by
Mary Fisk-Taylor, M. Photog., Cr., CPP, ABI, API
www.hayesandfisk.com www.reallifestudios.net
I want to take a minute and talk to you about something I know a lot
about... MAKING MISTAKES. I could spend time sharing some
marketing ideas, sales plans and even discuss posing and lighting, but
the topic that I feel very confident about discussing right now concerns
mistakes I have made along the way.
For over 15 years, I’ve co-owned a photography studio and recently
opened a new studio with my family. During that time, I’ve spent
a considerable amount of time and energy to insure success by
having appropriate retainers, contracts and model releases, as well
as maintaining our memberships in our Professional Photography
Associations, mainly the Professional Photographers of America. I have
attorneys, mentors and accountants and I’ve felt very confident in my
efforts and accomplishments... until March of 2010.
It was at that time that I received a Summons from the County Sheriff.
Much to my shock, a client was suing me in small claims court.
Needless to say, I was very upset by this situation. I reviewed the claim and remembered the client, her session and her complaint but never thought she would have the nerve to sue me.
We had photographed the plaintiff’s daughter’s senior portraits back in the summer and, from the very beginning, they were difficult clients.
However, in an effort to satisfy the client we worked through broken
sales appointments, a grumpy teenager and even a re-shoot for the
yearbook photo due to a hair malfunction. I really thought we had
handled this with the utmost customer care and service. After all, we had truly bent over backwards, even honored a last minute and suspiciously bogus gift certificate just to get through this session.
When the client finally ordered the portraits, we all walked away from the studio that day pleased. They finally agreed with each other on the order, finally approved the teenager’s hairstyle, picked their portrait sizes and paid their money. Great! We were on the home stretch now. All we need to do is get the artwork finished, get the portraits printed and deliver this order. No problem, right? Wrong!
At our new studio we include the image on a DVD with printing rights, so when we delivered the portrait order three weeks later. We also delivered a DVD to the client. She picked them up, looked them over, shook our hands and drove away. But, two weeks later we received an irate phone call. The client wanted us to reprint all of her portraits. Of course, I was surprised and wanted to know why, what was wrong or what mistake had I made? Could it be the color, artwork or mounting?
What could it be? As it turns out, this client loved the portraits. The only complaint was that I had “cheapened” the work with my logo/copyright in the right hand corner of the portraits.
I was speechless, after 16 years in business I had never had this
complaint and quite frankly did not even know what to say. I proceeded to explain to the client that this was our logo, our copyright and just like every portrait on display in our studio, every image in our mall displays, every image I had ever printed for a client we always included this signature. I told her that if there were any defects or flaws with the prints I would be happy to make new portraits for her but I was not willing to print any portraits without this logo. She hung up on me. So, a client that wanted me to print portraits without a logo/copyright on them sued me. When the summons arrived I immediately contacted PPA (Professional Photographers of America) and worked via telephone and email with the Indemnification Trust program. The attorney, Mr. Stephen Morris and paralegal that I worked with were amazing, and I cannot say enough wonderful things about them. They sent me great information and ideas, a complete guide regarding this case and how to handle a small claims court claim and were overall my biggest cheerleaders through this catastrophe. The day I arrived in court I felt very confident, I had all of my information from the Indemnification Trust attorney, I had a letter from my lab that explained the necessity of printing portraits with the logo/copyright on them, I had pictures of my entire studio with portraits all over the walls displaying our logo and I had my entire family by my side. I could not possibly lose this case, right? Wrong! I lost, plain and simple. I lost the case.
Now, in my opinion the judge was very grumpy and kind of mean but
she made things very personal in court, which I found alarming and
defeating. She actually said to me at one point that she has great picture of her kids from Portrait Innovations and they do not have tacky logos on them. TACKY, she used the word TACKY! Seriously she actually said that! She also told me that she would never buy pictures with logos on them because it is not her job to advertise for me. Regardless of all of this opinion she told me that unless I had my client sign something that explained to her in black and white that she would be receiving portraits with a logo/copyright on it then I was wrong in the eyes of the courts.
Obviously I did not have any such wording in my invoice, model release or sales contract that my client had signed. Never occurred to me in a million years that I needed such a thing. Assuming that this was my right as a business owner or even that it was implied by the multiple 14 Texas Professional Photographer samples displayed in our place of business was not enough. So, I had a choice to make, reprint everything without our name on it or pay the plaintiff a full refund, including the full cost of the bogus gift certificate and her stylist’s charges. I chose to pay the money because there was no
way I was going to print portraits without our logo/copyright.
I wrote the check and walked out of the courthouse so defeated. I could not understand how I even ended up defending what I felt was so right. I emailed the Indemnification Trust attorney’s office through PPA and Mr. Morris immediately responded with shock and disappointment. His support and follow up was really important and it did make me feel better. I felt even better when he told me that through my PPA membership and the Indemnification Trust I would be reimbursed for what it cost me minus my deductible. That was a great surprise and it made me feel somewhat better about the whole terrible situation.
Mr. Morris also sent me some quick notes and suggested that I add the
following to all of my invoices, sales contracts, etc., to avoid something like this in the future:
“Client understand and expressly agrees that the Studio (your name her) places its logo on the front of all final photographic prints it produces for its clients.”
We now have this on all of our paperwork and even thought I may not
run into this problem ever again our studio is at least covered on this
issue.
Maria Matthews, the PPA Copyright & Government Affairs Manager,
also contacted me. She sent me a very supportive email and wanted to
offer the following reminders: “On contracts, it is extremely important to make sure everything about your studio procedures/policies, and the nature of the assignment gets recorded. Establishing a paper trail is one of the best ways to ensure that both photographer and client are on the same page and have a successful relationship.”
She also had the following advice: “On the Trust... PPA members
should know the Trust is here to help when incidents arise. Since it’s
not insurance, there is no need to fear being dropped or experiencing
a sudden rate change. Unless a member tells us they are experiencing
difficulties with a client (whether or not the client has threatened or
filed a lawsuit) we cannot ensure they have the protection they need.
The sooner an issue is brought to the Indemnification Trust attorney’s
(Stephen Morris) attention there’s a better likelihood of a happy ending. Similarly, it is extremely important to ensure PPA members maintain their membership (i.e. stay current on dues) so there’s never a moment they are without a coverage.”
This was a lesson learned... learned the hard way, but learned. Now I
can look at this situation and understand why and how it happened and know that I am wiser because of it. I think that one of the best things that I got from this was a brand new appreciation for PPA and what my membership truly means to our studio and me. So, thanks PPA for your assistance and guidance through this journey of professional photography.
Mary Fisk-Taylor, along with Jamie Hayes, are frequent instructors
at the Texas School of Professional Photography. In their class, they
share the fundamentals that have helped them become established
as one of their area’s leading studios. Learn more about Mary and
Jamie and their class at www.TexasSchool.org.
