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Scammed by other photographers?


john_taylor24

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<p>Hello, I will try to keep this question as short and simple as possible. As a wedding photographer, when you sub-contract out another wedding photographer to shoot a wedding for you because you were hurt, or sick, etc. - what do you do when they<em> lie </em>about the amount of years they have done weddings, their equipment they have and use, etc.? We subcontracted a company that has a great website, we saw 3 albums of their work, their sample online gallery and their blog. We were told by them they had been doing weddings about 5 years, and that they had prime lens, and they were all 2.8, 1.8, etc. We had a contract that stated "payment upon successful completion of this assignment" that they would receive payment in full. The assignment stated 500 raw photos from all day wedding coverage. We were horrified when we received the raw photos. They are so poorly exposed, the histogram was bunched on the left and they were literally, black. They were honestly the worst photos I have ever seen! Once we corrected them, they are barely even printable. They were shooting in a dark hotel, the formals at iso 400, F8 and 1/60th shutter speed. They shot some in auto and TV and we told them to use a prime lens wide open during the ceremony, etc. and it was at f8. The max apt. on the metadata said 6. I know I don't use those settings. We even reviewed lighting and techniques, etc. for 2 hours with them, and they seemed to know what they were doing and voiced no concerns or questions. We thought we did everything right, but what do you do when a photographer lies about their experience, equipment and knowledge and you are stuck with an unhappy client? The photographers want the rest of the payment, stating they shot the wedding, per the contract, it shouldn't matter they didn't turn out.<br>

I don't know what to do?</p>

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<p>What kind of demands, if any, are the clients making? To me, that would be the key factor whether I'd seek legal advice and possible take legal action. If the clients aren't making demands (like large amounts of dollar compensation), I would consider paying the balance to the contractors and making the best of the situation (lesson learned and all that).</p>

<p>But that's my opinion and what I'd do. You might be different. In any case, it will be a mess so figure out whether having to deal with the mess is worth it to you. No one will win in the final analysis.</p>

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<p>The clients have only seen what is online for now. I am worried once they see the prints in the next few weeks, they will a lot more upset. I am sure the client will want a refund. The package they contracted came with an album (whcc) and I will have to incur costs to use a flushmount so I can have more control of the prints. It will be cheaper for me to have prints re-printed in a selfmount than to have an album reprinted. The formals are cropped in camera so tight, they won't be able to have any other shape, like an 8x10, etc. I'm sure it will get uglier with my client once they see the print quality. The metadata showed they used a Nikon D50 and D80, and we use 5D's and 50D's and L lenses, so there is a difference in quality than what our client thought they would get.</p>
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<p>Angel,</p>

<p>This is a tough problem and I'm afraid I'm going to give you an answer you don't want.</p>

<p>I do think Bob Sunley's suggestion has merit. A lawyer might help you deal with the other photographer. But you're still the one responsible for the client. Basically, it's YOUR responsibility, when you hire a subcontractor, to be sure that they know what they're doing. If it's not your responsibility, whose responsibility is it? You want to say (I think) that it's the SUBCONTRACTOR's responsibility to assure you that they qualified and, um, not to lie to you about that. That argument might work when the person doing the hiring is a normal client and not themselves an expert in photography. But those of us who are in the biz are supposed to know better than ordinary consumers. The general legal rule is that employers are responsible for the actions of their employees or agents when those actions fall within the ordinary scope of their duties.</p>

<p>Now please note: I'm NOT letting the other photographer off the moral or even the legal hook. I'll accept your claim that you were lied to, that they misrepresented their abilities. I sympathize with you, I really do, and I can easily imagine myself in the same bad situation. But if the client came to YOU for services, and you passed the job to someone else, the other photographer may have to answer to you - and indeed, you might have some legal recourse against the other photographer. But I believe that YOU have to answer to the client.</p>

<p>*</p>

<p>THe moral of the story, I guess, is, if you hire a substitute, you really need to KNOW what they can do. I acknowledge that it's absurd to think that you're going to give someone else a written test in Advanced Wedding Photography. But that's hardly the only option, and I bet your client expects that you'll have done more than ask a substitute shooter what equipment they have. If you're a working photographer in your area with long experience yourself, I suppose you ought to know other photographers with good reputations. If you don't know the reputation of the person you're hiring, then I think you would need to do something to give yourself confidence in their true abilities, say, ask them to work with you on a gig as second shooter. </p>

<p>*</p>

<p>One thing I don't understand: If the pictures are as bad as all that, what does this other photographer say in his defense? I mean, how did the conversation go? You're claiming the photo is black and the other guy says it's just creatively exposed? </p>

<p>Another question. It sounds as if, before you hired the other photographer, you talked with him about photography for a good while and on the basis of that conversation you felt he knew what he was doing. I'll skip the issue of the difference between knowledge and practical capability and go instead to another question: Is it possible that the person you interviewed was NOT the person who actually took the photos? In other words, the client hired you, you passed the job to another photographer who demonstrated good knowledge to you personally, and that person then passed the actual gig to a third photographer who you never talked to and who in fact had no idea what he was doing?</p>

<p>I do feel your pain and I wish you the best here.</p>

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<p>Hard to say without seeing the images, but again, if it were me, I would own up to the client immediately, and not wait for them to see the images, hoping they won't notice. If you are sure they will want a refund, in total or even in part, I'd set up a meeting, explain the situation, and basically find out what will make them happy. I'd be prepared with several varying offers, ranging from a little to a lot. I'd consider myself fortunate if I can get away with coming out even in raw expenses, or even paying a bit, just to move on.</p>

<p>In the meantime, I would express my dissatisfaction to the contractors and tell them that the balance, if any balance will be forthcoming, would be settled once the clients had seen the images and you know what their demands are.</p>

<p>I would strive to settle this without lawyers first. But if things become ugly, I would call them.</p>

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<p>William, thank you. I agree with you, it is our responsibility. That's why I'm really upset about it. All of the work they showed us was fine and of great quality. My main question, is when I am asking what lens do you have, how long have you been doing this, do you know how to shoot in this mode or that (all in person btw) basically because for me to contract you, you would have to have this or that, etc., - and they lied. If they would have said they didn't have it, I would have simply hired somebody else. They didn't have the equipment they said they did. Anyone could rent equipment and show it to me and say it's what they use. We never contract anyone out, but I was in a situation that I had to have a replacement. We obviously would never to it again, but my worry now is if I get hurt, I would have to.<br>

About the conversation, here's the kicker. They were told raw files. So when they handed me the disc, they told me the bride refused to have her photo taken where their light kit was set up. That was my first red flag. Basically they told me a hand full of stories that in 5 years I have never seen or heard of. Then they said that they just didn't have the equipment for the low light - well that's not what they told me when we talked (multiple times.) Well, anyway, when I put in the disc they appeared fine (large thumbnails.) Later that night when I imported them, they all just started going black - back to default. They actually went in and corrected (tried to) each photo so they appeared exposed, etc. when you opened it up. That's what really upset me, they knew. They have not contacted me with a response since then.</p>

 

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<p>As far as what I would have done....called the photographer.....have him stop by my office and proceed to show him that he should really be looking at a new hobby. I then would have offered him 1/3 of the deal. If he didn't like that and thought he deserved full payment I would have kicked him out of my office with nothing.</p>
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<p>It's very difficult to see the problem when the majority of the photo is a black box. Perhaps just blackout the faces so it's easier to see the issue.<br>

As far as client satisfaction, I'd be offering a free portrait shoot & a number of prints for free. It certainly won't be the same as a wedding album, but it should help smooth out any problems.<br>

As far as the sub-contractor goes, unless you've got everything in writing, it will be very hard to follow up on legal action, not impossible, but a lot harder. If you don't do so already, I'd be making sure that a contract was signed detailing every requirement and clearly stating liability for the shoot will be their responsibility as well (i.e. you would seek reparations from them). Check with a lawyer/solicitor for wordings etc, and how best to handle your current situation.</p>

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<p><em>employers are responsible for the actions of their employees or agents when those actions fall within the ordinary scope of their duties.</em><br>

<em></em> <br>

Be careful not to confuse agency issues with contract issues. No subordinate smashed their car into a guest or anything. The rest of the post, however, recognizes the contract issues. Namely that the photographer contracted by the client is liable to the client for a breach of their contract and the farm out photographer is liable to the photographer for any breach of their contract.<br>

Coincidentally, I raised this a the potential double trouble problem to watch out for in a farm-out related thread called 'Image Usage' which started on the 24th of this month. It didn't take long for someone to report such a problem.</p>

<p>Here, the contract of the photographers will be imortant. We don't know what's in it other than " ...successful completion of this assignment" sentence. The 'successful completion' part being of interest. That aspect is of interest even without a written contract as are representations made ect.</p>

<p><em>The contract they signed stated that they would get sued, not me, but then I have to prove they were negligent</em><br>

<em></em><br>

I don't see how a photographer having such a provision in a contract with a farm-out photographer will be binding on the original photographer's client if the client is not part of that contract. Perhaps you mean there is some sort of hold harmless or indenification clause which would be great to have if it is drafted properly so that it applies to this situation (or possibly nullified because photographer/client contract requires a specific identified shooter)</p>

<p>It seems like the term negligence is being confused with failing to fufill contract terms. Negligence is a different type of legal matter where some different things need to be proved. Its easier anyway to just have to show one thing that the results weren't adaquate rather than having to prove a bunch of other stuff too.</p>

<p>Well, it looks like your going to have to make good with the client but if you have a indemnification clause any deal you make with them may effect how or if the clause with the farm-outs will apply. The farm out photographer may sue at any time as it is.</p>

<p>I suggest you consult with an attorney in your jurisdiction about your situation instead of using our comments for advice. This one may get hot soon. I hope it all works out well.</p>

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<p><em>"They were shooting in a dark hotel, the formals at iso 400, F8 and 1/60th shutter speed. They shot some in auto and TV and we told them to use a prime lens wide open during the ceremony, etc. and it was at f8. "</em><br>

<em></em><br>

I'm afraid that if they screwed-up as bad as they apparently did, the results would have likely been worse had they shot with wide open apertures. When you subcontract work you're letting go of control,...... way too risky for me, especially when it seems like everyone and their mom has a snappy website, cool edgy business cards and haven't shot more than a handful of weddings. Even if someone shows up with "L" glass, that doesn't mean their images are going to be better than an experienced pro using a "kit" lens.</p>

<p>BTW, welcome to P-net :-)</p>

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<p>Wow, thank you. My contract with the client states "photographer is limited by the guidelines of the ceremony official or reception site management. The client agrees to accept the technical results of their imposition on the Photographer (no flash during ceremony, church rules, restrictions, etc.) and their guests' flashes and cooperation." So if I understand your post, John, then I would be responsible therefore defaulting to my contract with my client? As far as the contract with the sub-contracted photographers, I used the one from the PPA. On line 5 and 6 it states "Contractor certifies that he or she has business liability insurance and malpractice insurance (or its equivalent) in an amount sufficient to cover any foreseeable damages <em>related to its performance of this contract. </em>Contractor further agrees to defend studio in any action arising out of law or equity and to fully indemnify the Studio for damages related to the Contractor's <em>performance of this contract. </em>Contractor acknowledges that in addition to regular damages related to a failure to perform this contract, Contractor may also be liable to Studio for consequential damages such as <em>lost business opportunities</em>." </p>

<p>Due to my lack of legal knowledge and verbology, I was under the understanding that "successful completion" meant exposed photos of the entire wedding, covering all of the main events, that are printable. It would be one thing if I could get a decent 8x10, but even the 4x6's are really bad. I am thought the assignment part of the contract "Assignment in exchange for adequate and valuable consideration, contractor agrees to complete the following assignment..." would have covered me. Their argument is that they "did it" so it was successful and mine is I can't print them out, so it's not. </p>

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<p>I ran into a simular problem when I hired a second photographer for a wedding I shot earlier this year. He stated he was experienced had a nice web page and a good portfolio... <br>

The images he shot for me at the wedding were horindous, out of focus most of them were very dark and he had the wrong white balance set. I am just glad I had him do the guest tables and some grip and grin photos... I shot all the formals and most of the ceremony. I did lose a lot of the reception photos because he shot a great deal of them and some of the ceremony. I was able to salvage most of the pictures but it was not what he said he could do. I never paid him the balance of the agreed upon fee and never used him again. I am much more careful now. Well you live and learn...</p>

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<p>David, thank you but shooting wide open is an entire different opinion of mine. The photo posted is in a church, very, very dark, wide open at 2.8. Now, if I needed more than 2 people in the shot, that may be different, I change it up and down, but when it's really dark sometimes, I think anyway, you need to shoot wide open. But to each their own. </p>

<p>I agree with you about sub-contracting, but what else are you to do if you are injured or ill and you have to do it? That was kind of the whole point of my thread, what do I do to keep from being scammed? When you know someone, see their work, and rule out all you can, what do you do if someone flat out lies to you about their equipment or skills? I know it happens in the construction business all of the time, but I am asking what else can I do to keep this from happening again, as I need a back up in case I am injured.</p><div>00U4Eb-159345584.jpg.1b0d2d87a810bd685c4fb230dff55100.jpg</div>

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<p><em>"I agree with you about sub-contracting, but what else are you to do if you are injured or ill and you have to do it? .......... but I am asking what else can I do to keep this from happening again, as I need a back up in case I am injured."</em><br>

<em></em><br>

Easy peasy, you simply put a clause in your contract that says if you are unable to shoot for some unforeseen reason that you will give the B/G a full refund. You can also add that you'll make every effort to <em>help them</em> find a replacement but when they do find a replacement they need a new contract with the new provider. You can also routinely use a 2nd shooter, if worse comes to worse, they cover solo. You can also establish relationships with local pros so that you know their abilities and that you have a code between you that you help each other if the need arises. </p>

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<p>To prevent this from happening again, I'd begin to make contact with associates. Wedding photographers or up and coming wedding photographers with whom you can spend a bit of time with and possibly test out on a casual basis before actually needing to have them cover a serious job for you in a pinch.</p>

<p>Some wedding photographers form a private 'band' of associates who refer clients back and forth and who cover for each other from time to time. Or, since you appear to belong to PPA, ask for referrals from your colleagues there.</p>

<p>I doubt that one can completely and absolutely prevent such a situation from happening again, but one can take some small steps. The thing is actually being able to trust that the performance of a particular fill in photographer is as described, from personal experience or the say so of a trusted colleague.</p>

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<p><em>So if I understand your post, John, then I would be responsible therefore defaulting to my contract with my client?</em><br>

<em></em><br>

Ordinarily, if you fail to provide what you are supposed to in your contract with a client, you have to answer to the client. If your outsource photographer fails to provide what they are supposed to provide in your contract with the outsource photographer, the outsource photographer has to answer to you. Meanwhile you are stuck trying to make good to one while you are trying to make the other good to you.</p>

<p><em>Contractor certifies that he or she has business liability insurance and malpractice insurance (or its equivalent)</em><br>

<em></em><br>

For future reference its good to actually see a certficate or face sheet of the the other photographer's policy. The downside is that it may be hard to find people that have such insurance. Having the clause in the contract is worth something at least. If someone makes a representation like this and its false, it can be used to attack their credibility later. If a judge has to decide who is telling the truth in a dispute about the contract, its useful to point out the dishonesty that has already been displayed. Also, for some types of legal claims called "equitable", dishonesty may cause the claim to be forfeited under the doctrice of "unclean hands". Finally it helps negate any hardship/unfairness issues they may make as they represented that they have insurance.<br>

<em></em><br>

<em>Contractor further agrees to defend studio in any action arising out of law or equity and to fully indemnify the Studio for damages </em><br>

<em></em><br>

Translation: They agree to pay for or otherwise get a lawyer to defend against a lawsuit filed against you because of something they did or failed to do and to compensate you for anything you have to pay out if you lose the lawsuit. (there's some other hurdles and complications I left out but, as you can see, its risky for anyone to sign indemnification agreements).</p>

<p><em>consequential damages such as lost business opportunities</em><br>

<em></em><br>

Consequential damages are usually disallowed absent a contract allowing them and some other particular situations. Lets use film development as an example. If you are certain to make $10,000.00 if you deliver prints to ABC corporation but the photofinisher winds up destroying the negatives, you are out the 10K and the $5.00 for the roll of film. Absent an agreement to the contrary, the photofinisher is only liable for the five bucks. If it were liable for any consequence of its failure, such as the 10k loss, it wouldn't bother being in the business because its too much risk. The rule against consequential damages (i.e. other unknown but potential consequences for breaching a contract) is based on economics. If we were liable for any consequence if we breach contracts, the entire economy will collapse. To make someone liable, they have to agree. In exchange, the other side pays them more money to make the risk more acceptable. (I make this digression so that other photographers will think twice before signing agreements where they accept responsibility for consequential damages).</p>

<p>Lost business opportunities are a type of consequential damages but they are usually not allowed unless there is really really strong proof of what the amount of losses are. The fact that one might or probably lost business is not enough. Its got to be verifiable or based on clear track records. </p>

<p><em>I was under the understanding that "successful completion" meant exposed photos of the entire wedding... ...Their argument is that they "did it" so it was successful and mine is I can't print them out, so it's not. </em></p>

<p>You likely position is that successful completion means providing a acceptable quality photos. Their likely position is that they delivered photo's period and it doesn't matter how crappy they all may be. If a landscaper builds a retainer wall and it falls apart the next day because it was so poorly done, will they be really able to claim the wall was 'successfully completed" and they can keep all the money (especially if all the representations were that they were experts and knew what they were doing?) </p>

<p>The indemnification clause may become ineffective if you make a new deal with the client as it only covers 'action arising out of law or equity" which means court activity not private. The upside is that cleint is not going after you anymore (get a release of any of their claims in writing) and there is nothing on that side to defend anyway. A smaller downside is that the outsource has a clearer and shorter path to press their claim against you. Its harder to justify witholding payment to the outsource photographer when the client walks away satisfied (legally satisfied that is as opposed to being emotionally satisfied). </p>

<p>As I said and still say, this is not legal advice, the comments could be incorrect and/or incomplete and you need to get advice from a attorney licensed in your area. These are things you could ask them about though. Also, I'm not saying the other side did anything wrong. All my comments are speculative and hypothetical since I don't have any knowledge about what really happened. Others may talk about non-legal approaches and I don't dismiss those possibilities. I'm just addressing the legal issues that may come up.</p>

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