The article below was written by a friend of mine in the New England market. He has asked to remain anonymous, so we will respect that and only say that he is a damn fine photographer, and this story of determination against a client that had much more means, is a terrific read.
Before we jump into that, I want to plug the workshops. Best workshops ever this year. We study light from a “subject centric” approach and really delve into setups, why modifiers work differently on different subjects and a whole host of new concepts that will bring your knowledge of light, and your tools, to fruition. The site is Learn to Light and that is exactly what you will do. I am writing this from Sacramento where I just finished a workshop. I had three photographers who were brand new to any kind of lighting, and at the end of the workshop, they were lighting with multiple speedlights, balancing and controlling ambient and making some amazing shots. OK… commercial over. I try to keep it to a minimum, but every once in a while I do have to blow the marketing trumpet.
Now on to my buddies fight, and eventual win, with a client that refused to pay what was agreed on.
Here are his words:
I am a professional wedding and portrait photographer. I started my business in 2007, and have been making 100 percent of my income from photography for nearly two years now. As many professionals will tell you, there some are job we shoot because we love them, jobs that are so awesome we’d shoot for free. There are other jobs we shoot because they pay the bills. Or build relationships. Or have the potential to open other doors in the future.
Now, it’s not to say that that we’re any less committed to making extraordinary photographs for these type of clients, but at the end of the day, the check will be cashed and the photos delivered, and then we’ll never show them to anyone again. This is a story about how one of those jobs went wrong, costing me $5,000 in legal fees and uncollected revenues.
Despite still being relatively new to the industry, I try to do things the right way. I’ve read both of John Harrington’s books (along with many, many others on the business of photography), attended business workshops and I hire professionals (accountants, attorneys etc.) who have expertise in key areas where I do not.
Last summer I photographed a great wedding – everything about this couple was awesome. They were great to work with, adventurous, open to creative ideas for their photographs and never gave me a single moment of grief about the price of their wedding photography (which when all was said and done totaled just under $5k).
The father of the bride happens to own a fairly large “small” business in town, not too far from my studio. I say “small” because they probably have 50-100 employees and 7-8 figures in revenue annually. That’s small in the big pond, but large in small community kind of way.
A few months after the wedding, the bride called me and asked me if I could swing by the business to talk about doing some work for them. I’d love to, I told her, and had a meeting the following week.
In that meeting she outlined a plan for photography for the business that would require making many, many images over the course of the next year (many were outdoor images and needed to be photographed in various weather). She explained that her the company had just spent, “a ton” of money on their new website, and her father had charged her with populating the site with new photography.
For the sake of this article, we’ll call the daughter Mary and the father Mark, obviously not their real names. Now in her mid-30’s, Mary was in charge of much of the day-to-day operations of the business that had been founded by her father and his brother 40 years ago, though Mark remains the president of the company.
At our initial meeting, Mary explained that some of the images would need to be photographed as soon as possible, as they were time-sensitive (because of the holidays). Mary explained that it would take 30 days for me to be added to their billing system as a vendor, and because of that, I agreed to waive my typical up front collection of 30-50% of my fee. I agreed to this for two reasons. Mary had paid for her wedding photography without ever blinking an eye, and because of the time-sensitive nature of the photographs.
We scheduled a shoot for a few days out, and I put together a contract for Mary to sign. Because there were to be many, many days of shooting over the course of this project (which we both expected to last up to a year), we agreed that I’d invoice the company for each shoot as it happened.
I did ask Mary if she had an idea of what their total budget was for the project (something I always do when preparing an estimate), and she said that they didn’t really have a set budget, but that they really needed the photographs, and I was their guy.
To me, that’s the best case scenario right there. I was “their guy” and price wasn’t a deciding factor. Mary went on to say that she wanted to use me because we’d worked well together in the past, had a good relationship and she knew I was close by and would be extremely responsive to their needs.
MORE after the jump:
I’ll simplify things here to say that my contract essentially called for me to be paid $275/image plus expenses, with them receiving generous usage terms to the images. Far more generous than I’ve ever granted before or since, but as this would be a large job for a client I trusted, coupled with the fact that these images would have little to no resale value to me beyond this project as this is not the type of work I ever wish to pursue, I was OK with our terms.
A few days later, with a signed agreement in hand, we had our first day of shooting. By the end of that first day, we’d made just more than $5k in images. At that point I said to Mary, “Do you have a total figure in mind you’d like to spend on this project? If you can give me an idea of the total number of images we’ll be making, maybe we can revisit our terms and I may be able to reduce your rate somewhat. I think that perhaps this project is going to grow beyond what you’d originally anticipated and I don’t want to run out of money halfway through with more images to make. However, this is a conversation we have to have now, because once the work is done and invoiced, there’s nothing I can really do.”
Her response to that was, “______, we need these images. My father said we need these images. I can’t make them, you’re the guy.” Awesome, perfect, we were good to go.
Over the course of the next couple of weeks, on 5 separate shooting days, we accumulated a library of 58 photographs. Nearly $17k once sales tax was included. Each time we hit a milestone ($10k, $15k) I pull Mary aside and ask about budget again. Each time I received the same answer. “You’re the guy, we need these.”
After post production and delivery, I sent Mary and invoice for the full balance owed, payable in 30 days. During the process, I’d accumulated a series of photographs of the company’s employees that I thought would make a nice slideshow of the inner-workings of their business. I put that together and showed it to Mary, and she loved it. Raved about it. We talked about needing releases from the employees to be able to use the slideshow publicly as well as potential uses of it for the business and additional fees should they decide to use it.
A few days later Mary called me up and asked me if I could split the invoice into 3 payments, “So that our comptroller sees a 4-figure number, not a 5-figure number.” I agreed and sent 3 new invoices, due January 15, February 1 and March 1.
On December 30, Mary called and asked me if I could come by and show her father the slideshow. After viewing the slideshow Mark expressed that he wasn’t sure of the value of it, and didn’t see how it could be useful to their business. He then launched into nearly an hour of questions about my invoice. Why were they being billed $5k for 20 images when Mary had received more than 400 wedding images for the same price?
At this point I realized Mary had only shown her father the first of the 3 invoices. During the entire meeting, she sat silent, at no point mentioning the remaining balances due. I kept my mouth shut, thinking that 1) she’d step in and say something and 2) she knew her father far better than I and would take care of things on my behalf. Looking back this was clearly a mistake on my part.
I explained to Mark the difference between retail (wedding) and commercial photography. About how these images would make his business money and as a result had far greater monetary value to his business than wedding images, which are created essentially as a family record, or heirloom. He wasn’t buying any of it.
At one point in the meeting Mark asked Mary point blank, “Would you hire him again?” To which she responded, “Absolutely.”
The meeting ended with Mark looking at our contract and essentially telling me, “It looks like you’ve got me. I’ll pay you because I have to, but I can’t continue to use you at these rates.” I told him that was unfortunate but I understood.
After leaving the meeting, I immediately called Mary and asked her about the remaining invoices and why her father hadn’t seen them yet. She told me that the good news was that the first check had been cut, and that I’d receive that soon. She then said that she’d talk to her father the next day about the remaining balance.
The next day she called to say that she’d spoken with him and that he wasn’t happy about it, but she’d, “Keep working on him.” Mary was leaving the next day for her 3-week honeymoon abroad, but that I should receive the first check before she returned and we’d iron out the rest of the situation before the second payment was due Feb. 1.
On January 14th I called and spoke with Mark’s secretary, explaining that I had yet to receive the check and that after the next day, interest would begin to accrue. She told me that they had my invoice, but had been instructed by Mark not to pay it until Mary returned from her trip.
While numerous phone calls to Mary went unreturned the next week, the check did arrive, albeit 6 days late. Fine, I could live with that. At this point I began making detailed notes of every contact with both Mary and Mark, as I was starting to get nervous about the direction things were heading.
The next weekend (Jan. 30) I received a text message from Mary, asking if we could speak soon. The following day, Mary told me that Mark had went and found another photographer who had quoted him, “$400 in setup fees and $25-$60/image,” and that, “he has attorney’s, he’d take it (to court).” Mary said, “He even went as far to say, ‘Give the images back and get back the $5k we already paid him.'” She told him that wasn’t going to happen.
At that point, with things heading downhill quickly, I said, “In the interest of resolving this quickly and amicably, if you can get me $9,500 by Friday, I’ll take it. That’s a 14% discount.” Mary said she’d talk to her dad.
The following Monday (after my deadline), I received a phone call from Mark. “I’m just calling to tell you, I’m not angry. I loved what you did with Mary and Joe’s wedding photos, and they said you were very reasonable when it came to their price, but I can’t pay this. I wasn’t even made aware of there being a balance remaining until 3 days ago.”
I responded that, in essence, it wasn’t my fault that Mary hadn’t been communicating with him, and that Mary had had the initial invoice in mid-December.
Mark then said, “This (invoice) is way over budget, way out of proportion and quite frankly, abusive.”
After a few conversations with Mary over the course of the next week, in which she (claimed) she tried to get her father to agree to pay the invoice, and he had declined. She said he would call me himself.
When Mark called me next, I told him that I’d spoken with my attorney, and that while I did not want to litigate this, I would if I had to. That at this point we had to agree to disagree about the value, but that the contract was valid and I needed to be paid.
He then said, “If I thought the rate was fair, I’d pay it.” He even went as far as to agree that I’d upheld my end of the agreement, but that it was just too much money and he wasn’t going to pay me. He then went on to tell me that he didn’t think Mary, “Had the business sense your or I have.”
I told him that there were no secrets here, and that I didn’t force Mary to sign anything. I also reiterated the multiple conversations about budget I’d had with her, in hopes of avoiding this specific problem.
At that point I told Mark that I’d accept $7,500 (essentially what I’d pocket after paying an attorney 1/3 of a settlement reached in court.) He counter offered half that. I told him no thanks and that once I had to pay my attorney a dime, I’d no longer settle for less than the full balance I was owed.
A few days later Mary called to tell me that she’d been able to talk Mark up to $4,000, but that she knew that wouldn’t be sufficient.
I’m a strong believer that when you hire professionals, you take their advice. At that point, I’d reached a stalemate with Mark, and felt it was time to hand the matter over to my attorney.
After the attorney sent Mark a demand letter (essentially a letter threatening a lawsuit, and outlining what I was owed), Mark called him and agreed to increase his offer to $5k. That was still far less than I (and my attorney), felt that I’d receive if we went to court. Also, at that point I’d have to pay my attorney 1/3 of that $5k, decreasing my pretax take home to $3,350.
After another week went by with no movement, we filed a lawsuit for breach of contract, suing for the full $11k+taxes and interest. A week later my attorney called to say he’d spoken with Mark’s attorney, and would I be willing to accept $8,500? He agreed to reduce his fee slightly, and I could take home $6k pretax.
At that point I had to ask myself, “Is this worth a 12-18 month court battle over $2,500?” While both my attorney and I felt that I’d win in the long run, and that my paperwork would hold up in court, I didn’t think it was worth the headache or the small chance I might lose and collect $0.
What did I learn from this headache process? A few things.
1) Always, always communicate with your clients. Always. About creative decisions. About financial decisions. It’s like a marriage it that way, there’s no such thing as too much communication.
2) Every contract needs to have the following phrase, “The customer under this agreement shall be responsible for reasonable attorney’s fees and costs of collection of any unpaid and overdue amounts payable to XXXXXX Photography.” The lack of that sentence cost me $2,500 in legal fees.
3) No matter what the client says is “possible” get some money up-front. I’ll no longer waive my retainer for anyone. If they wanted the images that badly, they could have made it happen.
I’m sure commenters will read this and find a thousand things I could have done differently, and I welcome any/all suggestions. When Don asked me to write this post I did so hoping to help other young photographers avoid many of the same mistakes I did.
At the end of the day, I prefer to look at this as a win. I collected $11,000 in fees for images of products made during the slowest time of year (December) and walk away a far wiser business owner than I was even a few months ago.
— — —
Thanks for this, my friend. I am glad it worked out as well as it did. We appreciate the well notated action account.
Thanks for taking some time to read this article. Share any insights you may have in the comments. The author will be reading and we can get a follow up if there are questions. If you have had similar contentious clients, let us know how your case worked out as well.
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Wow powerful post. Sorry that you experienced this. What a lesson to learn though…we all need these lessons and often times first hand. I’ve been where you are but not for that amount because once over 5K I enter coronary land. LOL. Thanks for sharing this with us. A lot to be learned.
“2) Every contract needs to have the following phrase, “The customer under this agreement shall be responsible for reasonable attorney’s fees and costs of collection of any unpaid and overdue amounts payable to XXXXXX Photography.” The lack of that sentence cost me $2,500 in legal fees.”
Yes. I just learned the importance of this one myself. The only lawyer in my area that deals with contract law has advised me that my case, while excellent, will not even be worth persuing because I don’t have the above clause in it, and his fee will eat most of the money owed to me. Wonderful. I was just telling Trudy this the other day, actually. It’s the one thing I’ve been through that made me throw my hands in the air and wonder where my baseball bat is. LOL. [no, I will not be going that route, either]. Lesson learned, indeed.
Thanks for doing this. Adding that clause to my contract(s) now.
Also – when doing ANY kind of commercial or advertising work – ALWAYS have a shot list before quoting a price, and before starting work. Also outline the amount of retouching, the file sizes delivered, and clearly delineate who is supposed to provide what. (especially when working with web designers who have not worked with commercial photographers before) That one bit me in the butt recently, and I’m still trying to finish the job.
That one time we think to ourselves…”I can make an exception in this case because ______”, then it bites us in the bee-hind! It hardens us and gives us flash-backs if we ever have that thought again. Adding the bit about legal fees.
I had to file once. When the husband got served he called me that day and claimed “he was unaware of previous sent invoices, his wife never informed him” [uh huh]. He paid in full without court, but the total was considerably less than your experience.
Thank you for sharing your story and for the “legal fees” input.
Sorry to hear about your pain! All of our usage licenses should also include verbage like, usage rights granted become valid only upon payment in full.
If this company used any of your images before your invoices were paid they are in violation of U.S. copyright laws and are infringing on your copyright(s).
Thank you for posting your story…something we ALL need to keep in mind!
Gosh, I wonder how Mark got to be such a successful businessman? Did he let his customers walk all over him after he sold them something (I can’t tell if it is goods or services he is selling, presumable goods)?
I can hear it now. “Gosh Mark, I know your quote said $15.99 each for those kibitz, and I know I bought 10,000 of them, but really, that is just too much to pay for that volume. How about I pay you $2.99 each? Never mind the fact that I have a contract with you for $15.99 each.”
Yes, I’m sure Mark would be happy about that.
Glenn my contract did include that language, and I did remind them of that fact. However as the images were seasonal, they never intended to use them until next fall anyway, so there was little leverage there (as of yet).
Sounds like you made a whole bunch of errors. I don’t blame them at all. You didn’t originally meet with the real decision makers (Mark) and you didn’t set rates up front with the real decision maker and define the terms of how it was going to work. You let the client do it. You were too hungry or greedy. “We haven’t set a budget” is a red flag, not an invite to start billing.
They weren’t being contentious. They were surprised and alarmed at the invoice and trying to get out of it.The article says they “refused to pay what they had agreed on” but there wasn’t any number they agreed on. Mary only said “You’re the guy”. That’s not an agreement. When you racked up five grand the first day, you didn’t tell her how much, you only asked her if she had a budget in mind. What is that? Why didn’t you tell her? How can she pay if this hasn’t been budgeted for? Mary didn’t speak up at the meeting because she realized she mishandled it and wasn’t about to open her mouth and take the blame so she let you continue to go under fire.
I can’t believe you actually fault them.
G.
You are kidding right?
“You didn’t originally meet with the real decision makers (Mark) and you didn’t set rates up front with the real decision maker and define the terms of how it was going to work.”
The person who hired the photographer was the marketing manager. Are you telling me that you would have demanded to meet with the owner instead of dealing with the marketing manager? Bullshit.
I work with representatives of firms all the time. Every small business to large business does. We don’t “demand” to meet the owner. To suggest this is simply absurd.
“You let the client do it.”
Yes. We let clients do their internal decision making. Sorta how it goes, G. How does it work in the world you work in? The art director calls you and says they have a job for you and you say, what, something like… “I don’t talk to art directors. I want to know what the boss says. OH, by the way, send me all the internal memo so I can see you aren’t lieing to me about the whole thing.” Really?
“You were too hungry or greedy.”
Are you seriously saying this?
“The article says they “refused to pay what they had agreed on” but there wasn’t any number they agreed on.”
Maybe reading isn’t your thing. Not only did they agree on a number, it was in a written contract. One that was accepted by the owners of the company. One that stood up in court very very very easily. One hour with the contract and the client’s attorney is on the phone with an offer.
“When you racked up five grand the first day, you didn’t tell her how much, you only asked her if she had a budget in mind.”
Yes. There was a discussion on the fee starting to rise. It was noted.
“What is that? Why didn’t you tell her? How can she pay if this hasn’t been budgeted for?”
Ahhh… in your world people are stupid and incapable of making decisions based on simple mathmatics. OK… got it.
“Mary didn’t speak up at the meeting because she realized she mishandled it and wasn’t about to open her mouth and take the blame so she let you continue to go under fire.”
Bingo. That is certainly acceptable to you, I suppose. The marketing manager makes a terrible mistake – one that was internal and not privy to the photographer, and then refuses to stand by their mistake. Super person. Absolutely top notch morality and ethics there.
Of course when one reads the words “she realized she mishandled it” one would wonder why you are blaming the photographer. However, that would preclude me believing you are coherently reading the article.
“I can’t believe you actually fault them.”
Yeah. Crazy photographer.
Meets with the client.
Creates a contract with hard numbers.
Creates a contract with defined usage fees.
Client states its a go.
Client shoots the stuff they “need”.
Client takes delivery of the work.
Client sends happy words of acceptance.
Photographer bills the AGREED TO price that is on the CONTRACT.
…
Yeah. I can see where it is the photographers fault now that I read that.
Sheesh.
I don’t know where you work, G, but I hope the skies are blue in your world.
While G (yet another anonymous commenter using tough words on the Internet) is taking a contentious position, there are some valid points in buried in there.
These considerations wouldn’t come up if we were dealing with a professional art buyer from an agency, where this all comes down to a professional dance where everyone knows the rules. But as photographers when we deal with clients that are unfamiliar with commercial photography, I don’t think we spend enough time making sure everyone is on the same page, and we’re too afraid to tackle the uncomfortable questions in fear of alienating the client whose business we need. Yes, it was a valid and signed contract that held up. But that’s a poor backup in a business that’s built around a working relationship and where the goal is to have a happy client who will give us repeat business (remember it’s more economical to get repeat business than find a cold new customer). It’s a great and required CYA move, but ideally you never need to prove it.
Just like an art buyer will be cautious with a photographer who has never done that big of a job and wonder whether he can pull it off, we should always be careful if the project can result in billing that is bigger than anything the client (specifically your contact at the client) has done before to the best of our knowledge. Same for usage. If this is the first time a client is exposed to something that includes usage, don’t assume they know the game and what not to do. It’s almost a guarantee that they will cross the line. Be extra explicit, even if that may risk losing the business.
Thanks Jan.
I do think a shot list is a valuable tool for both. It lets the client see how much the shoot will cost. It lets the photographer see how many shots there are… and that could potentially change the per shot price on volume.
But working with small businesses who seem to have no problems with the ever-expanding shoots is sometimes tricky as well.
Shot lists and agreed on parameters are wonderful tools – AND they can lead to the wonderful “Change of Work Order” that must be signed. The problem is when the client professes to be the one who is able to sign the work order, and in fact, isn’t. It is terribly difficult to challenge someone’s authority, and would lead to many other problems.
Do note that the person who hired the photographer stated categorically that she would INDEED hire him again.
The problem was an internal daddy/daughter problem that the owner had no problem foisting on to the photographer. We are not privy to the inner workings of companies and can only really work on the good faith of the person who represents themselves as the one in charge.
It was totally an internal problem of the company. One that is all too common in small businesses. When you deal with a corporate entity they have processes in place (like limits on how much a particular person/function can sign for, a PO needing to be signed by a person w/ signing authority of that amount) to avoid this type of scenario. Because it’s too costly to deal with the legal implications of human imperfections. But in a small business none of that exists. That’s why as independent contractors we need to have a good radar to detect these type of situations and compensate as appropriate. And be extra cautious when dealing with someone still relatively green in their career. They still have to make all of those mistakes at least once, just like we need to remember to load the film 🙂
Yes, she indeed said she would hire him again. But I think that was a statement based on the fact that she liked his work (based on both the wedding photography and likely the initial work on the commercial project). That wasn’t a statement on the business relationship, the cost, the ability to actually afford this type of professional service. Two different things. Just because someone likes your work, doesn’t mean they should be your client.
Thinking about it, this was actually much less of a daddy/daughter problem. This was really a professional failure of a marketing manager that was in a job she was too inexperienced for. She had no concept on how to execute the project, what the proper budget should be for this type of a business, what an effective way was for executing it. Most likely they should have never considered this type of photography for their website without some serious internal planning. Her dad intuitively knew that, but didn’t supervise his daughter/employee correctly until it was too late. That shows that he had good business skills, but poor leadership skills, something very common. That same point also took him down the path of being contentious instead of realizing and fact finding and appropriate corrective action on both sides. In the end he didn’t make his daughter a better employee, and he only added to his reputation of being difficult to do business with. Sad stereotype.
Thank you for posting this.
I had a similar experience with a client recently that has spiraled out of control.
Long story short: a client and I agreed to a project with a project budget of 40-60 hours of post-processing work. I meant spread out as 4-6 hours per day; the client meant 12-16 hours per day.
I was let go by the client after turning in the work via an email that stated my services were no longer needed, though they loved the work I did. I replied via email asking about the compensation for my work. The client replied with something about checking my invoice (each activity detailed down to the minute) against their records for payments sent and get back to me.
She hasn’t gotten back to me. The two times I’ve checked in at her business, she was not there.
Elizabeth.
Stop wasting time.
Call an attorney and escalate this immediately. Do not be reticent in collecting what is owed to you. Do not be content to be lied to and cheated.
Act immediately.
An attorney will charge you from $100 – $200 for a letter of demand.
If that doesn’t work, prepare your small claims court case and file. Immediately.
It’s times like that which make me remember how much I’ve invested in my education and consider this loss actually just tuition It’s a lesson that wasn’t cheap, but it will save you a lot more in the future.
Thank you for posting this alarming experience. But really, there are warning signs at the very beginning. Mary is a light-weight! The arrangement that was proposed would lead to a huge expense for any company, and Mary did not look at the “final figure”, the ultimate cost. The photographs were required for their web-site, a low resolution requirement. Perhaps there were other opportunities for the client to use these images in a higher resolution, but the original indications were for web use only. The fees asked for and agreed are high when the end-use is considered.
I can see, with the use of hind-sight, that expectations on both sides were high. Client wanted the world for very little, and the photographer thought they had landed a wonderful opportunity! The client did not have the authority to spend such amounts, and that’s really where the problems arise! Her father was alarmed when he saw where things were going, and dealt with an internal problem in a very external way.
Anon, you were lucky in some respects to get out of the situation with a good result. Your experience is a lesson to us all. Yes, we are all trusting people, but to our cost! Some day we’ll all face something similar, but with the benefit of your story, perhaps the damage will be limited.
THANK YOU !
I had so much of these sort of things. The Main problem with us is that we Just started talking about COPYRIGHTS here in Maldives. Hope you got the bigger picture.
Thanks for sharing the experiene. You can NEVER communicate enough.
The Original Poster Got it right when he lamented that he let his retainer slide. I totally bought into why he did, yet that would have changed everything I’ll bet!
Thanks for a great story!