work is being used might be broader (or narrower) than what you expected when you took the job.

​The same facts can lead to different outcomes depending on the contract language, any emails or proposals, the way the images are used, and whether the client keeps using them after being clearly put on notice that they have no right to do so.

That’s why relying on “common sense” or informal arrangements is risky – the law looks at detail, and those details change from case to case.

​

Why getting legal advice early matters

If a client has your work and isn’t paying, speaking to a lawyer early can help you: understand whether the client’s use is likely to be authorised or infringing, work out whether you can suspend or revoke the licence, and frame letters or negotiations in a way that sets you up for a better outcome if things escalate.

A lawyer can also help you re‑draft your standard contracts so that they clearly link usage rights to payment, spell out what happens if the client doesn’t pay, and reduce the chance you’ll end up in a “grey zone” dispute next time.

​The photographer in the Federal Court case had the benefit of a written contract and targeted legal action; that combination helped him recover the unpaid balance and secure additional damages, and it’s a good model for how to approach similar problems.

How we can assist

If you’re facing a situation where your work is out there but your invoice isn’t paid, we can: review your contracts and correspondence, explain your options (from commercial negotiation through to formal legal steps), and help you decide whether to push for payment, stop use of the work, or both.

We can also help you develop stronger, practical terms for future jobs so that clients know exactly when they can use your work, what they can do with it, and what happens if they don’t hold up their end of the bargain.

Getting tailored advice early can often resolve the dispute faster, avoid unnecessary cost and stress, and put you in a better position if the matter ever needs to go further.

A decent contract means that when a client “forgets” to pay but mysteriously remembers to keep using your images, you’re not left waving your camera at them from the sidelines.

If you’ve read this far and can feel a few soft spots in your own paperwork, that’s not a moral failing – it’s an invitation.

Tightening your terms, sanity‑checking your licences and getting advice before a dispute blows up is far less painful than watching your work travel the world while your invoice gathers dust. And if you’re already in a North‑style situation, take heart: with the right words on the page and the right help in your corner, “they loved the photos but not the bill” doesn’t have to be where the story ends.

Want to see some pf the photos in Question?

his article explains how photographer North Sullivan’s Federal Court win shows the power of a clear written contract when a client uses images without paying, including how the court awarded both the unpaid fee and extra damages for “flagrant” copyright infringement. Read more and see some of the actual photos from the case here:
https://sharon.trilogywebsolutions.net/articles/ProPhoto-ArtContracts%20.pdf

Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.