Why do photographers get sued?
There is a lot more to running a photography business than taking beautiful images for clients or photographing models. Photographers should be up to date on the types of lawsuits that many photography businesses face. You can find everything you need to know to protect your business against legal issues with our list of reasons that photographers get sued.
Top reasons that photographers get sued
Breach of contract
One common reason that photographers get sued is for breach of contract. A breach of contract means that one or more of the parties fails to honor a portion of a binding agreement. For photographers, this can include a variety of situations that violate the terms you laid out with your client. However, one distinction you should be aware of is whether the breach is material or minor.
To put it simply, a material breach is a bigger deal than a minor breach of contract. A material breach means that the breaching party failed to deliver on a substantial part of the contract.
In the case of photographers, an example of a material breach of contract would be if the photographer failed to deliver the images to the client.
A minor breach of contract refers to a situation in which the breeching party still delivers the contracted service, but there was some variation in the agreed-upon contract. For example: You were hired to shoot a wedding for five hours but you shot for four and a half instead.
It’s important to keep in mind that you can often avoid going to court by communicating with your client. Especially if it is a minor breach of contract, try reaching out to see if you can remedy the issue. It just might be enough to avoid ending up in front of a judge.
Trademark and copyright infringement
You’re probably aware that as a photographer, you own the rights to your images, and if someone were to use your image without asking you, that would be copyright infringement. Well, the same goes for you, as a photographer, if you were to take a picture that included a copyrighted work, such as a sculpture or painting.
The rights under copyright laws are attached to the work the moment it is created. If you photographed a famous sculpture and then attempted to sell the image, the artist could sue you. A common way to defend yourself in these types of cases is to argue that your photograph falls under ‘fair use’ qualifications. This allows you to use copyrighted work without asking permission if your photograph serves to "comment upon, criticize, or parody a copyrighted work."
To be safe, it’s best to ask permission to photograph copyrighted work.
In a similar vein, photographers must be careful of trademark infringement. The purpose of a trademark is to give the owner of the trademark exclusive rights over a phrase, logo, slogan, or design that represents a product or service.
You can technically use a trademarked work in your image without asking permission if it is not being used for commerce, but it’s a slippery slope. If you use the trademark in your image and it causes ‘consumer confusion’ you could be sued. This means that if your photograph is likely to confuse the public about who the trademark belongs to, it could lead to a lawsuit
Here’s an example where a trademarked work is used appropriately in an image: You’re hired to take photographs of a family reunion at a Hilton hotel. You take a shot of the whole family outside of the hotel under the Hilton logo. In this case, you would most likely not be violating trademark laws because the image isn’t causing consumer confusion around the association of the logo.
You could be sued by a model if you use an image you took of them for commercial purposes. The lines of what counts as commercial and what is otherwise labelled as ‘editorial’ are a bit blurry, but here’s what you need to know.
- If you take an image of a person or people and you only use it for editorial purposes, you cannot be sued and thus you don’t need a model release form. An example of editorial use of an image would be if you sold an image of a man at a riot to a newspaper that was writing a story about the riot and the image was used alongside an article.
- If you use the image for commercial purposes, you can be sued. For example, if you take a photograph of a woman boarding a train and later sell the image to a luggage company who then uses it to sell their products, you can be sued by the model if this wasn’t outlined in the model release form.
A note on street photography
If you’re a street photographer, you probably have the most legal leeway, but you should still know the risks. Although you’re legally allowed to take pictures in public spaces, laws vary by state. In general, you do not need model release forms when snapping pictures of people on the street. Of course, there are cases of people seeing themselves in a photograph online and suing the photographer, but as long as you’re not using the image for commercial use, you should be fine.
That being said, be respectful. If someone indicates that they don’t want to be photographed, it’s best to obey their wishes, and you will be more likely to avoid legal issues.
Other things that street photographers should be aware of so that they don’t get sued, is knowing what is private versus public property and making sure to not disturb the peace while taking pictures. Some places commonly assumed to be public are actually private. Airplanes and shopping malls are two examples of private places that could be misconstrued as public. There are many other places that you may not have realized are private, so do your research before taking pictures.
And lastly, if you’re planning to photograph in an area that is heavily populated, check to make sure you don’t need a permit to shoot there. In busy cities, tripods are sometimes prohibited because they can disrupt the flow of traffic or even pose a safety hazard.
A note on wedding photographers
Since the wedding industry is rapidly growing, wedding photographers should be aware of some of the most common reasons clients sue. Before you agree to take on a gig photographing a wedding, make sure you’re aware of some of the reasons brides and grooms sue photographers so that you can protect yourself in the contract.
- Poor image quality
- Photographer was a no-show or late to the event
- Delayed submission of photographs or failure to submit photographs
- Lack of photos. For example, a couple requests specific photographs of an elderly aunt that came from out of town, however, the photographer fails to take enough photos to satisfy the couple.
- Last-minute cancelation
- Unauthorized use of client photos
Here’s how you can avoid getting sued as a photographer
Read our best tips to help you avoid the types of lawsuits photographers often face.
- Get photographer liability insurance to stay protected. Insurance for photographers can cover damages due to alleged failure to provide contracted services or providing them incorrectly. If you work on someone else’s property or photograph clients in your studio, you should consider general liability coverage. A business owner’s policy will also cover your cameras, lighting, and other equipment. Or, you may need professional liability insurance, sometimes called errors and omissions insurance (E&O insurance).
- Have written contracts with clients and models. You can even go one step further and have an attorney draft those contracts. When possible, always use model release forms.
- Make sure you’re not photographing a copyrighted work or using a trademark improperly.
- Research the area you want to shoot in ahead of time. You might need a permit.
- Always communicate with your clients, especially if you’re shooting weddings or similar events. A little communication can go a long way toward preventing both parties from having to show up in court.
Learn more about how Hiscox can help protect your small business.