Now, Mr. Remis has about as much chance of collecting $48K as I have of being elected the next Pope (highly unlikely, since I'm not even Catholic), but it shows that once you take payment for services, you place yourself in jeopardy. So now you know--the title was a shameless hook to grab your attention...so sue me! And actually, that's the topic of this week's discussion: protecting yourself and your property from legal action and other perils.
DISCLAIMER: I am not an attorney. I never even played one on TV. I am not giving you legal advice. Understand that laws are fluid and dynamic--they change with the times. Also be aware that the law in Minnesota may not be exactly the same in Mississippi. Before writing your own contract, or using someone else's, you are urged to have it reviewed by an attorney specializing in contract law. Your failure to heed this warning is your own damn fault, and not mine.
All right, back to business. When taking portraits, most photographers take the position that you do not need a contract to protect yourself. If the portrait gets goofed up, you can take additional portrait studies, right? Well, maybe not. What if the entire family came from all over the country, plus South America? What happens if your storage card bites it AFTER you had checked everything to make sure all was well? Now you have a little problem. My advice is to have a short release & limit of liability signed in these situations, that states you are not liable for mechanical failures, and your liability is limited to refund of any monies paid. On this same release, you can include your model release. On the BACK of the release, have places for several people to sign.
I rarely had anyone balk at this. If they did, I simply told them, "Oh, I understand your concern. I am going to put these on my web site for you to view and make your selections. This is required by my insurance company and my attorney in order to protect me from litigation caused by someone objecting down the road--which I know YOU would never do. I thank you for understanding." It got signed.
DISCLAIMER: I am not an attorney. I never even played one on TV. I am not giving you legal advice. Understand that laws are fluid and dynamic--they change with the times. Also be aware that the law in Minnesota may not be exactly the same in Mississippi. Before writing your own contract, or using someone else's, you are urged to have it reviewed by an attorney specializing in contract law. Your failure to heed this warning is your own damn fault, and not mine.
All right, back to business. When taking portraits, most photographers take the position that you do not need a contract to protect yourself. If the portrait gets goofed up, you can take additional portrait studies, right? Well, maybe not. What if the entire family came from all over the country, plus South America? What happens if your storage card bites it AFTER you had checked everything to make sure all was well? Now you have a little problem. My advice is to have a short release & limit of liability signed in these situations, that states you are not liable for mechanical failures, and your liability is limited to refund of any monies paid. On this same release, you can include your model release. On the BACK of the release, have places for several people to sign.
I rarely had anyone balk at this. If they did, I simply told them, "Oh, I understand your concern. I am going to put these on my web site for you to view and make your selections. This is required by my insurance company and my attorney in order to protect me from litigation caused by someone objecting down the road--which I know YOU would never do. I thank you for understanding." It got signed.
Now, I rarely had anyone unhappy. I photographed a LOT of weddings, and I had less than one really dissatisfied client every couple of years. Now, the reasons why they were dissatisfied were normally unreasonable--but that doesn't matter. If the person feels dissatisfied, you want to make them as happy as you can, keeping in mind that some people will NEVER be happy no matter what--it is simply their nature! I really feel these people are happiest when they have something to complain about. What did they complain about? Well, here's a short list:
- Great Grandmother from Scotland not photographed (I was never told about this person)
- Bride's grandparents not included in pre-wedding portraits--they did not arrive at the church until 10 minutes prior to the ceremony, instead of the required 60 minutes prior. By this time the groom has been instructed to go the the sacristy and the bride and her bridesmaids have been ushered to the back of the church by the officiant. I would have done the portraits after the ceremony...but they left!
- No photographs of bride or bride and groom posed using stained glass windows in the church, as my sample albums illustrated. Well, their church didn't HAVE any stained glass windows, but that was a minor detail to this bride.
- I did not take a photograph of the bride going down the aisle from the back of the church showing her train. Her dress did not HAVE a train, but again, minor detail that I was supposed to take care of.
- Bride's parents both wore glasses, and they were thick--bride complained about distortion of facial features caused by severe prescription of lenses.
Okay, they were unreasonable. But I did my best to fix the problem without complaining...well, without too much complaining, anyway J At the same time, don't be an unreasonable hard-ass about it. If someone complains:
Another place photographers get into trouble is to display images of people without a release. Now most states do not require a photographer to display images in his place of business. If you use them in a display at the mall, in a restaurant, in a direct mailer, in a print ad, or on the web, you better have their WRITTEN permission. I had a local assistant prosecutor once get quite upset when her family's image appeared in one of my newspaper ads. I told her that I had called her office and left a detailed message and if she did not want the image to run, please call me within 48 hours--no call ever came. You can find model releases on the internet that you can use.
She replied, "I have put a lot of people in jail, and they may want to take retribution on me! I am considering legal action." My response was, "Well, your family's picture appeared in your church directory, so you evidently were not concerned about it then. And I want to remind you that I do have a signed model release. And finally, I did call as a courtesy, but no call was returned. But this is America, and you are free to do whatever you want." And then I did not say another word. It was quiet for about a minute, then she said, "Well, could you please not run it again?" I replied, "Certainly," and that was the end. Now, she may have watched too many "convicted-felon-takes-revenge-on-lawyer" movies. In our small town, I don't think any prosecuting attorney has been harmed by someone they convicted. In actuality, this was a power play--she wanted me to know she had authority. But I had protected myself.
This is a perfect time to discuss INSURANCE. At the very least, you need liability insurance. If anyone is going to come onto your property, you are liable if they are injured. If you are at an event and someone trips over your camera bag, you are liable. Talk to your insurance agent. If you belong to the Professional Photographers of America, you can get coverage through the Indemnification Trust. For many photographers, it is worth the annual dues. Check it out. You can also get errors and omissions insurance as a member of ASMP, but check their restrictions. Hill & Usher have covered photographers' insurance needs for years. Their Package Choice for Media Professionals may be just what you are looking for. Finally, Brunswick Companies offer Errors and Omissions insurance for photographers.
You also want your auto insurance to cover you to and from assignments, and you want your equipment covered against theft and damage. Speak to your insurance agent to discuss your concerns and ask his advice.
Soon I will have forms and contracts available. If you want to be notified when these are available, drop me a note, and I'll let you know as soon as they are ready.
Over the coming weeks, I will publish a new post here every SUNDAY (unless I'm away or on vacation). You are bound to find something that interests you--if you don't, let me know what you want to see! I will take questions from readers and if they have broad appeal, I will make those questions a topic here. Maybe you have a topic you would like to write about--if so, let's talk! Do you have a photography site? Maybe we can trade links. You can always contact me. Tell your friends, your neighbors, or any other photography enthusiast you know to tune in. Til next time...
- Listen to the complaint without interrupting;
- Issue a statement of regret (I'm sorry you are not happy);
- Ask what you can do to make them happy.
Another place photographers get into trouble is to display images of people without a release. Now most states do not require a photographer to display images in his place of business. If you use them in a display at the mall, in a restaurant, in a direct mailer, in a print ad, or on the web, you better have their WRITTEN permission. I had a local assistant prosecutor once get quite upset when her family's image appeared in one of my newspaper ads. I told her that I had called her office and left a detailed message and if she did not want the image to run, please call me within 48 hours--no call ever came. You can find model releases on the internet that you can use.
She replied, "I have put a lot of people in jail, and they may want to take retribution on me! I am considering legal action." My response was, "Well, your family's picture appeared in your church directory, so you evidently were not concerned about it then. And I want to remind you that I do have a signed model release. And finally, I did call as a courtesy, but no call was returned. But this is America, and you are free to do whatever you want." And then I did not say another word. It was quiet for about a minute, then she said, "Well, could you please not run it again?" I replied, "Certainly," and that was the end. Now, she may have watched too many "convicted-felon-takes-revenge-on-lawyer" movies. In our small town, I don't think any prosecuting attorney has been harmed by someone they convicted. In actuality, this was a power play--she wanted me to know she had authority. But I had protected myself.
This is a perfect time to discuss INSURANCE. At the very least, you need liability insurance. If anyone is going to come onto your property, you are liable if they are injured. If you are at an event and someone trips over your camera bag, you are liable. Talk to your insurance agent. If you belong to the Professional Photographers of America, you can get coverage through the Indemnification Trust. For many photographers, it is worth the annual dues. Check it out. You can also get errors and omissions insurance as a member of ASMP, but check their restrictions. Hill & Usher have covered photographers' insurance needs for years. Their Package Choice for Media Professionals may be just what you are looking for. Finally, Brunswick Companies offer Errors and Omissions insurance for photographers.
You also want your auto insurance to cover you to and from assignments, and you want your equipment covered against theft and damage. Speak to your insurance agent to discuss your concerns and ask his advice.
Soon I will have forms and contracts available. If you want to be notified when these are available, drop me a note, and I'll let you know as soon as they are ready.
Over the coming weeks, I will publish a new post here every SUNDAY (unless I'm away or on vacation). You are bound to find something that interests you--if you don't, let me know what you want to see! I will take questions from readers and if they have broad appeal, I will make those questions a topic here. Maybe you have a topic you would like to write about--if so, let's talk! Do you have a photography site? Maybe we can trade links. You can always contact me. Tell your friends, your neighbors, or any other photography enthusiast you know to tune in. Til next time...
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