Wedding Photography Contracts & COVID-19
Fearless Photographers founder Huy Nguyen and Dave Moss talk with Washington DC attorney Aaron Stark about wedding photography contracts in today's unpredictable environment caused by COVID-19. Read the blog post ""Coronavirus Cancellations" by Arce Stark & Haskell LLP. The transcript below has been edited for clarity
[Huy] We're speaking with Aaron Stark, an attorney in Washington, D.C. about the issues with contracts, cancellations, postponements, anything that wedding and event photographers are dealing with in these times. And with me is Dave Moss, photographer in Canada. I represent many photographers and I know that this is a very trying time for photographers and for their clients as well. It's a completely unpredictable situation. It's obviously changing by the hour too, and with that, more stress comes with that on how to deal with it. So, my law firm's been getting inquiries from photographers and clients about how to handle the situation, if they can cancel, and whether they can get all their money back. Or if they're going to be charged something extra if they're postponing. And whether this is an actual force majeure event. [Huy] In the wedding contracts, there are usually two payments, right? One is at the time of contract signing and sometimes that's called the retainer or deposit, that is half or a third of the total fee. This is a smaller amount to reserve the date and book the photographer - a booking fee. The final payment is bigger usually, and it comes maybe a month before the event, two weeks before, or sometimes at the event. In the situation where it's a force majeure and a photographer may or may not have that contract clause, and the deposit - the first payment - has already been paid. What are the options for the photographer? The general understanding is that this deposit - or a better word for it actually is "booking fee" - is used to reserve the photography services on a particular date. It's the money paid for an exchange in promise. So, that deposit, because it is used as consideration to hold that particular date to perform those particular services, is deemed earned once the photographer stops advertising and stops taking bookings for that date. So that is a done deal at that point. And that's why those deposits or booking fees are non-refundable because the performance has already been completed. That portion of the contract is fulfilled. [Huy] If the client cancels the wedding or the wedding is canceled by force majeure, the photographer keeps that deposit amount? However, if the wedding is still on and the photographer doesn't want to cover the wedding because of health concerns, should that deposit amount be returned to the client? Okay, so two questions. One to address the force majeure question with the client wanting to cancel the photographer. This is the tough part that clients don't like to hear and I wouldn't like to hear either, but - this is just my interpretation of this as a lawyer and my knowledge. Other lawyers may have a very different opinion on this and this may very well need to be decided by a court of law - but under my understanding and my knowledge, the deposit, even under a force majeure circumstance, is non-refundable because for the same reason that I stated earlier is that it was already deemed earned because the photographer blocked off that date. So that part of the contract has been performed and it's been earned. So there is nothing to return because cause it's already been rightfully used. But then the other question, the subquestion, is whether this is actually a force majeure event. So force majeure, it's going to be different and it's governed by different state laws, and they're gonna have their own case law that defines what a force majeure event is. But for the most part, it has to be unforeseeable and unavoidable. And the thing is, while this may be unforeseeable event, it's not an unavoidable event. Weddings are not time sensitive. They can be rescheduled and therefore, it's not impossible to hold this event at some other time. There may be an instance where it would be literally impossible to have a wedding, but in this situation, that's not necessarily the case. And also, for it to be, if you're really gonna make a force majeure argument, you have to be on lockdown and the wedding has to be happening now, right? I mean, a lot of these weddings that are getting canceled are happening months from now and we don't know what's gonna happen months from now. So, you can't really call it a force majeure event because that would mean something may come up. It's not unforeseeable. You actually see that, "Okay something may come up and impact my wedding day. "So that means I have the availability to reschedule." So I hesitate to call this a force majeure event. So, that's an issue, yeah. [Huy] There's still some room for interpretation if this goes to court? Looking at this from a public policy standpoint, I definitely think the courts are gonna be sensitive to this because this is a very scary time. What's interesting is force majeure events are usually localized and could be because of weather conditions or an unfortunate (event), like a terroristic attack or something, but that's usually localized to one place. And here, we're talking about a complete global issue. So I think, I think courts will be sensitive to that, but they will also look at the facts of whether the wedding was taking place at the time there was a mandatory government shelter in place in action, things like that. [Dave] What if the client chooses to not reschedule, Aaron? We've seen some clients cancel their event and then are demanding their money back. And they're blaming it on the government, saying, "The government says we can't have our event." Technically if the client decides to cancel and doesn't want to reschedule the event when they could, the photographer's cancellation policy comes into play. They can blame it on this pandemic, which is obviously a viable excuse. But if they decide not to reschedule, the photographer can invoke their cancellation policy, which means that if their wedding was two weeks from now and the photographer had collected all of the money for that, they could theoretically keep it all. But, just to go back to stick on the deposit issue, even in that situation, even if there was a force majeure event, the photographer still, in my opinion, can keep that deposit because it's been earned because they held the date. But all additional money, that's debatable whether they have the right to keep that, and I can talk about that as well. [Huy] My second question is if the wedding's still happening and the photographer doesn't want to go to the wedding? I'm getting a lot of those questions. Generally, photographers are protected in their contracts by their limit of liability clause. And their limit of liability clause generally says something to the effect that if the photographer is ill or cannot make it, or is at risk of serious injury or something to that effect, they will find a replacement photographer. And if neither the photographer nor the replacement photographer can make it to the event, then damage is limited to all the funds that have been paid toward the contract. Does that also include the non-refundable retainer? Now, this is where it gets a little tricky, but technically, it's debatable. Many contracts say if a photographer cancels because they're worried about their own health, all money has to be returned, except for the non-refundable retainer. Some state that all money toward the contract package has to be returned. So then it's debatable whether the contract package includes the non-refundable retainer. Most photographers under these circumstances, and especially in situations where I've done contract reviews, at that time, this pandemic was not in the mind of anyone. This was not foreseeable for anyone. So, the idea that a photographer would have to cancel or not make it to a wedding, they were always under the impression that, "Oh yeah, I would give everything back "because that's my job is to be there, "and for whatever reason I couldn't be there, "if I got snowed in or I got sick, "of course I would give it back." But now, we're in a situation where this isn't a one-off issue. They might not want to go to several weddings and that would mean they could not feed their family or pay rent, whatever, if they had to give back all their deposit money. So that's an issue. This is rarely coming up. Clients are trying to use this limit of liability clause to get out of it, but this is really to protect the photographer. Every photographer I've talked to, except for a couple, but most of them, they are willing to go anywhere and photograph anything at any time no matter what. So, the idea that they're not going to photograph a wedding isn't gonna happen, and so, this issue really doesn't come up. But if there is, then they need to go out and find another photographer to take their place. That's the simple thing about it, and most of them can do that. [Huy] Any other issues with the deposits or the booking fee that we can address? The other issue is how much is too much for a deposit. And this has kind of come up because most of the time, photographers who don't collect a large amount for a deposit, when they tell their client that, "Okay, you can cancel, but I'm keeping the deposit," the clients aren't too upset when the deposit isn't very large. Let's say it was a third or a quarter, or something like that. But when they start charging you 50% of their package price, which could mean $3000 or more, people, clients are upset by that. But, that just goes back to my point that photographers who charge that much are worth that much, you could say, and then that's the damage that they would suffer if someone canceled and that's why they hold the date for you and that's what the money's for. And it's not out of the customary norms for photographers to have that as their deposit. But everybody should take everything with a grain of salt in a sense that just because something's written in your contract doesn't mean it can't get challenged. That's what I'm dealing with right now with two other clients, where they have great contracts, they're willing to work with their clients and make adjustments and things like that, but these clients still are very upset and they're willing to really challenge them, maybe file a lawsuit against them to try to get more of their money back. [Huy] So is there any room in negotiation of this fee or is it all or nothing? That's one thing I talk to my clients about a lot too. We all run small businesses and having good client relationships means everything. With photographers having good reviews and things like that is a big deal. So, you might want to think about the cost benefit analysis of whether maybe instead of keeping the full retainer, if that's really the sticking point with their clients, whether you offer half back. [Huy] So if the photographer reaches a settlement with the client, should they do a brief agreement? Definitely. If any contract is canceled or rescheduled, there should be at least an email confirmation where both, between the photographer and their clients, whoever is a party to the contract, the original contract, acknowledges receipt, and it should state the new terms. If it's canceled, it should say, "This is confirmation that your wedding is canceled "and we will be returning X amount of money back to you, "and this resolves any outstanding issues," and then the person on the other end should confirm receipt. Sometimes, if a client is really difficult, photographers are concerned that they're going to get bad reviews. I've stepped in in these situations and drafted what's called a settlement agreement and it basically has the terms of settlement and other terms like a non-disparagement-type or a confidentiality clause, so that way these things remain private and they don't have to be worried about the client going online and bashing them. So, if that's a concern, that's something that should be included too. [Huy] Everything should be spelled out nice and clear so there's no misunderstanding, no confusion later? It should definitely be done that way. And it's all about how you present it to the client too. Sometimes people are scared if all of a sudden they get this legal settlement agreement back when they just were just wanting a refund. So it's important to talk to your client. Talk to your client, let them know, "Okay, I am going to refund you, but I really want to get "everything clear and spelled out, so I'm gonna send you, "don't be alarmed, I'm going send you this agreement. "It spells it all out, please review it. "Let me know if you have questions." [Huy] Anything else about that first payment - the booking fee? I know there's been talk about whether retainer, deposit, booking fee, what should be used. It varies from contract to contract. We're advising now to use "booking fee", which is probably more clear, but, it doesn't matter. What is the most important is that the contract states this is for reserving the date. This deposit is for that and we will turn away other business because you've booked this with us. This is what this portion is for. Something along those lines is important to have in your contract. [Huy] Should we move on to the second payment? I've seen a lot of stuff with photographers online about what happens if the clients cancel the wedding. Let's say that the wedding is next week and they cancel now. Technically under the cancellation policy for some contracts, full payment is due, and most clients have already paid in full by that point. So some photographers think that they can just keep it all, like it's a windfall. I think that is horrible business to do, first of all, just on a moral standpoint. I think it's horrible business to keep it all, to keep it all as if you performed entirely on a contract. I advise all my clients to not do that. I do understand though that people were counting on that and it's obviously, they use it to live off of, I get that. But it is a contract and you do have to perform on it too. It cuts both ways. You get money because you're supposed to provide a service. If you don't provide the service, then you shouldn't get the money. I'm not saying give back the deposit. Notice that, that's different. But if you're gonna keep the entire fee, be prepared that someone's gonna really try to come after you to get it back. But also, this is where you're gonna see a lot of the force majeure stuff, and even though I made the argument that this isn't technically a force majeure event, there is enough going on (for clients) to say, "You know what, court, it is completely unconscionable to have a contract term so weighted in favor of one party. Where something like this, a pandemic, where there's thousands of people being killed, and I can't have my wedding because I'm worried about my grandparents, I'm worried about my own safety, and the photographer gets to keep the entire amount of the contract without ever having to take one photo. That is unconscionable, and I think that's a really strong argument. I don't see a court saying, "Yeah, this photographer should keep $10,000 "even though they didn't take one single picture." I don't think that's gonna happen. It's just not viable. The law in general tries to be fair too and they're going to look at that from all angles. [Huy] But it could be an out of town wedding where you already bought the plane ticket and made a hotel reservation that's non-refundable, and expenses have been incurred. It's fair to get paid for those expenses, right? That is true, and some photographers also doing portrait sessions or engagement sessions, and things like that, before the wedding. Those things need to be talked about and this is where having a good client communication is really vital because you need to be able to tell your client: "Listen, technically I could keep all, under the contract terms, it states this is non-refundable, however I'm not gonna do that in this situation clearly. But I did do an engagement session for you. You do get photos for that. There needs to be compensation for that, clearly. The deposit is non-refundable, unfortunately, because we held the date for you. We're happy to put that toward another date and maybe change that date again for you if need be." So, you can negotiate this with your clients for sure, but I've seen people online say, "Oh, free payday for me." I don't know, that is just, it's not good. [Huy] I know, I don't think we do that. Let's hope we don't. Let's hope not for sure because I think most people should be understanding this entire situation. And I have come across contracts that allow, that state under any circumstance, force majeure, act of God, this and that, nothing is refundable, and like I said, I've advised them that this was likely to be an unconscionable term in your contract. Obviously, you can keep it in there, but my advice is you don't, but and it could be something that someone will challenge later. [Huy] Anything else about the second payment? Well, another thing that's coming up about the second payment - someone said in a issue that I'm dealing with, that, "Oh well, you said you were holding the date for me "and all this and it's not refundable, "but you wouldn't be able to come photograph it anyway. "Nobody wants that date anyway," which is somewhat true, but people have to, this is why this is a really interesting situation that we're in because it changes by the hour. Yeah, maybe no one would want that, to book that date now, so you shouldn't be keeping anything for just holding a date that no one's gonna wanna book anyway, but at the time of the contract, that date was sought after, and maybe even two weeks ago, that date might've been sought after too, but things change by the day. So, that's why it's important to spell out in the contract that what is non-refundable, why is it non-refundable, and to really encourage clients too, that while that date is probably not practical to have a wedding, we can always reschedule. [Huy] In going forward, we would probably want to revisit what contracts are and how sensible it can be or the right way to make sense to everyone. For future weddings? Some people are asking how can they go back and change the contract now and kind of address this issue that we're in. Addendums and revisions can be made but they must be agreed upon by both parties and in writing. So photographers can go back and address that. What I think is a good thing to do is to be proactive and send out a general statement to all clients that have weddings booked for this year, and say basically that this is a trying time and that there's possibility of rescheduling and cancellations. Let clients know that. We just drafted a statement for a photographer that essentially says that we're not gonna hold any client to our rescheduling or cancellation policy. That if clients want to reschedule, they would not do the rescheduling fee. The contract price will stay the same. Put clients at ease and then we address the cancellation (policy) if the client does choose to cancel the wedding, that everything will be returned except the retainer. We remind them why the retainer is non-refundable. And then, we also encourage, again, that it should be rescheduled. That although this is a scary event and unpredictable event, it can be rescheduled. It's not a time sensitive event. So, we hope that they do reschedule. And then, also to kind of give a date, an end date. This is effective now and will be effective until July. So that way there's an end date to this new sort of policy. You had asked the question if photographers have to stick to their agreements. I mean, technically yes, but also if they're offering something better than the agreed upon terms of their contract, I don't think any client would be upset by that. [Huy] Now would be a good time for photographers to reach out to July, August, September, October clients and spell out their options and give them a deadline for any changes? Right, and for however far they want to go in advance for their weddings. Yeah, how far they're willing to have this policy in place. [Dave] I've got a template that I can share with the community as well. It doesn't have an end date on it, but it could be easily added in. But I have a template that we've sent out to all of our wedding clients for this year, basically stating that. Like, "Here are your options. "Here's what we're willing to do. "Here's what we're not willing to do, et cetera, et cetera." I've been sharing it with lots of people. And we had a couple in July who half their guest list was coming from mainland China and they weren't sure if their guests were gonna be able to get here, even at that point in time. So, they've already pushed their wedding to June next year. It's good to be proactive. I think clients appreciate that, it puts them at ease. [Dave] That's exactly why I wanted to do it. If I was getting married right now, I would just want to know what my options are. And then you can already address the retainer issue and all those things ahead of time and kind of give people a heads up. [Dave] We said this is the part that would be non-refundable in the event that you cancel and stuff like that. Aaron, in regards of a contract change, say somebody does change the date and they move to a new date, is there any specific language that you need to have in your contract that says that this is the new contract? That the old contract, do you need to do a cancellation of the old contract or anything like that? It wouldn't, you don't need to null and void the old contract but you do need to have some sort of confirmation that this is an addendum to the original contract entered in on X date. That we, both parties, are agreeing to reschedule the photography services to be performed on X new date. Everything else in the contract still applies. So it basically kind of, it's basically an addendum. Some people could even cross it out, initial it, whatever, but I know everything is done obviously, all these contracts are usually done through online, whatever Acrobat Reader. So yeah, you would just, I think, generally, is the best way to do it is to send a confirmation email to the client and make sure that they confirm receipt, and then you're good to go. [Huy] I'm thinking of a case where the client wants to postpone a wedding but don't know when the wedding would be and they want to hang on to the deposit and book the same photographer? I've done so many contracts and contract reviews, and that is a situation. Most contracts that we draft has a date period where someone can reschedule the date. So they can say, "You can reschedule up to a year," or something like that. Otherwise, you're subject to increase in fees, my prices might go up, that sort of thing. And we always make sure that no matter what, rescheduling, client has to be responsible for travel expenses, for the change of travel dates, and hotel fees, and rescheduling, all that stuff. So all that stuff goes in our contracts, but yeah, that is an issue, right? Because people kind of don't know when. Who knows when this is really gonna end. It really is, it sucks. That is something I don't really have any clear advice on, honestly. I think photographers just have to do what they think is best and try to be as accommodating as possible. But some photographers don't even want to photograph. What if somebody wants to get married three years from now. Who knows whether the photographer really wants to do a wedding at that time. So I would probably say (the recheduling) has to be made within a year. If you don't do it within a year, we'll need to revisit this. I think a date really does have to be picked. I don't think people need to do it now, but I think they should probably tell the client, "You need to do this, you at least need to pick a date "within a year." Maybe not a date that would have to fall within the year, but they need to pick something within that time period. But yeah, that's a scenario that people have to think through. And like I said too, this is really bad, but at the same time, this is also really unprecedented. So, people are trying to figure things out as these issues come up. No matter how good your lawyer is or how good your contract is, whatever, you can't predict every single issue, and plus, there's just a client element to everything. So, you gotta try to work with them, but try to be as transparent and clear as possible of what you hope to get out of it. [Dave] What about change of scope? If they were gonna book a wedding and now they're unsure about travel and stuff like that, so they're gonna reschedule, but they wanna change it to an elopement instead of a full wedding. Would that become a whole new contract or could that be an addendum as well? The scope can definitely change and you don't necessarily need a whole new contract, but it could change. Because everything else in your contract is somewhat boiler plate, I guess. All those other clauses are still gonna apply, but if they're gonna change the scope, then that might change the price of the package and all that. Then you need to address all that, but they have to know though, even if they change the scope, the deposit is what it is. Because at the time they booked you, it was for this particular wedding package, and that's what you turned away for other potential customers by booking them. So, that likely is not going to change. So, they have to think about that. They may not wanna change the scope because maybe whatever they change it to would be less than the normal deposit. I don't know, it's possible. But you wouldn't necessarily need a new contract. You'd just keep everything and just change the scope and change the price. But those are things that you do individually with each client. [Huy] Should photographers either strictly enforce their contracts or can they work with each client on a case-by-case basis? Legally speaking. I just wonder if one client might claim that the photographer didn't enforce the policy for that client and now they're applying it to them, right? Most of the time, these contracts have an enforceability-type clause, which basically says if a particular section or clause of this agreement was not enforced, it doesn't render everything else voidable. It doesn't void the contract itself. Sometimes people choose not to enforce certain parts of their agreement, but it doesn't mean that everything else doesn't stand. And just because one photographer does something different with one client than another client, that client can't use that as evidence to say, "You should be doing the same thing with me," because they're free to, these are all separate individual agreements. It's not a group. So they're free to do whatever they want with one client as opposed to the other. It's a completely separate party. [Huy] When we're speaking about these contracts, we're speaking about laws in the United States only? These contracts have a jurisdictional clause and they state what law applies. Generally, it's the law that the photographer's principle place of business is based in. And it also states the jurisdiction where if there was a dispute, where a lawsuit could be brought, or there might be an arbitration clause. So whether they bypass the lawsuit part and they just do arbitration, but it would spell that out in the contract. So that's the law that applies. So that means that if you have a client in Florida, and the photographer's based in New York, and the Florida client is saying that they should be able to cancel based on force majeure because Florida law states X, Y, and Z. That doesn't really matter because if the contract states that this contract is gonna be governed by New York law, then everybody has to look to New York to see what the definition of force majeure is, or the doctrine of impossibility, or something like that. They're gonna look to whatever law governs the contract and that law is generally stated in the contract itself. [Huy] What if it's not? If it's not, then they look to where, they look at a couple different things. I mean, this is a whole civil procedure law class based on this. But generally, they look at the points of contact. So they're gonna really look where the injury is. So the injury, and that's debatable who's injured in this. So it could be Florida, it could be New York, it could be the client. Especially in a situation like this, where there's a global sort of issue, where everybody's kind of suffering, like the issue with this coronavirus and posing restrictions on almost every state. But anyway, that would be debatable and cases are, that is a huge issue in a lot of cases, where what law applies and where the case should be brought. So it is important to have in your contract, but generally they look to where the injury is, where it was gonna take place sometimes. So, it would be debated, really. If I were representing the photographer, and they filed in New York, or filed in Florida, going back to my example, the first thing we would do is ask for a change in venue. So, you're always gonna be, and say it should be brought where the photographer is. So, that would be just a strategy thing we would do. But anyway, just real quickly too. You'll never have a problem bringing a lawsuit against someone if you bring it where they live. So jurisdiction's always good about that. Unless it's stated differently in the contract, but assuming it's not stated. So, people might likely if it wasn't stated, it really should be brought where the photographer lives, if the client is the one trying to sue. [Huy] This discussion that we're having is American law only? Do European photographers have different contract law? General principles of contract law are maybe applicable to other countries. The idea of a contract, promise for consideration, all those basics to a contract are similar in every country. Photographers, even in the U.S., if there's an issue, they should talk to a lawyer, and the lawyer's going to look at their particular state, and laws, and jurisdiction, and things like that. Anyone's going to deal with a cancellation. Anyone's going to deal with rescheduling. Anyone's going look and no matter where you're at, you should look at your own contract and see what it says. They're going to be very similar in different countries too. A good starting point is to look at your own contract and understand what it says. Understand if you're protected under these situations. Look to see if you have a rescheduling policy. Look to see if you have a cancellation policy. Look to see if you have a limit of liability clause. All those things should be in any contract no matter where you live. [Huy] This is definitely a time for photographers to revisit the contract for future clients. Definitely. We've been offering some free consultations. I've been reaching out to many of my photographers clients that I've reviewed contracts for preemptively just to see if they have any questions about it. Old clients have come to me asking just clarification questions because this is just a weird, unpredictable, scary time. People don't really know what to do. So there are many unknowns and we're trying to get information out there to photographers as much as possible like doing this, for sure, to help people figure out what to do. And it's weird, what we're talking about now, I mean, who knows what's gonna happen next week? [Dave] I have a bit of an oddball question, and it may be more of an insurance question than a contract question, but it came up and I didn't have an answer for it for one of my clients. She was just wondering what does it look like for liability for a photographer? Say you're out shooting a wedding or a family session, or whatever, and you cough or sneeze and then someone at that event says, "Oh, well that photographer coughed "and now I have coronavirus and so they're liable." Is that just covered under a liability insurance thing? That is such an interesting question. And that's what I mean how this an unpredictable scenario. What if the photographer had coronavirus and didn't know it and they show up at the wedding to photograph it? In this situation, I don't think the law would ever find that you are at fault for getting someone else sick. I think that's an assumed risk in anything you do. By just going out in the public, you risk being sick. What if I sent my kid to daycare and they get sick. Can I sue the daycare for them getting sick? I haven't seen any lawsuits about stuff like that with other diseases. So I don't see that really happening. But I guess you could make a claim for negligence that if the person knew they had a sickness that could cause serious injury or death and they put themselves in a situation that would likely expose other people to that. There is case law about that. There are laws to protect those people who are victims of that especially if it's done either negligently or purposefully. But if any photographer went unknowingly and photographed an event, you'd have to show causation. That'd be tough. How do you prove that? That would be something that I think would be nearly impossible to prove. But if there was some sort of evidence. Maybe the person was online, "Hey, I got coronavirus. "I'm gonna go to this wedding and photograph it anyway. "Ha ha ha, hope nobody stands around me." If they had evidence like that then there could be some negligent liability. Basically if there's knowledge about it, I think you should watch. But I think any for accidental stuff, no, I don't think there's any (concern). Thank you Huy, thanks Dave. I really enjoyed this and I think it's good information to get out.
Email Aaron Stark at firstname.lastname@example.org