Ask an Agent / Client wants me to take all liability - Help!
Ask an Agent is a regular monthly feature answering your questions about the business of photography – the photography industry’s first Agony Aunt! If you have any questions you’d like to ask a photographers agent please send them to email@example.com. Questions can be on anything to do with the photography business, such as photoshoots, marketing, professional practice, pricing, contracts, legal stuff – anything.
Dear Ask an Agent,
I’ve just been given a contract by a client for a job that has been signed off. They are organising everything (models, locations etc.) but I have noticed in the contract there’s a clause about Professional Indemnity that seems a bit heavy handed. I feel I am being asked to take liability for any third party claims that might arise even though I’m not having any say as to what is being shot or arranging anything that will feature in the images, a lot of this shoot is out of my control. What do you advise?
Thanks for writing in to Ask an Agent. There are usually 3 particular areas on a client contract that you have to be extra vigilant of: firstly, anything about asking you to assign copyright ; secondly, payment terms; and thirdly, indemnity - as in the client wishing to dismiss all liability and put all the onus on you, the supplier. So you are absolutely right to err on the side of caution and question this.
Contracts are always favourable to the person or company to which they belong, but it is reasonable to question anything that you don’t feel comfortable with and reach a mutually acceptable agreement before signing on the dotted line. It's fair enough that a photographer should have a responsibility to their client to deliver what they have agreed. If they breach the contract and this results in ‘third party claims, losses or damages’ then you can see why a client would want to protect themselves. What you need to do is adjust the wording on the contract so it is clear that you are only liable for anything that is clearly your responsibility – for example turning up to a shoot, or your equipment working. In turn you can protect yourself from unforeseens by making sure you have professional indemnity insurance.
It is helpful if you have a clause in your terms and conditions that states:
‘Photographer will indemnify the Client against third party claims, losses or damages only if this is as a result of omissions or errors by the Photographer that have expressly been agreed in writing.'
You can also use this wording as suggested alternative wording on the contract you have received from your client.
Hope that helps. I go into quite a bit more detail on this subject and contracts in general in my new book so it might be worth having a read. It’s so important to read the small print as you could really be exposing your business to unnecessary risk if you don’t!
Whether you’re a creative director or a student, a photographer or a designer, an art buyer or an assistant, if you have any questions you’d like to ask a photographers agent please send them to firstname.lastname@example.org and we’ll answer as many as we can!
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This advice should be taken as a guide only.
Lisa Pritchard, LPA and guest bloggers take no responsibility for any omissions or errors.
The images used in this article are for illustrative purposes only and do not necessarily correlate with specific facts or examples cited in the text.
Please seek professional legal advice should you require it.