Partial Delivery of Wedding Photos

Discussion in 'Wedding and Event' started by ted_nugent, Aug 25, 2013.

  1. As a photographer myself, I put a great deal of thought and research into selecting a shooter for my own wedding (as I wouldn't be able to shoot it myself) :)
    After a great deal of effort, we selected a photographer who's work I respected, had generally heard good feedback from previous clients and interviewed well prior to our final decision.
    The wedding day and engagement photos where shot on time, and all the images or proofs that we saw were creatively great, but once our deposit was paid, all levels of customer service went out the window up to and after the wedding day.
    We signed a contract, paid our deposits and fees on time (and up-front) and held up the client responsibilities in every way, but delivery of any final shots has been extensive delayed (6 months and counting), and worse, our attempts to politely get updates and any form of communication via Facebook, phone and email with the photographer have gone ignored.
    After finally threatening legal action, the photographer delivered digital proofs via PASS, but has yet to deliver final shots on disk and in print as stated in our contract. I've shot weddings in the past, and work very hard to keep my own clients happy and informed and am shocked at the level of unprofessionalism in our choice (and probably more so that I didn't see it coming).
    However, my question is this - if the photographer delivers partially, but not to all requirements in our contract (which is very clear on timeline, final delivery and qty) - do I have any re-course? Our issue is not with the creative - but the business side of the transaction. Can we revoke our permission releases for her use of shots from our wedding in her promotional activities? Will small claims be worthwhile, or can we sue for a partial refund?
    Any advice is greatly appreciated,
    Ted
     
  2. Ted, you don't say where you are in the world and laws may vary by jurisdiction. Generally speaking if the supplier has not upheld the Contract then you could certainly argue that there has been a breach.
    This does not however give you the right to make alterations to the agreement since you yourself would then be seen as breaching the terms agreed, which wouldn't do you much good if you decided to pursue the photographer through a court.
    One thing you must bear in mind about courts (and I will preface this by saying I am in the UK) is that any judge will expect ample evidence that you have investigated all reasonable means of resolving the matter with your photographer. I cannot stress this enough, because if you have not in the eyes of the judge tried hard enough, then you will be wasting your time in a courtroom. If you have not already done so I would type out a proper letter setting out what has happened and where you feel the breach has arisen, and send it via registered Post. Give the photographer at least two weeks to respond. If there is no response send another similar letter reiterating your points but this time set a timescale, and make it clear that you wish to meet face-to-face to discuss the situation. Do not simply plough in with threats of legal action without having gone through these stages first. If the photographer remains unwilling to discuss or resolve the matter then you could look at the small claims track but I would urge you to make sure your position is strong before doing so. It is not as simple or clear-cut as people seem to think.
     
  3. do I have any re-course?​
    Yes.
    Can we revoke our permission releases for her use of shots from our wedding in her promotional activities?​

    Unlikely. Plus you are claiming there is an enforceable contract. It wouldn't be helpful to breach it yourself. Unless they are in a jurisdiction requiring special permission for even work sample usage of one's likeness, they probably can use it for that anyway even without a contract. Often such terms are in a contract to to deter complaints about use of the likenesses and avoid misunderstandings as opposed to seeking an actual right to use the images for that purpose. Plus usage of just one wedding is probably of little value to the photographer even if special permission were needed.



    Will small claims be worthwhile​
    Maybe. Relative to other hassles.
    or can we sue for a partial refund?​
    Yes, with fair prospects for success.
     
  4. "Will small claims be worthwhile"
    I tend to think it is, and I often wonder about forum responses to the contrary.

    Indeed you'll incur time and money in the recovery process, but to the offender it's a bit like getting parking tickets - ignore it and you'll get a notice. Ignore the notice and you'll get a court summons. Go to court and lose, and your bill will be many times the initial ticket price, so worthwhile or not becomes more of a judgement call on the party who has the facts again him (or her) and therefore with more to lose.

    Only a hardheaded tortfeasor is going to fight a lost cause to the bitter end when they don't have a case, and that's usually rare, so pursuing legal recourse will more than likely result in a desirable settlement before it gets to court.
     
  5. I have to wonder how many of the people offering advice to pursue court action have actually been through a similar process themselves. I can tell you now that even if the court were to rule in your favour actually recovering your loss becomes a different matter - and often something that a defendant will simply evade. The more there is a lack of response, the more the person bringing the action will have to spend to pursue the route of recovery, often with little or no hope of recouping those losses. In the end the entire process can often cost you far more than the original loss. My advice is to make every possible effort to gain a resolution first via less stressful means, before you even begin to consider the courts.
    I also appears from the OP that this photographer does not have a prior history of this kind of thing. So it's an odd case, it isn't involving a complaint about the images or money - the OP is simply waiting for the high-resolution files to arrive and I can see no earthly reason why the photographer would withhold those. Unless of course the OP isn't actually entitled to them in the first place, and has not actually paid for the high-resolution images. Therefore Ted you will need to be quite clear that there has not been some crossed wires somewhere in what was agreed - this happens quite often. Check there is no possibility for misunderstanding or ambiguity in the contract. The OP has seen the proofs and apparently that is where the communication trail ended. That's the bit of the story I'm wondering about. All too often we hear complaints about photographers on this forum only to later learn that there are two distinctly different sides to the story. I will also say that given the OP has shot weddings professionally himself I would have thought he would have a professional network to draw upon, of trusted colleagues who would happily take on the work. I find it odd the OP would choose somebody he does not appear to know well.
    These comments are not designed to be irritating to the OP, merely questions which might be asked should he pursue a formal course of action. Another possibility is that the photographer may have suffered a catastrophic data loss since supplying the proofs - there has already been a recent thread on that.
    Lastly, if the photographer belongs to one of the representative professional bodies then you should have the option to seek mediation and resolution via that route.
     
  6. "Go to court and lose, and your bill will be many times the initial ticket price"​
    Since the remedy for breach of contract is to put the non-breachingparty is back in the position it was in prior to the breach, its unclear why there is this claim that the remedy will somehow be "many times" more. A practical exception being the equitable remedy of specific performance to perform or tender a unique service or object which can turn out to be more difficult or costly than originally envisioned. In this case, however, the unique images appear to exist and able to be produced. Even if not in the format agreed on. Money damages of a partial refund are the likely remedy if pursued.
    Only a hardheaded tortfeasor is going to fight a lost cause to the bitter end when they don't have a case, and that's usually rare,​

    Its not rare at all in small claims court. It isn't a tort issue in any event. Its a breach of contract matter.
     
  7. "The more there is a lack of response, the more the person bringing the action will have to spend to pursue the route of recovery, often with little or no hope of recouping those losses."
    Lindsay, the enforcement of a court judgement can be made through the court by request. A court may order the losing litigant to produce records of income/expenses in order to determine their ability to pay; a court may use bailiffs; a court may order wage deductions, a court may seize assets and bank accounts; a court may order the liquidation of property.

    Of course it goes without saying that an amiable settlement is preferred over litigation and every effort should be made to pursue it, but not everyone responds to sensibility and will foolishly challenge the authority of the court and the sanctity of its process often with disastrously escalated outcomes.
     
  8. "the enforcement of a court judgement can be made through the court by request. A court may order the losing litigant to produce records of income/expenses in order to determine their ability to pay; a court may use bailiffs; a court may order wage deductions, a court may seize assets and bank accounts; a court may order the liquidation of property"
    Sometimes with extra time and effort expended. Whether it is a worthwhile endeavor to pursue in the case of a more meager partial refund is a practical issue. Worthwhile for $5000 dollars, sure. For $500, maybe not. Especially in instances where one has usable images.
     
  9. I don't have any legal comments.

    I do what to say have a wonderful marriage with blissful memories.
     
  10. Michael, I'm not talking about what the court orders. I'm talking about the common difficulties associated with enforcing those orders and/or collection. If the defendant chooses not to respond to the judgement, then time and therefore money is involved in pursuing the nonresponse. It is erroneous to think that Bailiffs have blanket powers to enter and seize property - I assure you they do not if the property owner prevents access, which they can. Bailiffs are very often unsuccessful. Defendants may not have assets worthy of seizure, or they may defend those assets, or transfer those assets or property. This is the problem - habitual or clued-up offenders realise that claimants will often have to give up at some point.
     
  11. Thanks so kindly for the feedback, it's quite helpful. I'm usually on the photographer side of questions like this, this is the first time I'm client side. :)
    We're located in Canada, and am definitely looking at it as a breach-of contract matter, and only seeking to enforce the contract that we executed with the photographer which is clear and explicit.
    I'm trying to balance the cost/time to seeking a settlement, and we have spent many weeks attempting to resolve this directly with the photographer to no avail.
    Last question, the the cost to us ended up more then $3k, can I reasonably seek a full refund (given a clear breach of contract), or should we seek a partial based on the partial delivery?
    thanks kindly,
    Ted
     
  12. William Michael

    William Michael Moderator Staff Member

    I understand the questions that you are asking, but I’ll ask you a question.
    What do you want more – the monetary compensation or the photos? Perhaps, just the files and not the prints?
    Based only on the fact that proofs came as a result of the indication of legal action I think you might have good leverage to get, at least the files.

    If I were you - (and I wanted the pictures more than a court finding for me) - I would still (even after six months of seemingly unfruitful correspondence) be investing time in negotiating the situation with the Photographer.
    In this respect (of negotiation), consider that you might not thus far have been giving the Photographer options which are suitable to his situation - yet will also achieve the result, that you want.
    WW
     
  13. We're located in Canada
    I guess we need to ask everyone that posts questions where they are from to avoid wasting time providing potentially pointless responses. Too often we are not told until much later.
     
  14. John, it wasn't really pointless. Your efforts and good advice will surely help photographers here in the US.
     

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