Imagine, if you will, that you’ve been hired to fly to Italy to photograph a wedding. The wedding is luxe; the venue is a thousand-year-old castle, the guests include George Clooney and Meghan Markle, the event is a week long, with all expenses covered for everyone. You are being paid a crazy amount of money, and you are not about to mess this up: you’ve brought your best two cameras and no less than three backup cameras, a whole trunk of support equipment including elaborate lighting setups, and two well-trained assistants in case you get sick or need a break. Your contract with the wedding party states that you are the sole and exclusive photographer and that no other photography is allowed, and the wedding party has already contracted with People magazine for exclusive rights to the shots. You are so, so pumped. This is your big break.
But literally everything that could go wrong, goes wrong. One of your assistants is detained at the border because he forgot to renew his passport. Your other assistant trips on some icy steps at the wedding venue, breaks her leg, and is out of commission for the trip. You contract food poisoning yourself from the catering and can barely stand enough to take photos. Your main camera is accidentally broken by customs officials; your second main camera stops working for no reason you can see, your first backup camera is smashed by a guest’s small child while your back is turned, your second backup camera is ruined when the venue’s sprinkler system malfunctions and sprays it with water, and your third and fourth backups simply never arrived, lost with several other pieces of luggage. The venue tells you that you can’t set up any of your lighting equipment - despite you asking months previously if your lighting equipment would be acceptable - because the strong lights might damage some of the ancient murals in the castle. You manage to take some shots on your iPhone - better than nothing, you think - but the shots are terrible, extremely dark and improperly lit.
So who is liable for all of this mess? The answer to this question depends a lot on your photography service contract you have with your client.
To avoid and or limit your liability, you will want certain provisions in your contract to help make sure you’re safe. First, your contract should include a clause stating that you are not liable for missed shots due to any venue rules or interference by guests. It is on the client to either accept the limitation constraints or work with the venue to change the rules.
Second, and something that is often overlooked, your contract should limit your liability in the event your equipment malfunctions - regardless of cause. Along that same line, it is not uncommon for lighting and cameras to get knocked over by guests or others at the event you are photographing. Whether it was an accident or done intentionally, you’ll want to make sure your contract addresses the issue and states who will pay to fix your equipment. Note that you cannot make others who are not a party to the agreement contractually liable for the damage, but you can agree that your client will cover the cost of the damage or the legal fees should you need a lawyer to seek recovery from the guest responsible for the equipment damage.
Keep in mind, however, that limiting your liability will not absolve you from liability all together where you would get to keep what you were paid under the contract without providing any photos in return. But this is why it is important to have a cap on the extent of damages you will be responsible for. For failure to fully perform all your obligations under the contract, your limit of liability should be strictly limited to the total amount paid under the photography agreement. For failure to partially perform, your limit of liability should be capped to a partial return of all monies paid. Without this cap on damages, you could be liable for additional monetary damages called “consequential damages”. These are damages that go beyond the contract itself and into the actions that flow from the failure to fulfill.
For example, in the scenario provided above, you were aware that your clients had contracted with People Magazine for exclusive rights to the images that would inevitably increase your clients’ notoriety. Therefore, your clients could demand in addition to actual damage (cost of the contract) consequential damages. A damage limit would prevent that from happening. The damage clause should also include how disputes will be handled. Not all disputes need to end up in litigation. It is possible to agree that a dispute must first try to be resolved through a good faith discuss with your client, and then be submitted to a neutral mediator. Litigation as an option for dispute resolution can be your last option. Within this dispute resolution clause, it can also address who will cover costs of attorney fees.
Bottom line, you’ve got homework to do: review your photography service contract. Make sure you understand it yourself, and test it against the scenario we’ve provided. If you have questions, don’t hesitate to seek answers from your fellow photographers or a lawyer.