Question (from anonymous in Washington):
“Wedding photographer paid up front, won’t deliver. Is it better to go to small claims or hire an attorney?: We got married recently, and paid $800 to a wedding photographer that we found on Craigslist. We have a written contract, stating that photos (hi-res) will be delivered “in a timely manner, typically within 3-4 weeks”. The contract also states “The couple will have full rights to the digital photographs and will receive them on a DVD.”
It’s been five weeks and the photographer won’t reply to texts, emails, or calls. For two weeks she said the photos would be delivered “soon”, and “in the next few days”. She is now no longer replying. She has put a few photos on the site, but not all, and not hi-res.
My understanding is that I cannot compel her to give us the photos via small claims. Is it possible to sue for emotional distress or pain/suffering in small claims? Or should I hire a lawyer?”
Response (from Attorney Rob):
I’m sorry to hear that you have not yet received your wedding images.
You have a written contract with the Wedding Photographer in which she agreed to provide you Hi-Res (and I assume, edited) Images within about 3-4 weeks of the Wedding. In exchange, you promised to pay the Wedding Photographer $800.
Let’s consider the points you raise one at a time:
1. Currently, the Wedding Photographer may be considered in breach of contract, as she has not provided the images within the window that was promised in the document. However, at this point, this type of breach will most certainly not be considered ‘material’, and further, the law will allow a reasonable amount of time for the Wedding Photographer to ‘cure’ her breach. In other words, it is a little too early to talk lawsuit. It is not uncommon in this industry for edited, high-res images to take 8-10 weeks, depending on the number of photos. I have dealt with cases where the Wedding Photographer took 6-8 months to come through with photos!
It is understandable to be concerned that the Wedding Photographer is no longer responding to your calls, but this may be a sign that you are taking time away from him doing her job. I think that a Court would probably see it that way as well. Based on the fact that the Wedding Photographer has posted some pics, and has acknowledged they are coming, it is not a case in which the images have been destroyed or lost, but just that it’s taking longer than expected. So, you technically could sue him at this point, but your damages would be extremely, extremely low.
2. Let’s say the Wedding Photographer does take longer, even 8-10 months, to get your photos to you. Are you entitled to general damages of pain and suffering due to emotional distress brought on by the Wedding Photographer’s breach? Probably not. Generally, in contractual matters, an aggrieved party is only entitled to be placed in a position that he/she would have been in had the other party fully performed. Here, you should have a bunch of pictures of your wedding (and less $800). How would your damages be computed? Probably a refund of $800. In some rare instances, the Court approximates the cost of a “re-do shoot” and awards that amount. Nothing to compensate you for “pain and suffering.” I like to call it, “there’s no crying in contracts.”
Only in very rare circumstances, such as when the breach of contract is an accompanied by a tort (like, for example, if the Wedding Photographer punched you, misrepresented something, or shouted obscenities at you during the wedding), will the court allow “pain and suffering” damages.
3. OK, so what about “compelling” the Wedding Photographer to give you the images. This is what the law calls “Equitable Relief,” and when it pertains to compelling a party to a contract to perform under the contract, is called “Specific Performance.” I am not licensed in Washington, but if it is anything like Georgia, equitable relief is not granted in small claims court. Based on these facts, I doubt that the judge would grant specific performance, based on many things that would be too technical to get into.
Bottom line, I can completely understand your anxiety, but I think that it is premature to move forward with a lawsuit. Perhaps it would be better to send a certified letter requesting an update, and a date certain in which the photographs may be expected. If that doesn’t work, you can pay an attorney to draft a more stern demand letter. That can get the ball rolling.
I wish you the best of luck!
Moral of the Story: Generally, it is a good idea for wedding photographers not to guarantee a specific delivery date for photos, but to provide an approximation or estimation. This gives a little breathing room.