Wedding photography disaster- protect yourself

This story about a wedding photographer in England who was sued for providing “shoddy” photography holds a few lessons, for both photographers and brides to be. For brides, do your homework and get a decent, and professional photographer. These photos, and the video as well, make me wonder if the couple looked at any examples of the photographer’s work before they hired him. Was this just a bad day? I can’t imagine.

For photographers, the lesson is that an important element of your contract is a determination of what happens if something goes wrong.  Disasters happen. Car accidents and family emergencies happen. Even good equipment, on rare occasion, fails. My contract, regardless of the client, has a limitation of liability that says if something does go wrong, my liability is only the amount paid to me. I guarantee my work, but I am not willing to foot the bill for a second wedding if someone doesn’t like my style. To have such a guarantee would force me to raise my prices significantly.

This is important, not because I expect my client to be unhappy- on the contrary, I have very happy clients. But photography is subjective. For example, the judge in the above article found that the photography was bad based in part on the fact that some heads were cut off, and some horizons were crooked. Some photos were out of focus. From a stylistic perspective, you might have award-winning images with heads cut off, crooked horizons and soft focus.

This brings up another point. I don’t know whether the photographer in the above case gave all his images to the bride, or only a selection, but as a rule, I ALWAYS provided only an edited selection. I learned the hard way to never provide my entire take to someone who is not a photography professional. Doing so is an invitation to be judged by your outtakes, which by definition, stink.

You could certainly take my worst outtakes from any event I have photographed, haul me before a judge, and get a judgment that I am a bad photographer. But that will never happen, because my job is not to make every frame I shoot perfect. My job is to to provide a selection of wonderful, unique images. That is what the client wants, and that is what the client gets.

Bankrupt Tribune Co. paying freelancers and stringers

Despite its bankruptcy filing on Dec. 8, 2008, Tribune Company appears to be paying freelancers and stringers for work done during the bankruptcy period (before Dec. 8). A memo on the Tribune bankruptcy website states that payments should arrive in mid-January. Some payments have already gone through.

In a memo on it’s bankruptcy website, Tribune wrote,

“After a careful review of the outstanding invoices submitted by the freelancers/stringers at Tribune’s business units, the company has determined that it will be possible to begin paying these individuals for work done prior to Dec. 8, 2008.”

According to the memo, payments have a statutory limit of $10,950 per individual.

Work completed on or after December 8, 2008, is not affected by the bankruptcy filing and should be paid as normal, according to Tribune.

We have confirmed that some pre-petition invoices have already been paid.

Photographers with questions should check with the publication with which they have done the work for. Those who still have not been paid by the end of the month should file a Proof of Claim Form, available at this link:
http://chapter11.epiqsystems.com/documents.aspx?pk=7d2b7379-c031-4bdd-b0b1-9977bd9b8091

A creditors meeting is being held on January 16, 2009 at 10:00 a.m., at J. Caleb Boggs Federal Building, 844 King Street, Room 5209, Wilmington, Delaware 19801

More information on the Tribune bankruptcy, including the memo about freelancers can be found at:

http://chapter11.epiqsystems.com/tribune

Bankruptcy and Copyright

Seeing as how one of my clients has filed for bankruptcy, I plan to be researching the issue of bankruptcy more and more.

It is a dense issue. Here is something I have found

Although the bankrupt company’s assets can be re-distributed, intellectual property is different in that the IP rights cannot be assigned to another party unless the IP owner has consented, according to In The Red business bankruptcy blog, (to make the information in this link more understandable, replace the word licensor with photographer and licensee with client/newspaper/magazine):

Also, this discussion on Patry Copyright blog about bankruptcy and patent. (be sure to read the follow-up comments)

Definitely this is complicated. My guess is that this will develop more over the next few years.

As an aside, I think this means we need to watch out for terms in our contracts that would allow IP rights to be assigned to a third party in bankruptcy.

Deconstructing a Bad Contract

After taking two semester of Contract Law in law school, I feel much more confident negotiating contracts with publishers and other clients. But perhaps you don’t have that kind of time.

Luckily for you, ASMP has a great new feature it just added. It is basically a look at a really bad contract, an explanation of what the legalese really means, and suggestions for alternatives.

Be sure to wave your cursor over the highlighted areas, to take advantage of the pop-ups.

Some confusing terms that are explained: royalty-free, in perpetuity, sublicensable, pre-agreement, exclusivity, liability, indemnification, embargo.

This is a great educational tool for photographers. I highly recommend taking a look at it.

Learning what these clauses means helps you to recognize them and make good decisions about whether you can live with them. Furthermore, having alternative suggestions for your clients eases the negotiation process.

Just don’t get too depressed. ;o)

DRR … steps to take now.

If you are a member of Digital Railroad, you are probably scrambling to deal with their shut down.

Photographers rushed to get their images before the shut-down. But what about the money you have spent in advance (say you paid 12 months in advance to secure a discount)?

Eleven out of 12 account members who pay annually (perhaps it is really 364 out of 365), have paid for a service that they will not be getting.

It is time to consider what rights you have here.

This situation frankly leaves me with more questions than answers as I don’t know much about liquidating a company, but I see some answers in contract law concepts. Most of this discussion is academic, since if they are truly broke, you don’t have much hope of getting the money back.

I see a few options:

• First, you can ask for a refund. Maybe you will get one. You will probably have to go through these people: Digital Railroad, Inc, c/o Diablo Management Group, 1452 N. Vasco Road, #301, Livermore, CA 94551 (I would do this sooner rather than later- they will run out of money eventually)

• You can try suing for your money back. Now is the time to contact your attorney to get advice on if you might have a chance at getting some of your money back. Certainly, the creditors will be beating down their doors, and if this ends in bankruptcy, you will be at the end of a very long line (if you have any rights at all). On the flip side, if they have been bought by another company, that company might have responsibility to pay DRR debts (your attorney should know). You will have to sue in New York Court.

• If you signed up within the last month, you might want to call your bank or credit card company and ask them if it is possible to refute the charge. Tell them that DRR has stated that they will not be providing the service that you bought.

Finally, since the website went down, so did your ability to access those terms and conditions that will guide a court in determining if you get your money back. Hopefully you kept a copy for yourself when you signed up. If you didn’t, email me. I copied the Terms and Conditions from today and will send you what I have. They were updated in August.

A couple of things that are important elements of the current terms and conditions:

• under the agreement, the law of New York apply, and any suits must be filed in New York. Lucky if you live in NY. Not so lucky if you live in Hawaii. Not so lucky either for the management company that is based in California.
• Under the agreement, their liability is limited to the amount of money that you have paid to them. (don’t try to charge them your day rate for the trouble of downloading your archive)
• Don’t expect to get anything at all from a company who has no money (although we don’t really know if they are completely broke or not)

Final notes:

• You should sign up with another service provider and migrate your workflow as quickly as possible. You don’t want the failure of DRR to cost you business.
• You should evaluate all of your other business relationships. For any vendor that you have, for any business that you rely on- ask yourself where you would be if they went under. This includes your website provider, your email system, your print fulfillment service, even your cell phone company… every service that is critical to your connection with customers. You should have a back-up plan for each of these. The economy is bad, and DRR is just one of many companies that will fail.
• For that matter, look at your client base. If your main client goes out of business, where will you turn to pick up new business. Have a plan.

Reminder. This should not be considered legal advice. For that you should consult an attorney, not a blog. As a law student, I don’t have experience or expertise in bankruptcy law, and do not practice law. This blog merely raises issues and discusses them from the perspective of the author.

New law about e-waste (okay new word too)

I am not sure I have ever heard the word “e-waste” before. It conjurs up visions in my mind of what Rosie, the robot maid on the Jetson’s might expel, or perhaps, all of the outtakes from my various photo shoots. You know, the accidental shots of the floor, that might qualify as “art” in some circles.

We all knew that when we went digital, we were improving the environment. No chemicals, no film made of gelatin (which is made from cows). But it turns out we still have an environmental challenge. When your computer becomes out of date every 3 years, what to do with the old ones?

A law went into effect today in Texas that requires computer manufacturers to accept and recycle old computers that are of their own brand. “The law requires manufacturers offering to sell new computer equipment in or into Texas to provide a program for collecting and recycling of consumers’ used computer equipment.”

A quick look to Apple shows that they will accept any brand for recycling IF you buy a new Mac. But their website doesn’t mention anything about accepting old Apples.

According to the Texas law, they will have to adapt their policy and begin accepting old Macs (in Texas).

More specifically,

• Manufacturers are only required to collect and recycle computer equipment purchased by individuals primarily for personal or home-business use.
• Manufacturers are only required to collect and recycle their own brands of computer equipment, not brands owned by other manufacturers.

Aaah, so for the lawyer in all of us, what “is” a computer?

According to the laws, it includes:

• a monitor,
• a desktop computer or laptop, and
• an accompanying keyboard and mouse made by the same manufacturer.

Noticeably absent- cameras and all the computer chips in them.

Also, don’t forget to wipe your computer clean- I mean really clean. A famous basketball player that I photographed told me a story about how he traded in his old computer, and someone called him with the news that all of his personal data was still on the used computer that they bought. Nice that they were honest. I don’t expect all people will be so lucky.

Happy Recycling.

Contract basics- Damages

When a contract is breached, there are consequences, generally called damages.

How you write your contract can greatly affect how those consequences affect you. But first, you need to understand the types of damages.

A court will generally take one of three approaches to a breach of contract case, all aimed at providing relief for the non-breaching party (the person who did not break their promise).

1. Expectation Damages- to put the non-breaching party in the position it would be if the other party had fulfilled it’s obligation.
2. Reliance Damages- to put the non-breaching party in the position it was in if the contract had never been made- generally reimburses costs from relying on the fact that the contract was in place.
3. Restitution Damages- restores to the party, benefits conferred on the other.

Applied to photography contracts, this might look like the following:

If a photographer provides photos and the client doesn’t pay:

• Expectation damages would be the money the photographer expected to earn (easy enough).
• Reliance damages would be the money the photographer spent on expenses to take the photo (probably not a good choice in this scenario).
• Restitution damages would be the return of the photos (but if they are already published, this is also not a good option)

If a client hires a photographer and the photographer doesn’t follow through:

• Expectation damages might include the cost of hiring another photographer to do the work. If Photographer 1 who breached the contract, was replaced by a more expensive photographer, Photog 1 wouldn’t be liable for the entire cost of Photographer 2, but rather the difference in the cost between the two. Occasionally, on the People’s Court, a wily bride will try to claim expectation damages that includes the entire cost of restaging the wedding because she doesn’t like the photos. That is usually not allowed (but would fall under expectation damages).
• Reliance damages. If a shoot was canceled because of the photographers breach, reliance damages might include any costs related to setting up of the shoot that couldn’t be recovered, such as location fees, talent, travel of the art director, you name it. In an advertising shoot, this could really add up.
• Restitution damages would simply be the amount paid, including expenses and other benefits, to the photographer until the cancellation.

This is an overview, so there are other factors involved. For example, the non-breaching party would have to attempt to mitigate the damages before getting anything. This is called mitigation of damages. In addition, terms that you write into your contract can limit the damages available. This is called remedy limitations (or if it is a specific amount, liquidated damages). But such limitations have to be reasonable.

I have never had to cancel a photo shoot or had a client reject my work. But things happen, accidents happen, people get sick. And photography is subjective. One clients’s “great job” might be another client’s “this is horrible.”

So in order to prevent the possibility of high expectation or reliance damages, I have written a limitation of damages clause into my contract.

It says this:

“The liability of Photographer in relation to any assignment, in any event, shall be limited to the refund of total fee paid to her for the assignment in question.”

Keep in mind that a breach of contract, on either side, is never meant to be a windfall. In fact, courts specifically try to keep it from becoming that. So you can almost never get emotional damages or punitive damages for a breach of contract, unless it is accompanied by a tort like fraud or negligence. You can only get reimbursed for what you lost. Thus it is always best to settle your differences outside of court.

Contract basics- an exchange

While we are all subject to the laws of our city, state, and country, contracts are kind of like laws that two or more people have agreed to create to govern their relationship. You only have to follow the rules if you choose to enter the contract, but then you are bound by law.

More specifically, a contract is an exchange of one or more promises. So it is a promise, but it is also an exchange. For example, a photographer promises to take a photo and let a client use it, and in exchange, the client promises to pay the photographer a certain price.

Seems obvious, but it does have implications. If there is no exchange, there is no contract. If the promise was not voluntary there is no contract (this gets you off the hook if a gun is held to your head, but doesn’t cover the mere fact that the other party has the upper hand).

A contract also has to have something called consideration, an important term. Consideration is that thing that you are exchanging. Both people have to have traded something for a contract to be in place. Otherwise it is a gift. So if client agrees to pay and photographer agrees to shoot, that is an exchange. If photographer agrees to shoot for free (or client wants to give away some money), there is no contract. A one-sided promise can’t be enforced. The benefit of agreeing to shoot for free, is that if you change your mind, you haven’t really broken a contract (there are some exceptions, but that is for another day). They can’t make you shoot for free. Oh yippee!

This also has implications because consideration has to be something that you weren’t already obligated to do. For example, if you promise to abstain from drinking until you are 21, in exchange for college tuition, you might not actually have an enforceable contract. You already had a legal obligation to abstain from drinking until you are 21. So you have not really given anything up.

What do you mean, “one or more promises?”

A contract can still only consist of one promise because sometimes a contract is accepted at the same time it is created. More on offer and acceptance later, but basically if I offer to pay you if you walk my dog, and you walk my dog, you are accepting my offer (and putting the contract into play) at the same time that you are performing your side of the bargain

So imagine this scenario:

• You (a photographer) get a call for a last minute assignment.
• You say you aren’t sure, but you will try to make it.
• Client says: okay, well if you can go great, if not, fine.
• You haven’t made a contract yet. If you don’t go, you have not broken the contract.
• But if you go, you have done two things. You have made a contract and you have performed your part

Let me know if this is interesting, or if I should stick to the Floo Powder posts.