So, this wedding photographer hires a second photographer to assist and help photograph a wedding. Lots of things happen very fast at a wedding and you only get one shot at it. Having another photographer there is a huge help and frankly, smart business at a time when professionals have to separate themselves from “Uncle Bob” and his “good camera”.

Wedding ends, assistant gives photographer the picked photos, photos are delivered to bride and groom, yadda, yadda, yadda, all seems hunky dory. Until the photographer finds out that the assistant, also posted ALL the photos from the wedding that the assistant shot on the assistant’s website, and also watermarking them with the assistant’s studio name. Then photographer sees that the client, with whom they had a contract, has some of those images on their social website page. Uh-ho Andy, all is not good in the Emerald City.

To top it off, while the photographer had a contract with the bride and groom, there was no contract with the second photographer/assistant. Photographer contacts the assistant requesting that the photos from the assistant’s website be removed and guess what? Second photographer says in lieu of a written contract,  “I shot the photos, I own the photos, I can do as I want. You may “go fly your kite”. Nice.

Jack hears of this on a photography forum, where other photographers chime in suggesting that without a contract, photographer is basically out of luck and chalk it up to the cost of learning a lesson.

Unfortunately, that may not be true. There are several options available, but before we tell you what they are, let’s review what the photographer did wrong.

Mistake #1- Not have a written contract with the second shooter/assistant setting forth the details, terms and conditions of the assignment. Big mistake. That would have solved everything.

Mistake #2- Asking other photographers for advice. Photographers are not lawyers. If you woke up with a green growth on your neck, would you check first with other photographers or a physician? If the IRS sent you a letter that they would like you to come in for a “chat”, do you seek out the advice of other photographers you don’t know from Adam online or contact a CPA? Hopefully you chose correctly in these two hypothetical situations.

Mistake #3- Not talk to a real intellectual property lawyer or even a competent business lawyer.  Photographers complain when people don’t hire a “real” photographer for a shoot, but will not go to a “real” professional when they need legal advice.

With that all said, the photographer is not out of luck in such a situation, no matter how many photographers online say differently. Depending on what your state laws are (another reason to contact a lawyer), you DO have options in such a situation.

In “real” legalese-

The assistant can be sued based on one or more legal theory(s) of bad faith, breach of (oral) contract, appropriating or diverting an employer’s business opportunity, misrepresentation, fraud and/or many other legal theories.  Which one (or ones) apply, depend on the unique circumstances of each case BUT A. such behavior is actionable and B. you are gonna need a lawyer.

In short, a letter from a lawyer, which is not expensive, will have a great deal more impact than if you as an individual write a letter. Don’t be offended and please trust us when we say that photographers are not lawyers and do not know what to write. Lawyer’s letters make people sit up and listen. [B]Do not[/B] send your own letter “threatening” to sue. Whenever someone says that to Jack, he laughs, because 99% of the time it’s an empty threat. If he hears from a real attorney, than it’s a different story. You should follow the same logic. Jack has found that a letter from Edward C. Greenberg, attorney at law, means a heck of a lot more than a letter from Jack. The difference between Jack’s letter and lawyer Ed’s letter, as Mark Twain often said, is the difference between a lightning bug and lightning.  Most lawyers really can write a proper letter in situations like these.

Also, many times people write their own letters, they will write something that a lawyer will yell at them for, because it’s something that comes back to bite them in the rear. DO NOT send a letter, do not call.  Suck it up.  Hire a lawyer.

Contact a local a competent business lawyer. Preferably, one who litigates (at least occasionally), as this type of case does not require an IP or copyright specialist.  The legal concepts at play are routine and common among many industries and any business lawyer should be utterly familiar with them. 
Just spend the bucks for a lawyer to write a letter for you if you find yourself in such a pickle. You’ll feel a whole lot better.

While the lawyer is on the clock, it’s a good idea to create and/or fine-tune your contracts and paperwork with your assistant(s) contract, don’tja think?  It might cost some money now, but in the long run, it will save you a lot of money and save you from eating your own liver.

Call a lawyer.

Jack and Ed