What’s the worst that can happen? Business risk management ideas for photographers
Important — This isn’t legal advice. It’s a sharing of knowledge as to how I approach the management of certain risks in my outdoor photography business. My list of risks is not exhaustive. Consult a lawyer please if you need an expert view.
Competitors capsize in rough waters during the Oban Sea Kayaking Race, an annual 20km race around the island of Kerrera off the west coast of Scotland. The pair were back in their boat fairly quickly, obviously confident that their skills and experience (at what I’d call ‘self-arrest’ in mountaineering terms) were sufficient for them to be confident they could manage any risks they’d experience during the race, e.g. falling overboard.
A number of photographers I’ve spoken with over the years have surprised me by sharing that they didn’t have an overly considered approach as to how they manage risk within their photography business. Yes, they had mature workflow and backup processes in place to protect their images and signed contracts as to what they were committing to produce but in the context of mitigating risk across their whole business, I was often left feeling they were leaving themselves open to problems should something go wrong. To support myself in that regard, and the community, I’ve illustrated what risks I feel a photographer is open to and shared some ideas as to how we could mitigate them.
Whose photo shoot is it anyway?
A key thing I like to agree early on in a contractual discussion is clarity as to whose shoot it is. For example, am I working for the client and they’re recruiting me along with other resource, such as models? Or is the client contracting out the production of the whole shoot to me and therefore I’m assuming all the accountabilities? Will I be sub-contracting elements of the work to other third parties to help me complete the job (e.g. a film-maker or a digital technician)? Answers I can secure to these and other related questions helps me to understand which risks are applicable for that commission and whether they sit with me or with my client or a crew. It’s important for me to understand the potential risks in a shoot and the controls I have in place to mitigate the ones which are relevant to me. Highlighting what’s left protects me but also helps me to support my clients.
What risks does a photographer need to consider?
A solid approach to risk management is a key attribute for a photographer. It’s not as creative or as fun as taking photographs and it won’t stop things going wrong (a key skill in photography is problem solving) but the goal I’d suggest is to plan ahead and limit your liabilities as far as possible. You’ll soon realise you won’t be able to mitigate every risk but can I propose your goal, as far as possible, is to be aware of the risks you’re carrying in your photography business and be comfortable with your approach to these before you perform any work. Consult a lawyer for professional advice.
1.) Working for yourself
Here is a selection of risks I’d suggest you’re open to as a photographer once you have been commissioned for a photography shoot;
Risk you have to do more work than expected — Is the scope of the work you’re being contracted to do fully documented and signed off by all parties? Consider what you’re being asked to do and ensure you’re happy you’ve adequately budgeted for it in terms of cost and time in your photography estimate. Are there additional images being requested on set? Extra processing required after submission? Be clear up front if this is above and beyond the cost of any estimate you’ve provided and the contract you’ve agreed.
Risk you hurt yourself (and can’t complete the work) — Especially so in the world of outdoor and adventure sports photography, when you could be photographing people running, hiking, trekking in remote places, mountain biking down rough ground or surfing and kayaking in turbulent waters, there’s a higher chance than usual of you hurting yourself whilst on a job (e.g. breaking an ankle or wrist) and not being able to work. Personal accident insurance could cover you in such an eventuality. Be up front with the insurance company about your activities and ensure you are covered accordingly.
Risk you break equipment (and can’t complete the work) — Outdoor photography is especially hard on camera gear. Rain, sand, dust, salt water, rocks, etc. can all have a catastrophic effect on your equipment and stop your shoot short. Equipment insurance will help but ‘real-world’ insurance is better — ensure you have a backup for each piece of equipment you need on a shoot (including peripheral items such as cables). Being able to switch to working equipment quickly and confidently in a crisis is a professional approach and will make you look competent in front of your client.
Risk you do poor work — Not something many people want to admit, but we’re all human and mistakes can (and likely will) happen over the course of your career. Knowing the capabilities of your equipment, being able to use it inside out and avoiding the need to try anything you’ve not practiced repeatedly prior to a shoot is the best advice I would offer photographers against the potential for work that’s not quite as good as it could or should be. Private indemnity insurance can offer you peace of mind that any issues you experience won’t be catastrophic financially (although your reputation, i.e. your brand, will almost certainly take a hit).
Risk you hurt others — Public liability insurance can cover you for costs that are brought upon you in a court of law related to claims made by members of the public related to your business activities. Think of someone walking past your shoot location who trips over your camera bag and hurts themselves.
Risk you’re seen as liable for the crew’s actions — You’ve been hired by a client to create photographs. A budget has been allocated to the shoot for a Production Manager to manage the shoot and keep it running on time. Included is funds for an assistant plus a person who will carry strobes and other equipment to the photography location. You’ve recommended the services for a Safety Officer, a professional mountain guide you know who can help identify and manage risk across the photo shoot overall. Plus there’s two or three models needed for the images and a stylist responsible for hair, make-up and wardrobe. That’s a crew of people who are all working together to help you create photographs for the client. The key question to ask yourself in such situations is who is hiring who and, if it’s you, how do you protect yourself from any potential issues?
In the example above, the only crew I’m responsible are those I’ve brought to the shoot myself, i.e. the assistant and the load carrier (but only in certain ways — see the ‘Working with a crew’ section below). The Production Manager, Safety Officer, models and stylist are all contracted by the client (as am I). In such cases, I’d want my documentation to make it clear for the client that I appreciate they are an integral part of the shoot, and I do have quality expectations of them, but I have no obligations as to how they act, nor the effectiveness of their work.
Risk you’re seen as liable for the client’s actions — As above, but with a different example. What if your client or a member of their staff hurts a member of the public on a shoot? Or injures a member of your crew and they are unable to work? Is it clear who will be liable and therefore whose insurance needs to be claimed off? You may wish to propose to the client that they put in place shoot-wide insurance that covers everyone involved in the production of the photographs. If they say no, make sure there are no expectations at all that your insurance covers anyone other than you on the shoot (unless you’ve clearly agreed up front that you’re taking on a full production role, which I’d always recommend includes shoot-wide insurance).
Risk you lose work — You may well have an efficient backup system in your office which packages your content nicely onto appropriate RAID so it’s stored in multiple locations both on and offline. But what happens on set? How big an issue would it be for you if your memory card stopped working, for whatever reason, and you lost all the images from the shoot before it had finished? It’s unlikely given the quality of today’s ‘big brand’ memory cards (I use SanDisk and Lexar) but you might wish to consider backing up your images in camera to two separate memory cards or tether or transfer them wirelessly to a laptop whilst shooting. Another method would be to quote the client up front for the recruitment of an aforementioned Digital Technician, who can be responsible for backing up your images regularly whilst you shoot (plus working on images your client has picked during the shoot and processing them for approval).
Note — If your client accepts there is a risk here but doesn’t wish to pay to mitigate it, you could choose to record this in your documentation for the shoot (e.g. an email summarising decisions and actions or a RAID document you’ve produced which details risks, assumptions, issues and dependencies).
Risk your client doesn’t accept your work — Make it clear in your terms and conditions what classes as a finished product (i.e. what good looks like according to the brief). Ideally, you don’t want to be guessing if your client will like your work when you send it across. Enabling them to review images and sign them off as being compliant with the brief in the field will remove that pressure. Being tethered to a computer whilst you work will also aid that process. (If the client won’t be at the shoot, a common solution is to include a clause in your terms and conditions highlighting that you have the final say as to what constitutes an ‘on-brief’ image) .
Risk you can’t use or re-use your work — The copyright in your photographs should remain with yourself as the photographer (otherwise you won’t be able to use of your work outside the boundaries of which it was shot and, depending what is in the contract, perhaps not at all). Include a clause in your terms and conditions that details that you, as the photographer, own the copyright to all your work and you retain the right to use the images for the purpose of self promotion at any time and for all purposes outside the terms of any licensing period you are providing for the client. (The only proviso may be if you’ve been asked to embargo images for any period of time).
2.) Working with a crew
This section applies when you’ve agreed with the client that you’re responsible for hiring people to help you carry out the logistics of the shoot. This could include models, load carrying or more technical tasks such as production management, camera and lighting or a digital technician. I’d strongly recommend, if you are responsible for contracting with someone directly, mapping out the specifics of that relationship with that person and ensuring you have a detailed contract in place which outlines the nature of the contract, what good looks like for them and you use that to limit your liabilities.
Risk they consider you liable for any loss of income — In the outdoor and adventure photography world, this is especially relevant when you’re hiring, for example, professional athletes as models and there is a risk that they hurt themselves and are not able to earn their income. Position yourself in such a way that any resource you contract work to is aware there are risks and they’re accepting that they are competent enough to independently identify and mitigate those risks and are fully responsible for accepting any consequences of their actions. If it is not clear to you what the risks are (your crew will be the experts in their own field so seek their advice), schedule a session with each one and potentially a Safety Officer to discuss the shoot beforehand and agree any boundaries you’re not willing to cross. (This doesn’t stop you from always being vigilant on set. If you’re not comfortable photographing someone performing a task, or you see someone acting in a manner that could be dangerous to themselves or others, be confident to say so).
Risk they don’t perform — For various reasons, the standard of work you receive from a member of any crew you recruit may be less than which you expected. Choosing your resource wisely will mitigate this (e.g. you‘ve worked with the person before or taken recommendations from trusted friends) but it’s only fair to be clear to your crew what you expect. Document this for each person and ask that they agree to it up front.
Risk they hurt themselves — Imagine you’re on a photo shoot and you’ve hired an assistant to help you carry gear to the location. For an outdoor adventure photography shoot, this could be to a crag where you’re photographing climbers or you’ve hiked to the top of a mountain to take images of runner at dawn. You’re confident in your own abilities to manage the risks in such a situation but how do you get peace of mind that your assistant is competent and won’t put themselves or others at risk (and, potentially, consider you liable for any loss of income should they get hurt on what they see as your photo shoot). Ensure they’re aware that your insurance only covers you and your recommendation is they have their own business insurance in place. (You may only choose to work with people who have appropriate insurance in place).
Risk they hurt others — As above, recommend to each member of your crew that they have their own Public Liability Insurance. (Also consider whether you wish to contract with anyone who doesn’t).
Risk work is lost — If you hire a competent digital technician they will bring quality processes to the shoot as well as their expertise, which should include regular backups to minimise the risk of images being lost. Asking for assurance of this makes entirely good business sense, as does outlining what you expect from a digital technician and what good looks like. Document this in a contract you agree with them before the shoot.
Risk models don’t sign model release — In the example I gave above, it’s the client who has hired models but the model release I’d suggest is of most value to you as it dictates how your images can be used (and how you can use them in the future). Make it a key task in the shoot to ensure that you or someone on your behalf is responsible for securing a signed model release.
Risk they damage equipment and the shoot can’t be completed (or they consider you liable) — If you’re hiring crew for the photography shoot, check what equipment is included in the crew rate and seek assurance, like you, that they’re bringing back-up equipment in case of equipment failure. Flag up front that, if a member of your crew’s equipment becomes damaged during the shoot, they need to be sure that it’s covered on their insurance, or a shoot-wide insurance policy.
3.) Working with a client
The following risks apply either to commercial work or where you’re selling something direct to a consumer (e.g. a print or a workshop).
Risk they expect more than you’re expecting to provide — I’d recommend you clearly outline what you’re providing as part of your service or product offering but, more importantly, what you’re not. This will help identify potential gaps in people’s understanding.
Risk they hurt themselves on set and they think you’re liable — As mentioned above, be clear on what you are responsible for and what not
Risk they don’t like your work — Again, covered above by you including a clause in your contract that the client signs off work in the field (or, if they’re not attending the shoot, they’re accepting that you as the photographer have the right to decide what good looks like).
Risk they pay you too long after the shoot (and you’re out of pocket) — Request an up-front payment of the full production expenses in your estimate when you have to do work ahead of the shoot. (Include any expenses for your crew).
Risk they don’t pay you at all — It’s unusual but cover yourself by including clear terms in your contract that outline the implications of any non-payment of work that is delivered on brief. Consider requesting a deposit up front, e.g. 20% of your shoot fee and your crew’s fee on top of the full production expenses.
Risk they use your images where or when they’re not supposed to — Make sure any model release and your usage license clearly outlines the boundaries of where the images can be used. Be specific about any exclusions and expiry date. If your client has recruited the model directly then you should not be open to any risk because the contract is between the client and the model (but you do have a vested interest in the content of the release if you want to use the images going forward). If it’s you who has contracted with the model and agreed the model release, and the client uses the images outside the terms of that release, the model may be entitled to claim additional funds for any breach of contract. Be sure that it’s not you that will be liable for those costs.
Summary
Nearly all my thoughts above are based around my being able to identify who is responsible for what in a photo shoot and ensuring that any risks I may be inadvertently exposed to as a business are mitigated as fully as possible. I’d summarise this as follows;
Consider all the risks you may be open to as a business
Put processes in place to mitigate those risks
Put controls in place to assure yourself that your processes are working
Check those controls on a regular basis
Use contracts to protect yourself, as far as possible
Don’t blindly accept other companies’ contracts. Take control of your business and protect yourself.
More information
I started my photography business using the advice provided by Lisa Pritchard in her excellent book, ‘Setting up a Successful Photography Business’. Included in the appendix is a series of templates Lisa recommends for business contracts (including an excellent one for terms and conditions). For that reason alone, and more, I’d say this is an essential purchase for any photographer.