Wedding Photography contract promised RAWs but didn't deliver.

Discussion in 'Business of Photography' started by james_hooper, Feb 24, 2013.

  1. Hi Folks,

    Similar to the situations I have been reading about on here,
    with the exception that my contract (I am the client) promised
    that I would be receiving RAW images in addition to JPGs. I'm
    an amateur photographer and handy in Lightroom so this is
    something that was important to me and helped justify the
    cost I was paying.

    We've paid in full on time according to the contract but just
    recently found out that the photographer apparently either
    forgot to shoot in RAW mode or has somehow not kept the
    files around despite the contract guaranteeing they would be
    archived for one year.

    I guess my question is what sort of monetary value should I be
    attaching and/or seeking for not getting these RAW images
    that were contractually obligated to be delivered but weren't?
    Perhaps some percentage of the entire package purchase
    price? Our photographer was very nice and professional
    throughout the entire process and we don't want to burn
    bridges but they must realize that this was promised and a
    simple Sorry doesn't cut it.

    Just a bit upset, hope I'm not sounding too angry.

    Any advice from the professional community is greatly
    appreciated. Thank you all in advance.
     
  2. This is a clear case of a serious breach of contract. I would ask for a 50% refund. If the photography refuses, I would go
    to small claims court and sue for that amount. The photographer could argue that the jpegs give you some possibility of
    manipulating the images. You could argue that you specified raw files because jpegs are inferior for your contemplated
    purposes. Then the judge would decide whether the award would be 50% or less.

    Since you got pictures (which you seem to find acceptable) and the jpeg files, there was partial performance of the
    contract. Establishing actual damages is not easy in a case like this. The judge might take the easy way out and award
    you 1/3 (33%) since you got 2 out of 3 of the things promised.
     
  3. If the files don't exist, your only recourse legally is money damages. Under the doctrine of substantial performance, the
    bulk of the work and results was tendered. Raw is more desirable and better but its not like the images are ruined or
    unable to be edited. Its not likely that much can be recovered at all legally relative to all the effort or in general. Of course,
    this is not actual legal advice which you need to seek locally. Maybe some business approach advice given here will be
    better. You should consider that, while the you are upset over a term not met, it appears the shoot and images were a
    success.
     
  4. Layperson's response: Could you convince a judge in a small claims court that the jpg files, as opposed to the promised raw files, limit your ability to create images that are demonstrably better than the images you received from the photographer? I assume the images you received are professional in quality. Unless the judge has some personal experience with this, I think this would be very difficult. The judge may still rule in your favor but not attach any damages that are worth your time and expense, on the grounds that your case amounts to a technicality that did not affect the value of the delivered product, and thus the contract was fulfilled. I would ask the photographer if you can arrange for a photo shoot at no extra cost with your bride for which you get the raw files.
     
  5. Ben raises partial performance which has nothing to do with this situation. That concerns making a contract which needs
    to be in writing to be enforcable to be enforcable anyway because if all the work that was done so far. The isdue is substantial performance which Peter's discussion is well suited to. Ben correctly raises
    the difficulty in measuring damages however, but discusses actual amounts to claim. Large amounts. If a contract calls for oak trim in a home project but the contractor installs pine, a dollar amount of loss can easily be assigned. Measuring the value of manipulable files against manipulable files financially is very difficult. The vast majority of work was done. Not anything near 50%. The images are usable. I wouldn't say some recovery is impossible but wouldn't so bold about the outcome. Better to concentrate on a diplomstic approach.
     
  6. “Perfect tender” means to perform a contract exactly as specified in every respect, without exception.
    “Substantial performance” means that the photographer, through no fault of his own, performed n a manner that varies SLIGHTLY from the contract's obligations. In cases of substantial performance, a court may determine that it would be unfair to deny full compensation, but may still order a partial reduction of the contract price.
    “Material breach” means a failure of performance under the contract which is significant enough to give client the right to sue for breach of contract. A material breach is one that is significant enough to destroy, in full or in part, the value of the contract. The award could be up to 100% of the contract price, but could be much lower.
    I think this case is one of "material breach". However even if a Court were to find that there was substantial performance, the photographer could still be civilly liable and could be ordered to forfeit a reasonable amount of the full contract price to compensate for his inability to deliver the raw files.
    In order for the contract to be enforced when there is substantial performance but not complete fulfillment of all stipulations, the photographer must have been unable to perform the exact duties in the contract THROUGH NO FAULT OF HIS OWN. This means a party can't simply perform differently or negligently and expect to receive full compensation, even under a finding of substantial performance. Something beyond the photographer's control must have prevented him from performing.
    The real problem in this case is determining the quantum of damages. To be recovered, damages must be proved with reasonable certainty. If the amount claimed is speculative, remote, imaginary, contingent, etc., they cannot be recovered.
    To avoid this problem, the client could have asked that specific "liquidated damages" be specified in the contract.
    "Liquidated damages" are an amount agreed to and written into a contract as the compensation to be paid if a party breaches certain parts of the contract. The Court can reduce the amount of liquidated damages if they are found to be unreasonable.
    The outcome before Judge Judy or Judge Joe Brown might be very different from the outcome before Judge Milian!
     
  7. The outcome before Judge Judy or Judge Joe Brown might be very different from the outcome before Judge Milian! [Benoit Evans]​
    As an aside, Judge Joe Brown on one of his episodes regarding a wedding photography case, ruled in favour of the plaintiff (the bride), because the Judge was a passionate hobbyist photographer who knew his Canon DSLR equipment better than the defendant (the photographer).
     
  8. As a start, a couple of links to support my above my comment:
    http://photography-on-the.net/forum/showthread.php?t=834495
    http://www.google.ca/url?sa=t&rct=j&q=&esrc=s&source=web&cd=4&ved=0CFkQtwIwAw&url=http%3A%2F%2Fwww.youtube.com%2Fwatch%3Fv%3D4Lz-07D5KoE&ei=QFcqUaSLPIedqQHBj4G4Dg&usg=AFQjCNEdg4Gy5cHNktFfaWDmnYQFQHUQ6g&sig2=z8zL9Q8LcfWSp45rKlZJ9w&bvm=bv.42768644,d.aWM
     
  9. The question I have had to ask myself when somebody stole and used my pictures. Was pursuing it:
    • worth the emotional effort
    • The use of my otherwise productive time
    • The expense
    • the value of the recovery
    • Legal and court fees?
    It was not worth pursuing in more than one instance that applied to me. This is what you have to ask yourself IMO. It may taint what otherwise was a nice day. But that's up to you. The last thing I want to do is become obsessed over a wrong that in the long run had no effect upon my life or well being.
     
  10. While I'm not a lawyer, I hope your photographer has included Errors and Omissions (E&O), in his insurance. That said, we all make mistakes. I've shot JPEGs when I intended RAWs before, for my own projects. So I know it's a very possible oversight, and certainly during a busy wedding day. Fortunately, those shots were properly exposed, and I didn't have to re-shoot.
    With regards tot he contract, was any additional fee assessed because of providing RAWs? That is, if the the RAWs were not included, would his fee have been the same? If not, then did he provide an itemized list so that you know the exact amount in question?

    More importantly, you admitted to being happy with his services and while you have his apology, you have the power to pursue him. But, you also have that same power to forgive him as well.
    Just a thought.
     
  11. >>>>A material breach is one that is significant enough to destroy, in full or in part, the value of the contract. The award could be up to 100% of the contract price, but could be much lower. I think this case is one of "material breach".<<<<

    Its not going to be a subjective standard unless the contract specifically made it contingent for payment, not just mentioned as a specific term. It won't help when the images are suitable and being used and enjoyed. If they weren't, we would have almost certainly been told of it as well.

    >>>>the photographer must have been unable to perform the exact duties in the contract THROUGH NO FAULT OF HIS OWN. This means a party can't simply perform differently or negligently and expect to receive full compensation, even under a finding of substantial performance.<<<<

    I wouldn't be overly reliant on quick Google search results which don't get in to trends such as a willful or fraudulent standard and where the utility of the performance is being enjoyed such as in
    Murray's Iron Works. v. Boyce 71 Cal.Rptr.3d 317 (2008) where the work was "beautiful". I'm pretty sure the images and files are not being sent back to the photographer in disgust for being useless and ugly. I also doubt receiving jpegs has resulted in no tinkering with someone so "handy with Lightroom". Yes, raw is better but, it can't be said that the images are ruined.

    Again, we are too focused on legal issues rather than how to resolve the issue in a business like manner. Peter had a good suggestion however.
     
  12. A practical response: Not knowing how much you invested, and how much you could expect to receive in a settlement or judgment, it's difficult to judge whether it would be worth the conflict. As a professional, I would much rather a client address the breach and negotiate a private resolution, especially if it was not an intentional act. I would also suggest a little grace as it seems that everything else in this arrangement is currently positive, and fueling a negative emotions in reference to your wedding day is not going to do you any good. Another thing to consider (sad to say) is that the photographer may not know the difference between RAW files and "raw" or untouched JPGs. There are a lot of amateurs entering the field and his ignorance could have caused a problem here if he thought he was living up to the contract. I'm not offering justification, just possible explanation. The red flag for me is that he offered RAW files in his contract, which is highly irregular. I would ask for a concession that allowed him to save face and deliver an equivalent value in your eyes.
     
  13. Well, you really need to see a lawyer. I think the notion is correct that if an average judge sees you got pretty good photos he's gonna say "where's the beef" regarding Raw vs. Jpeg. I understand your frustration and find it a little hard t believe the photog would just forget to set his camera to raw unless he's taking too large a workload for himself. I have to wonder if it's really worth the trouble for you. On the other hand you could "jawbone" the photog and try to get him to make a settlement that will work for you.
     
  14. James -
    Have you talked to the photographer and determined that they truly don't have the raw files? If not, that would be my first suggestion.
    If they don't have them then the question becomes, what's it worth to you for non-delivery? If you paid a premium over and above the normal rate for the photographer based on them providing raw, you may have a case. One of three things happened if they say they no longer have them - 1) they deleted them; 2) they didn't shoot in raw (happens on occasion, but most wedding shooters check, then check again and then a 3rd time to make sure they checked the first 2 times); or 3) they had a hardware failure which damaged the files. A fourth possibility is that they ingested the photos into lightroom, deleted from their cards, and converted to jpeg, all in the same step. (Unlikely, but possible, as most photographers don't trust a tool and tend to keep backups.)
    If they do have them - why are they suddenly not giving them to you? Are they that bad?
    Again - all of these are questions you can and should ask before thinking about court. If it were me, I'd be calling them, asking these questions, and then depending on the answers - asking for the premium paid for RAW files back.
    Dave
     
  15. And if you do choose to go to court, keep in mind that you may have the added expense of hiring an expert to testify in order to educate the judge about the difference between JPEG and RAW so that you can get around the "substantial compliance" defense that will be raised by the photographer.
    Look into the "perfect tender" rule too, as it requires a perfect tender of the goods purchased in a contract for the sale of goods, under the UCC, which is the law all over the USA. But query whether you are dealing with goods here or services. The perfect tender rule does not apply to services. And if I recall my first year contracts class correctly, if you get an imperfect tender you must reject it in order to use the rule. If you accept the imperfect tender (by accepting the jpegs) then I think you have waived the perfect tender requirement. Check with a local lawyer on this.
     

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