Studio Liability for Weddings

[egproductions]

A potential client challenged one of the clauses in my wedding/event contract recently. The contract says:

"my studio" takes the utmost care with respect to the production, postproduction and
delivery of the video(s) and/or photographs. However, in the event "studio" fails to comply with the terms
of this contract, due to any event or act outside the control of "my studio", "my studios" liability is limited
entirely to the initial reservation deposit paid.

From the clients perspective, if something like this happens they could potentially get partial or even none of the wedding photos/video and they would still have to pay me 2/3rds of the wedding (the deposit is 1/3rd)

From my perspective, I still have to pay my crew regardless and if I didn't I would be loosing a lot of money. I also would do what I could in terms of retakes etc.

I have a 4 drive raid 10 configuration and I take a lot of precautions so that this is very unlikely to happen regardless, however, you never know. My insurance coverage might actually protect me against certain things like computer failure but then again the birde could potentially purchase wedding insurance.

Insurance aside, is it unreasonable to expect the client to pay any money if they don't wind up with any footage or photos from the wedding?

 

[keylight]

Insurance aside, is it unreasonable to expect the client to pay any money if they don't wind up with any footage or photos from the wedding?

Absolutely, yes. They should owe you nothing. If you can't deliver anything then they should owe you nothing. They put their trust in you on what is one of the biggest days of a couple's life together.

If part of your crew didn't show up because they got a flat tire, would you still have to pay them? Maybe pay them 1/3? What if they show up 2 hours late? Do you pay them for the whole time, or just part?

If you can deliver a substantial part of what the contract calls for, then they should probably pay something, but a big discount might be in order.

Keep in mind that the clause may not do much to protect you. To borrow your example - a hard drive crash is something that I would argue IS within your control. You bought the HD, maintain the HD, backup the HD.... Before deleting your work from the memory cards, you should make multiple copies. I'd probably have a laptop setup somewhere so I could make a copy of memory cards as you drive from wedding to reception, then periodically at the reception (while you eat for example). It's your responsibility to make sure your equipment is in full working order.

On the other hand, if a guest knocks you over and your camera smashes to the floor damaging your memory card causing you to loose a whole bunch of shots or takes, you wouldn't have control over that. (But you should have a backup camera you can move to.)

 

[GrahamH]

If I was in need of a wedding photographer, and noticed that clause, it would make me ponder whether I could find an alternative photographer who didn't take that approach .... so from a marketing point of view, at least, there is likely a downside.

 

[egproductions]

I should note that this clause was repurposed from a standard videography wedding contract that was floating around online years ago (which I know doesn't mean anything in regards to it being the right approach).

I don't expect to hear a definitive yes or no on the subject, I want to hear what the general consensus is. I agree that they are trusting me with this important event but the question is if it's out of my control. I partially agree that a hard drive crash is within my control. meaning if was careless enough to only leave one copy on a single hard drive. But what if my entire raid fails or if it was stolen from my office. What if I got mugged on the way home and all my memory cards were stolen (there isn't any time at the events to start backing up cards with the type of weddings I do but regardless the hard drive I back up to could get stolen also).

My point is that regardless of the circumstances, if it is deemed that something happened that was totally out of my control. Should I be liable for everything? The wedding industry is a tricky one because it's a very emotionally driven service and clientele. This is why wedding photographers so often get sued in my opinion. I want to look at it from unclouded standpoint. This would truly be a hypothetical scenario that isn't in my control, not something I should be blamed for having happened (even though in the clients eyes, I would be blamed for it regardless.) Thats not to say I wouldn't feel terrible or try to make things right by doing retakes but speaking stickly about liability.

If I gave my car to a mechanic to replace the transmission. The work was completed but there was a hurricane and flood and the car got ruined, would I not have to still pay the mechanic for the work they did and the parts they purchased? Maybe not the best example because people tend to not like mechanics either =) Maybe try one more example...lets say a friend lent another friend their camera and it was legit stolen not due to their neglegence. I believe that short of a contract, the friend does not owe the owner anything. By putting this clause in my contract i'm simply outlining the terms and making them clear but If I wasn't negligible I believe I would have a case in court regardless of this clause in my contract. In fact the clause actually offers the client 1/3rd of the payment back.

Graham, I think your comment about marketing is a fair one which I ultimatly will have to consider (I added the first line to at least smooth the edges of the following lines of the clause for that reason)

 

[keylight]

For most examples you gave, it's why you need to carry insurance. Guy trips over one of your cables and breaks a leg? Insurance. Lost files from theft, crash, mugging.... Insurance.

Your car example. If you deliver your car to the garage for repair, they become at least partially liable for damage while it is in their possession. The concept is called bailment. http://en.wikipedia.org/wiki/Bailment

Lending your camera to a friend and it gets stolen? Your friend has the highest duty of care to prevent theft and would very likly owe you a new camera.

So.... what can you do? I'd suggest a clause that simply limits your liability for any breach or failure to deliver for whatever reason, to the money paid by the customer. Won't let you claim 1/3 for not delivering, but does give you some help should you get sued. Oh, and carry all the proper insurance. Finally, stop using a contract you found on the internet (or parts that you found on the internet) and get a good contract drawn up by a lawyer who knows the specific laws of your state. Contact law is different in every state, and while laws may be similar, there can be some differences that can be important.

Most states have some kind of resource that can help you locate an appropriate lawyer. For example in Texas, there is the Texas Accountants and Lawyers for the Arts.

But what if my entire raid fails or if it was stolen from my office. What if I got mugged on the way home and all my memory cards were stolen (there isn't any time at the events to start backing up cards with the type of weddings I do but regardless the hard drive I back up to could get stolen also).

My point is that regardless of the circumstances, if it is deemed that something happened that was totally out of my control. Should I be liable for everything? The wedding industry is a tricky one because it's a very emotionally driven service and clientele. This is why wedding photographers so often get sued in my opinion. I want to look at it from unclouded standpoint. This would truly be a hypothetical scenario that isn't in my control, not something I should be blamed for having happened (even though in the clients eyes, I would be blamed for it regardless.) Thats not to say I wouldn't feel terrible or try to make things right by doing retakes but speaking stickly about liability.

If I gave my car to a mechanic to replace the transmission. The work was completed but there was a hurricane and flood and the car got ruined, would I not have to still pay the mechanic for the work they did and the parts they purchased? Maybe not the best example because people tend to not like mechanics either =) Maybe try one more example...lets say a friend lent another friend their camera and it was legit stolen not due to their neglegence. I believe that short of a contract, the friend does not owe the owner anything. By putting this clause in my contract i'm simply outlining the terms and making them clear but If I wasn't negligible I believe I would have a case in court regardless of this clause in my contract. In fact the clause actually offers the client 1/3rd of the payment back.

Graham, I think your comment about marketing is a fair one which I ultimatly will have to consider (I added the first line to at least smooth the edges of the following lines of the clause for that reason)

 

[egproductions]

I appreciate the dialogue, it definitly helping me see through some issues (even if I don't end up agreeing with you 100%)

The contract was originally based on something on the internet but this was over 10 years ago. It's since been reviewed by lawyers.

If the friend is liable for the camera regardless of how much care they put into it not being stolen then there are no clear measures of precautions they should take since they will get blamed regardless, I'm not so sure they are in fact liable.

In my mind it comes down to something happened during or after the wedding that is truly nobodies fault so it shouldn't affect any previous agreements made. By saying I am liable for such occurrences I am essentially offering the client wedding insurance on their photos/video without having built it into my pricing. If I wasn't going to include this clause in my contract, I would ultimately have to get a real insurance policy for such incidents and ad the policy premium to my pricing or I could just up my pricing and create me own internal "policy" if this were to ever happen at least I've been making money from previous jobs to offset it.

It might not be a bad idea to actually get a policy, up my pricing and offer it as a feature to my client. Essentially turning a negative into a positive in their eyes.

 

[keylight]

You're on the right path in terms of getting a policy and building it into your pricing. I probably wouldn't feature or advertise the insurance to clients though, beyond a small note that you carry liability insurance. Think of it less as a feature and more as a regular business expense.

The hypothetical lending of your camera to a friend (free of charge) makes him liable for his negligence. Let's say you've shot 150,000 images with your camera, and while your friend is using it, the shutter stops working. He would not be liable for that. But if you've given him the camera with a camera strap, and he takes it off and later drops the camera in water, he would almost certainly be liable. The issue really comes down to what level of care he needs to give.

Bailment is a very well established principle in law, and like I said, the wikipedia entry has an okay overview:

• If both bailor and bailee are found to benefit from the relationship, such as sending a package, then the bailee is held to a standard of ordinary, or reasonable, care. (mutual-benefit bailment)

• If the bailment is to the primary benefit of the bailor, such as finding a lost wallet, the bailee must be found grossly negligent to be liable for damage done to the bailment.

• If the bailee primarily benefits, such as if you borrow your neighbor's rake to clean your lawn, the bailee must exercise highest care, i.e. is liable for any damages arising from slight negligence.

I believe that taking the camera strap off would be more than slight negligence. It could actually rise to gross negligence, which is a very high level of negligence.

Now imagine your friend is in Paris at a sidewalk cafe enjoying a drink with a friend. The camera isn't in the bag you lent him, but is just sitting there on the table.

Here's a visual:




Some guy comes along, grabs the $2500 camera (with a $1200 lens) and runs. They guy and camera vanish. Of course, your friend will offer to replace the camera and lens. But what if he doesn't?

Do you shrug and accept the loss? Or do you take him to small claims court? Under the bailment principle, your friend is supposed to exercise the highest level of care. To me, that means he was more than just slightly negligent for have just left the camera sitting there on the table like that. I don't think that's a very high hurdle.

 

[egproductions]

I would argue that in both your cases of the camera that the friend is negligible and the friend should be held liable. But what if a tornado hits the friends home where the camera was saftley secured and protected by the sloman shield. Here is the scene:

Is that friend liable for the camera? It is not anyones direct or even indirect fault that the camera was destoryed. He did what he was supposed to in terms of safegaurding it but maybe just the mere fact the camera was loaned to him means anything that happens to it under his possession is his responsibility. I don't think thats the case unless there was a contract signed or you can make a case for negligence.

 

[nothing]

..just the mere fact the camera was loaned to him means anything that happens to it under his possession is his responsibility.

This. Had it been in your possession then nothing would have happened to it.

Said hypothetical friend owes you a camera.

And a client that doesn't get any product delivered doesn't owe you anything, unless your contract specified that you are paid for your time, not your photos/video.

 

[egproductions]

I think I would concede if it can be shown to me that a judge would rule on the side of the owner when the friend (borrower) was also ruled to not have been negligible. Its true that it wouldn't have happened if the camera wasn't borrowed but that doesn't automatically make it the friends fault or responsibility. By accepting to borrow the camera they didn't automatically accept terms that even if something out of their control happens they are responsable for the camera. It's easy to be side with the owner when looking at it from his perspective, I had a camera, I lent a camera, I don't have a camera anymore. But I don't believe its as simple as that. From the perspective of the borrower, I borrowed a camera, I took perfect care of it (as good or better than the owner), and something happened to their camera that had nothing to do with me. The borrower didn't temporarily take ownership of the camera. The photographer didn't temporarily take ownership of the clients photos, it was always theirs and the photographer took the best care possible with them.

 

[nothing]

Intentions don't matter. Results do.

 

[keylight]

I think I would concede if it can be shown to me that a judge would rule on the side of the owner when the friend (borrower) was also ruled to not have been negligible.

I think you might be a bit confused. The judge/jury (A.K.A. the finder of fact) can't find in favor of both sides like that. Either the borrower was negligent or they weren't. If they were negligent, then the finder of fact can award damages.

So, if the finder of fact rules the friend NOT negligent, then there is no way to award you anything. You lost.

Its true that it wouldn't have happened if the camera wasn't borrowed but that doesn't automatically make it the friends fault or responsibility.

So what if it would have happened if it was in your control or not? That doesn't actually matter and is a straw man.

By accepting to borrow the camera they didn't automatically accept terms that even if something out of their control happens they are responsable for the camera.

There are NO terms here. This is NOT a contract. You need to not think of your lending a camera for free to a friend as a contract. It is a bailment. By taking possession of your property they automatically become responsible. Period. Full stop. Now, how much responsibility they have is up to the finder of fact. Could be very little, could be a lot. If they simply agreed to keep the camera for you, without receiving any benefit, then this is known as a naked bailment (a.k.a. gratuitous bailment). Their negligence would have to rise to the level of gross negligence for them to be held liable. So in the tornado example, if all they did was agree to store it for you, then they would not be negligent for putting it in their home next to their own equipment. But if they left it outside? That would be gross negligence.

But where you loan your camera to your friend and he's using it to take pictures on his vacation? He's getting a benefit from that and you aren't. That's a different kind of bailment, and he has a much higher standard of care (and a much lower level of negligence is needed to be found liable).


It's easy to be side with the owner when looking at it from his perspective, I had a camera, I lent a camera, I don't have a camera anymore. But I don't believe its as simple as that. From the perspective of the borrower, I borrowed a camera, I took perfect care of it (as good or better than the owner), and something happened to their camera that had nothing to do with me. The borrower didn't temporarily take ownership of the camera.[/QUOTE]

You're right. It isn't as simple as that. As I've said above, their are different levels of responsibility and standards of care, depending on the type of bailment. I mentioned naked/gratuitous bailment above, and the kind of bailment which is to the sole benefit of your friend. The third kind is when you both benefit from you loaning him the camera. For example, he was going to take photos that he knew he could sell, and agreed to give you a small percentage of the profits. In this case the standard of care is somewhere in the middle, along the lines of "reasonable" care.

The photographer didn't temporarily take ownership of the clients photos, it was always theirs and the photographer took the best care possible with them.

I'm not sure what you mean. Do you mean the photos always belonged to the photographer? Or they always belonged to the client?

If you meant the photographer owned the photos - which is an option if you write the contract correctly - then if the photos are lost, you can't be held liable by the client for loosing something that didn't belong to them. Then again, you aren't entitled to get paid if you don't deliver anything.

If you meant the client owned the photos, then you would be in possession of their property, which they have given to you for safe keeping. Guess what that is. Bailment. Because they are paying you to take and deliver the photos, you have a reasonable duty of care. So if your photos were only on the memory cards and you lost them, that would be unreasonable. If you were mugged, not your fault and no liability. If you had a mirrored raid array and all the drives went bad at the same time, it might be a toss up but I would say that you probably exercised reasonable care.

 

[egproductions]

ok, so you are in fact saying that if I was mugged and lost all the images then the client would still owe me the money because I did not willingly, or by neglegence, breach the contract. There's such a thing as impossibility of performance and I think getting mugged would fall under that in most judges eyes.

Not all contracts/agreements are written, some are inherent and borrowing equipment is one of them.

 

[egproductions]

Intentions don't matter. Results do.

I couldn't even see this line working in a courtroom drama. =)

 

[keylight]

ok, so you are in fact saying that if I was mugged and lost all the images then the client would still owe me the money because I did not willingly, or by neglegence, breach the contract. There's such a thing as impossibility of performance and I think getting mugged would fall under that in most judges eyes.

Not all contracts/agreements are written, some are inherent and borrowing equipment is one of them.

Would your clients still have to pay you if you were mugged? Depends. Was it right after the wedding on the way back to your studio? Probably - at least for the portion of work you did. They would not have to pay you the full price, since all the finishing and printing work hasn't been done. In other words, you could only be paid a fair amount for work performed. Nothing extra. And only if your contract allowed.

But say you were done with that wedding (it was on a Saturday) and you went straight home. The Sunday you had another wedding and went off to shoot it. You brought with you all the cards from the day before, intending to stop at the studio on Sunday evening. But on your way out to your car Sunday night after the reception, you're mugged. There I'd say you're probably liable for the Saturday loss and you should get no payment, but not for Sunday's loss. It's unreasonable to bring your Saturday cards to the Sunday wedding. Too much could happen. You could accidentally write over the cards, loose or damage them, have them stolen.... And remember, where both parties are getting benefit from your possession of their photos, the standard of care is "reasonable".

Also keep in mind that it would be reasonable for you to have insurance given this is your profession. And it might be unreasonable not to have it.

There's a lot you can do with contracts to protect yourself. But you can't be compensated for more than the work performed if you breach due to no fault of your own. And if you breach due to fault, you'll probably loose in court. May even end up having to pay them something.

 

[egproductions]

Would your clients still have to pay you if you were mugged? Depends. Was it right after the wedding on the way back to your studio? Probably - at least for the portion of work you did. They would not have to pay you the full price, since all the finishing and printing work hasn't been done. In other words, you could only be paid a fair amount for work performed. Nothing extra. And only if your contract allowed.

But say you were done with that wedding (it was on a Saturday) and you went straight home. The Sunday you had another wedding and went off to shoot it. You brought with you all the cards from the day before, intending to stop at the studio on Sunday evening. But on your way out to your car Sunday night after the reception, you're mugged. There I'd say you're probably liable for the Saturday loss and you should get no payment, but not for Sunday's loss. It's unreasonable to bring your Saturday cards to the Sunday wedding. Too much could happen. You could accidentally write over the cards, loose or damage them, have them stolen.... And remember, where both parties are getting benefit from your possession of their photos, the standard of care is "reasonable".

Also keep in mind that it would be reasonable for you to have insurance given this is your profession. And it might be unreasonable not to have it.

There's a lot you can do with contracts to protect yourself. But you can't be compensated for more than the work performed if you breach due to no fault of your own. And if you breach due to fault, you'll probably loose in court. May even end up having to pay them something.

Agree entirely!

 

[BrianMurphy]

I don't live in America where litigation is commonplace, and I don't say that to offend, it is just a fact. The insurance industry and the legal industry are just big business.
It seems to me that in your case there are some clients you can work with and some you should just pass on to someone else. If you feel comfortable operating your business with the deal memo you have now, then continue. Carrying insurance to protect your crew and gear is a good thing no matter what but if you are an honest business person with a body of work and references the client should be satisfied that you will deliver what you say.
Not a big fan of lawyers and I hold my nose every time I pay my insurance.

Just my two cents

 

[ectobuilder]

It's all about outcomes. This is a "free" country so you are "free" to do whatever you want. You can back your clients into a corner so that your business can get guaranteed payment, but this kind of iron fist policy can also turn future clients off on your services.

Unless of course you have a big name in the biz and can demand that kind of policy out of your clients.