Wielding Legal Rights Without a Written Contract
Even when photographers don’t have a legal contract with their clients, there may still be some legal rights and protections. If a person hires a photographer, agrees to pay that photographer, and the photographer shows up and takes the photographs, then a deal was made; consideration changed hands between the two parties.
Just because a particular deal wasn’t written down in an enforceable contract, that doesn’t mean that it’s not legally binding. If the photographer has agreed to take photographs for an agreed upon fee, then a binding contract may exist even if the photographer never takes a photograph. When the photographer takes the photograph, that would be performance of the contract. If the photographer takes a photograph, then gives the photograph to the client, that may be the exchange of consideration under the contract.
But what if the photographer takes the photographs, then refuses to turn them over to the client? In many cases, this means that the photographer must return the payment, either in cash or by giving the client the photograph . If that does not happen, the contract would have been breached. In that case, the photographer would be legally liable to the client.
Interestingly, while it is always better to have a written contract, the lack of a written agreement does not bar an implied contract. Many courts will uphold implied contracts as being legally binding.
Keep in mind that it is often in the best interest of the photographer to have a written contract. This can help avoid issues in the first place. A contract can help determine how the photographs may be used, whether the photographer can use the photographs on his or her website or in marketing materials, and other issues as well.
But especially in the world of freelance photography where there may be no formal written contract, that does not mean that there is no contract. A client may have legal recourse against a photographer that refused to turn over photographs after being paid, even if the agreement was not reduced to a written contract.
Typical Legal Reasons to Pursue a Suit Against Your Photographer
Although it’s quite uncommon, there are several different reasons why those who have worked with a professional photographer may find their way into an actual courtroom at some point in the future. They include: 1) breach of trust – this is the most common reason, as it can vary to a great degree, from having a photographer not deliver on promises made regarding photo alterations or a certain number of takes, to losing, damaging or otherwise ruining the couple’s photos entirely, and 2) breach of contract – which can be valid even in the absence of a contract, as consumers are entitled to protection against fraud, misrepresentation, conspiracy and unfair business practices.
Three other reasons are occasionally cited, albeit in relatively rare instances, when it comes to grounds for legal action against a photographer. They are: 1) copyright infringement – this may include the unauthorized use of a client’s photos by the photographer on their website or in promotional materials, 2) misrepresentation – whether verbal or written, made by the photographer about his or her scope of expertise, experience, services offered or skill set, or 3) defamation – which has been cited by some couples who claim that a photographer tarnished his or her reputation by speaking maliciously about them in connection with services rendered or that he or she has a penchant for being a latecomer when it comes to deliveries.
Suing a Reluctant Photographer in Small Claims Court
You might be able to sue a photographer in small claims court, even if the amount you’re suing for is more than the small claims limit in your state. (Hint: the rules are different when you’re suing a business.) However, suing a photographer in small claims court does require some effort and documentation on your part.
Consult Your State’s Small Claims Court Website
You’ll want to familiarize yourself with your state’s small claims court website, so you know exactly how to introduce new evidence and a complaint into the court. In many states, you can sue someone else if your claim is related to doing business there—not just if the other person lives there.
Gather Evidence Supporting Your Claim
Then, you’ll need to do the following:
If the photographer has a contract, you can bring that into court to prove that you completed your portion of the contract. If there was an oral contract, and you have any emails or other communications that prove that the agreement existed, you’ll want to bring these in as well.
You’ll want to bring in your own photographs and documents to prove that the photographs the photographer provided weren’t what you agreed to. For example, if the bride was expecting a set of color photographs and the photographer instead left her with sepia-toned ones, she could present a brief showing how the photos were different from the ones agreed to.
If the photographer referred someone to you after doing business with the two of you together, for example, you could argue that the contract was enforceable.
If you were forced to pay for a photo album out of pocket, for example, you could argue that the photographer should reimburse you (or partially reimburse you).
In small claims court, the amount of money that you’re claiming should be the only number you provide the judge. You won’t prove anything except the amount you’re claiming. Some small claims courts, such as Maryland’s, won’t automatically review documents you present into the record. Others will. It’s just another reason to familiarize yourself with the rules in your state.
How to Collect Evidence and Records
Collection of Evidence and Documentation
Even though you may have hired a photographer without any contract to memorialize the event, you still need to perform due diligence and collect evidence and documentation you can use as the basis for your lawsuit:
Photoshoot related correspondence – this is any form of communication between you and the photographer. For example, e-mails, saved text messages, and direct messages on social media are all forms of communication that may be used as evidence that you had a working relationship with the photographer. For example, if the photographer sent you an email requesting that you select locations for the photoshoot and time/dates for the shoot, you would have evidence of the provisions of the verbal or implied contract.
Receipts from the photoshoot – these may include receipts or invoices from the photographer for the photography services and documentation that you paid for such services. Payment of a photographer can be made in various ways, including credit card payments, cash and bank transfers. The type of payment you used will determine if the payment can be considered part of the contract. For example, if you paid the photographer in cash and there is no documentation of the payment, its possible the court might find it difficult to believe a verbal contract existed.
Witness statements- you may have had friends and/or family members present on the day of the photoshoot. These people can provide statements regarding their observations of the photoshoot and whether the photographer fulfilled his or her contractual obligations. Instead of relying solely on your own statements, you can strengthen your case by using statements from other persons.
What to Consider Before You File a Suit
Independent of whether suing will be successful, before you hire an attorney, you need to consider the cost and the time involved on your end. For example, there will be the time spent with the attorney preparing for the lawsuit and testifying at the trial. It can take many months after the hiring of the attorney before the trial is held. You need to determine whether the expense and time away from work and home justify bringing the lawsuit. The amount of the loss will also affect your decision. If the loss is very small, the time and money involved in bringing the lawsuit may not be justified. For example, if the photographer will not give you the images and you do not want to go through a long process to get them (or you find that even once you get the images you may not actually want them), it may be best to cut your losses and consider the matter closed. In addition, many photographers are individuals . Perhaps they made a mistake but did not intend to bad mouth you, or if you were upset with them, perhaps it was for a different reason (like an ugly divorce). Do you want to be known as the person who sued the local, business-person you just had a disagreement with? No one wants to feel in the community as if they are a bully.
There are other options available besides suing, including, but not limited to, filing an ethics complaint against the photographer with their local professional association or the Better Business Bureau and giving them an unfavorable review on various consumer review sites. Mediating can also be an option. While some contracts have a mandatory arbitration clause, not all do. Arbitration is usually faster than suing, although arbitrators are not always sympathetic to the consumer plaintiff. Mediating and arbitrating may be positive options if you want to avoid adding scarlet letters to the photographer’s reputation in the community.
Options Beyond Selling the Wedding Photos
While suing a photographer after an event without a contract may seem like the only way to address any negative outcomes of using the services, legal action is not the only option. If you are having trouble obtaining copies of your photos or your photos came out poorly, consider first reaching out to the photographer directly to determine if the problem can be resolved initially without lawsuits or additional outside assistance. If direct communication with the photographer does not resolve the issue, you may wish to consider filing a complaint with a state or national photographers’ association. State and national associations can review the complaint and determine whether further action is warranted. Some associations have mediation and arbitration services to help work out disagreements between photographers and clients. Additionally, if the photographer is a member of a professional association, such as Wedding & Portrait Photographers International, the organization may provide conflict resolution services. You should also post reviews about the company on websites such as Yelp or Google Reviews to inform others about your experience in using the company. Most individuals will avoid using a photographer that has a bad reputation and reviews. Another option you may have is reaching out to an ombudsman service in your area. For example, the County of Los Angeles Offers an ombudsman service through the Department of Consumer Affairs. The California Department of Consumer Affairs also has an Ombuds Services program for MediCal recipients. Depending on where you live, such services may help you pursue the matter further. Finally, you may also wish to hire a mediator to assist you in resolving the conflict. Professional mediation services can help both sides come to an agreement in a peaceful manner without the need for litigation. Mediators are neutral and do not act for either party in the matter. Instead, they listen to both parties and help both parties come to a solution that meets their needs. Depending on the situation, the mediator may or may not produce a written document that indicates the final solution of the problem.
Tips to Prevent Issues with Future Contracts
In addition to the important clauses discussed above, it is advisable to include the following in contracts with photographers:
Limitation of liability – a statement that the photographer will not be liable for any consequential or incidental damages for any delay in performance of contractual obligations for reasons beyond his control.
Authority to photograph – we recommend that photographers obtain consent from the parents or legal representatives of every individual who might appear in graphic representation. This should include that the consent – or, the absence of it – will not be relevant to compensation claims.
Limitations on abortion of photo session – if the photo session is aborted for any reason, including the client’s fault, or if the photographer left during the session due to client’s fault, the client shall be responsible for all engagement fees as stated in the contract .
References – the contract can provide that the photographer shall enjoy the right to use pictures of the client for self-promotion and advertising purposes, for example, on the photographer’s website or photo blog, as part of a portfolio, or at photo exhibitions.
Arbitration clause – the contract can establish compulsory arbitration in case of disputes. Even if a claim will be filed in court, upon the photographer’s request, the court will usually transfer it to an arbitration body.
Master copies – the contract may include a provision that notes that while the photographer may provide the statute with the photographic works, he shall also keep the master copies, i.e., the original photographic works, for a period of time (usually 7-14 years).