Like the cream I use for my rash that won’t go away, I like to keep this blog topical. What good is an online resource of legal news and education otherwise? Unfortunately, I’m about six months too late on #weddingphotogate. Still, what this post lacks in timeliness, it makes up for with potent legal analysis. In short: Quick acting? No. Potent? Yes. Kind of like the cream I use for my rash that won’t go away.
Let’s get started.
OUR STORY BEGINS……
A long time ago, a Maryland couple (the “Couple”) hired Carly Fuller Photography to be the principal photographer for their Autumn 2015 wedding. According to the language of the contract, the Couple agreed that “Carly Fuller Photography is the exclusive official photographer retained to perform the photographic services requested in this Contract.”
Sometime thereafter, the Couple hired DJ Ken Rochon of Absolute Entertainment to be the wedding deejay. DJ Ken is no rookie, performing at over 400 events a year. Not only does he get the party hype with dope beatz, but he also takes photos on his professional camera equipment. And let me tell you, his gear is pretty top notch. I’ve seen it. He’s not using your hipster neighbor’s 1988 Polaroid.
At no point prior to the wedding did the Couple inform DJ Ken that Carly Fuller Photographery was to be the “exclusive official photographer.” As best as I can tell, DJ Ken’s own written contract does not address the issue of photography at all. I think we can also safely assume that the DJ Ken did not inform the Couple at the time of contract execution that he intended to take his own photos of the wedding.
Anyway, the Couple’s wedding was no different than any of the 399 other events DJ Ken did that year. By all accounts, he photographed most of the day’s events. Images were taken throughout the venue, not just behind the deejay booth. Ceremony, reception, first dances, chicken dances, cake cutting- the whole deal. You want posed? He got posed. You like candid? Look at Aunt Lashonda eating that burrito.
Did all that running around negatively affect DJ Ken’s performance as the deejay? Absolutely not. The Couple sang his praises with a $300 tip.
At some point during the day, Fuller approached DJ Ken. Fuller informed DJ Ken that she was the exclusive official photographer for the event and requested that he discontinue taking pictures. His photography was clearly interfering with her work, since he had “photobombed” several of her shots. However, she kindly offered to share her images with him after the event. Probably through clenched teeth.
Apparently, DJ Ken said something along the lines of “talk to the hand…..Oh wait, you can’t talk to the hand because the hand is busy holding a Canon Mark III.”
Luckily, no violence incurred and the evening finished without further incident between the two.
The following morning, and with the Couple’s express permission, DJ Ken shared approximately 232 of his images onto the Facebook page of The Umbrella Syndicate. The who now?
“The Umbrella Syndicate is a social media consulting company dedicated to Amplifying through viral campaigns, events, promotional photography, branding, and more. We make sure your message is heard. The Umbrella Syndicate has six functions: Branding, Production, Photography, Publishing, Events, and Promotion, which are the functions used to amplify your message.”
According to DJ Ken, The Umbrella Syndicate has promoted hundreds of events in the past four years. Posting pictures of an event on their website, in other words, ain’t nuthin’ but a thang.
DJ Ken’s post explicitly provided that Carly Fuller Photography, not he, was the event’s official photographer. He even posted a link to her website. Fuller was not super pumped about that.
Guests began tagging themselves, commenting, and sharing the images. So did thousands of other photographers, wedding vendors, randos, and trolls.
Word got back to the Couple who were still on their honeymoon. They directed DJ Ken to remove the images. He did. Probably through clenched teeth.
FIGHTERS TO YOUR CORNERS….
So, after time to chew on it, what did each have to say?
“If everyone at the event has contributed to the event, they should be allowed to take pictures of what they contributed to the event, i.e., created at the event. And a photographer, although they are artists and they are creators after the event…they are the one vendor there that are just there to capture the event.” Simply, “I have every right to capture that love.”
In fact, only Commies prevent others from photographing love. “I am making it my role as a wedding professional to inform brides this [exclusivity] clause is dangerous and unnecessary.” He adds, “signing a contract with a clause like this literally takes the ability of everyone to share his or her experience on social media.” And he’s totally serious. DJ Ken started an organization called “Freedom to Capture Love,” a group that promotes the freedom to capture happiness and love and share it on social media.
For Fuller, our rights are defined by our roles.
“We all should just do what we were hired to do… Each of us has a right to do our job and deliver the quality our clients expect. We have a right to be able to perform our duties without another professional interfering with the process.”
“Professional wedding vendors should respect the wedding photographer’s exclusivity agreement and stay away from shooting and sharing photos themselves….Another vendor’s marketing needs do not supersede those rights.”
For the record, I think that several of these points are valid. But, it shouldn’t really matter what I think. The law is all that matters. And what is the law?
WHAT ARE THE CLIENTS’ RIGHTS TO HAVE THE EVENT PHOTOGRAPHED?
The average wedding is considered a private event. As host of the private event, the paying clients are the King of the Castle. The Big Cheese. The Head Honcho. The Numbero Uno. All present, as either a guest or a vendor, are there at the clients’ discretion and prerogative.
At the most basic level, the clients may control what photography may occur at their private event. Some even discourage or forbid guest photography or phone use of any kind. Their enforcement power if someone breaks that rule? The couple may instruct them to stop. Offenders may be kicked out.
Certainly, the clients have a reasonable expectation under the law that professional photography will not be used by anyone without permission (Also, keep in mind that we are talking about regular folks here. Angelina Jolie and Brad Pitt’s wedding has a different set of rules because they are news-worthy celebs). The venue and the clients can assume that professional photographers will not show up and just start taking pics. Such persons would be trespassing, or at least be acting beyond the scope of any license or right they might have to be present.
Professional photographers, generally through a written contract, can bargain for the right to photograph the wedding. This is what happens when principal photographers sign up the clients. Ultimately, the clients provide permission to attend and photograph the wedding, along with some money, and the principal photographer agrees to provide photographs.
WHAT IS EXCLUSIVITY AND WHY HAVE IT AT ALL?
Even still, the principal photographer can bargain for exclusive rights to photograph the wedding. Principal photographers have many different reasons for negotiating exclusivity.
- Decrease Competition. An exclusivity clause, at its core, aims to prevent the clients from retaining more than one principal photography crew. So, for example, when the parents prefer another photographer to the one selected by the couple. Or, if the couple themselves are split on the particular style, and seek photographers with distinct visions.
- Increase Product Value. It should be no surprise that professional photographers make their living selling photographs. By eliminating other professional photographers at an event, the value of the photos necessarily increases. This is particularly the case for weddings in high value or luxury venues, or in exotic locations. Or, quirky circumstances (think steampunk, military, or Star Wars weddings). Such photographs are often sought after by third parties, the competition, colleagues, and other vendors. Being the gatekeeper is highly valuable and can set one portfolio apart from another.
- Working Environment. The ability to set up and execute shots without worrying about someone else coming along and messing it up is essential to a principal photographer’s performance. I was once at a wedding in which the principal photographer would set up the shot, then have to get in line behind the 8 other photographers present (secondary pro photographers, set photographers, Uncle Bobs, and others). Obviously, such conduct severely cuts down shot count and picture quality for the principal photographer.
The scope of the exclusive rights, that is, the degree to which others are prohibited from taking pictures, will very, very, very, very, very, very, much depend on the wording of the contract.
Although an agreement to be the “exclusive official photographer” is super vague on its own, most judges would probably agree that this, at a minimum, prevents the aforementioned scenario wherein two separate professional photographers are hired to shoot the event.
But that is an easy call. How would a court interpret this exclusivity clause with regard to 1) Uncle Bob with professional gear or 2) DJ Ken with professional gear? THERE IS NO BRIGHT LINE RULE. Each case will depend on the facts, and again, on the wording of the contract. One trial judge might say “yes.” Another might say “no.” If the judge is from Texas, they might not say anything at all (they shoot at the wall, spelling out the verdict with bullet holes).
CONTRACT LAW VS. THE RIGHT TO CAPTURE LOVE
Using the rules of contract interpretation, let’s look at how a court may approach #weddingphotogate and the Uncle Bob scenario.
Whenever possible, the Court is going to look at the wording of the document in order to ascertain the meaning of the contract. Put another way, the judge is not going to look at other documents in order to figure out the intent of the parties. The judge will attempt to figure this out by looking exclusively at the contract itself. Unfortunately, all that a judge has to work with in this case is the phrase “exclusive official photographer.” There is no follow-up sentence that illuminates the scope of exclusivity or defines what “official” means. Nor does there appear to be another section in the contract in which you may infer further meaning.
So, looking only at those three words, I do not think it’s unreasonable for a judge to determine that being the “exclusive official photographer” simply means that there shall be no other principal photographers, i.e., persons that have been paid specifically for photography services. Since DJ Ken and Uncle Bob do not fit into that category, both would be free to take pictures with professional gear. Sort of like how Budweiser is the official beer of the Super Bowl, but you can still drink a Schlitz if you want. Just watch out for the bull.
On the other hand, a judge could no doubt find that “official” is really a synonym for “professional,” or more specifically, “person with professional equipment.” Obviously, if that is so, then DJ Ken and Uncle Bob are out.
Where the plain meaning cannot resolve the issue, then courts (again depending on the wording of the contract) can look to other evidence regarding the intent of the parties, including testimony regarding reasonable expectations and industry practice.
This is where I believe that Fuller may pull ahead. The common denominator connecting the above-mentioned rationales for having exclusivity in the first place (decreased competition, increased product value, etc.) is to prevent others from taking professional quality photos. This includes guests, vendors, the venue, your mom, or anyone with similar quality gear and skillset as the principal photographer.
Professional quality photos taken at the event by someone other than the principal photographer necessarily decreases the value of the photographs taken by the principal photographer. That is not rocket science. Couples may be less inclined to purchase photographs from the principal (depending on the agreement) when they are given equivalent images for free from the DJ. That goes for other vendors, third parties (think Hallmark, the Knot, etc), guests, and family members.
If the court agrees with that rationale, then Fuller is probably the winner here.
WHAT ABOUT THE GUESTS?
The exclusivity clause in this instance almost certainly would not apply to guests with smart phones. In theory, camera phones wielded by non-professionals do not produce the same quality photographs as the principal photographer. Those images are therefore not a threat to the principal photographer’s bottom-line or work environment.
Yes, exclusivity clauses can be drafted to prevent anyone and everyone, using any type of equipment, from taking photos. Essentially, the couple would be agreeing not only to have a “no cell phone/no camera” policy at the wedding, but to enforce it on behalf of the principal photographer throughout the event. But, in reality, few people are going to agree to that or monitor guest activity. I mean, is a couple really going to kick out Aunt Edna because she wanted to get a photo of the cousins all together for the first time since that trip to Yosemite? No.
So, can it be used? Yes. Should it be used? Maybe not. Kind of like the cream for my rash that won’t go away.
WHAT ARE THE RIGHTS OF THE PARTIES?
We understand that only a judge or jury can ultimately determine whether Fuller’s contract is enforceable against DJ Ken. So let’s talk about what would happen if it was. How would this affect any potential legal claims?
First, Fuller has a breach of contract action against the Couple (again, we are assuming that the exclusivity clause is enforceable against DJ Ken). The Couple breached the exclusivity portion by allowing another photographer to shoot the wedding. Regular readers of this blog know that compensation for breach of contract actions is called expectation damages. Expectation damages are another way of saying the money that one is out due to the breach. You can read more about expectation damages here, here, and here, or watch a video of me rapping about it here.
In a breach of contract action against the Couple, Fuller will need to quantify, i.e., place a money value on, the injury. Essentially, what is the value of the 232 images that DJ Ken took, and how much loss was incurred to Fuller’s bottom-line, in both potential sales and good will, when the images were posted? Fuller may prove her case in various ways, including showing profit from similar events and the loss of leads over a certain period.
Based on the limited wording I have of the contract in this example, Fuller almost certainly would be confined to pursuing a claim only after the wedding. Fuller probably would not have lawfully been able to walk out of the event upon seeing DJ Ken. Generally, unless a breach is viewed as “material,” meaning, a huuuuuge problem, then most of the time the parties have to continue performing until the contract is completed. Like when your landlord won’t fix the lock on the bathroom door. Sure, it makes you paranoid that someone is going to barge in while you’re deucing, and you therefore do the long lean over to hold it closed, while shouting “OCCUPIED!” over and over. But this doesn’t mean you can just stop paying rent until he fixes it.
This is not to say that an exclusivity clause cannot be written to make violations “material” and allow the photographer to walk off. Those exist. This is not likely one of them.
Fuller would NOT have a breach of contract claim against DJ Ken. In order for one party to have a breach of contract claim against another party, there would have to be a contract. Here, DJ Ken and Fuller never exchanged promises. Middle fingers, probably, but not promises.
Here’s an extra bit of spice for the sauce. What would happen if Fuller’s exclusivity clause was enforceable against DJ Ken AND DJ Ken had written authorization from the Couple to take photos? In that case, the Couple could be a defendant in a breach of contract case by Fuller AND DJ Ken. DJ Ken would seek similar damages as Fuller.
WHAT ABOUT TORTIOUS INTERFERENCE WITH A CONTRACT?
People are not allowed to improperly interfere with the performance of duties under a contract. Most states call this claim, “tortious interference with a contract.”
Generally, you have to have all of the following elements: (1) the existence of a contract, (2) the defendant’s knowledge of that contract, (3) the defendant’s intent was tortious, (4) the conduct caused the party to breach, and (5) a loss suffered by the plaintiff that was caused by the defendant’s tortious conduct. Appleton v. Board of Education, 254 Conn. 205 (2000); Ventas, Inc. v. Health Care Property Investors, Inc., 635 F.Supp.2d 612 (W.D.Ky.2009); Mahrle v. Danke, 216 Mich.App. 343 (1996).
These claims can be kind of tricky to understand and are very nuanced from jurisdiction to jurisdiction. Here’s a simple example:
Awesome Salesperson: “Hey, guess what? I got a job as the head of sales at ABC Incorporated!”
Evil CEO of Evil, Incorporated: “For real? You don’t want to work there. They are about to be shut down by the Feds for fraud. They also have hundreds of overtime wage lawsuits against them. Come work for Evil, Inc. and we will pay you double what ABC, Inc. is paying you.”
If the Evil CEO of Evil, Inc. lied about the fraud and overtime wage issues for the purposes of luring Awesome Salesperson, then she may be liable for tortious interference. (did you think that Evil CEO was a man? You are sexist).
Does a principal photographer with an enforceable exclusivity clause have a claim for tortious interference with a contract against a vendor who takes professional quality photos at the event? Probably not.
First, there is the matter of malicious intent. The principal photographer would have to prove that the vendor approached the clients (1) with full knowledge of the exclusivity clause and (2) convinced them, through some type of subterfuge, to allow the vendor’s photography in spite of such knowledge. The likelihood of such intent arising in a principal photographer-vendor photographer dispute is slim.
Even where the vendor has knowledge of the exclusivity there may not be requisite intent. In the #weddingphotogate example, Fuller approached DJ Ken and said “I have exclusivity.” Does this mean that DJ Ken, or any other vendor, should take the photographer’s word for it? This assumes that the principal photographer even understands what the contract actually says. We’ve discussed the power of contract language. Unless the contract is explicit, only a judge or jury would have the final say if the “exclusivity” applies to the vendor photographer.
Second, tortious interference claims generally require that a material breach of contract occur. In other words, that the vendor photographer’s conduct causes the clients to materially breach the exclusivity clause of the principal photographer’s contract. As stated above, unless Fuller’s contract explicitly provides otherwise, the Couple’s allowing DJ Ken to photograph the wedding is a breach of contract, but probably not a material breach.
This is not to say that you can NEVER have a claim for tortious interference with a contract in a #weddingphotogate situation. It will just depend on the circumstances.
HOW PRINCIPAL PHOTOGRAPHERS CAN AVOID WEDDINGPHOTOGATE
- Communication– The principal photographer is generally the first professional hired for the wedding. At the initial meeting, the principal photographer should talk openly about the exclusivity clause, whether it applies to other vendors, and why it is important. The client should be instructed to look out for photography clauses in other vendors contracts, and to mark through them where possible.
- Explicit Language– Photographers should not leave anything to guesswork. It is advisable to place plain language detailing what type of photography is excluded in the wedding, and how the client is supposed to monitor such photography. Bottom line, having an excellent contract is crucial.
HOW VENDORS CAN AVOID WEDDINGPHOTOGATE
- Communication- See above.
- Client Warranties- Vendors can certainly bargain for the right to photograph weddings. However, it is advisable that the vendor have the client warrant or agree that by providing such authorization, they are not stepping on someone else’s toes. Duh.
At the end of the day, principal photographers will probably not want to sue clients to enforce an exclusivity agreement. So why even have it at all? Well, to function as a primer for the rules of engagement and to start the conversation with clients.
The moral though is that #weddingphotogate was a pickle that could have been avoided with a little bit of communication between the vendors prior to the event. You know, a little TLC before TCB.
Anyway, I hope this clears everything up. Unlike the cream I use for my rash that won’t go away.