Recently, another photographer expressed distress to me over a wedding they photographed for their studio. The videographer at that wedding posted a significant number of still images on their own social media pages, even brazenly and shamelessly poaching the photographer’s posed compositions. That photographer is absolutely in the right to be upset. The videographer was unrepentant, responding with a small manifesto on how many awards he has won and all the amazing people he has worked with, all of which completely dodged the real issue at hand: He poached the photographer’s art for his own marketing purposes. I myself have been forced to contend with this problem a few times, mostly with DJs. It is a legitimate problem, and one which seems to get worse every year.
A couple years ago, a rather large and zealous debate erupted (look up #WeddingPhotoGate sometime) when the DJ at a wedding took hundreds (not an exaggeration) of photographs with a DSLR during a wedding, and posted those images to Facebook the next day. He tagged the participants and family members, and mentioned the photographer by name as the official photographer of the event. The DJ claims this was just an added “gift” service he gave to the client. The photographer was upset for many reasons, and asked the DJ to remove the images. The DJ refused, saying he had every right to take photographs of the event. The photographer eventually had to involve the couple, who asked the DJ to remove the images.
So What’s the Problem?
The problems with this were numerous. Some of those problems were simply the DJ showing bad form. Based on how you perceive the intent and action, some of those problems cause the client to be in breach of contract with the photographer. Some of the problems are actually arguable as illegal actions by the DJ.
- Theft of Intellectual Property and Potential Revenue. A photographer posing people in specific environments at a wedding is a significant component of their art. A photographer isn’t just someone who presses a camera shutter. They position and pose people, set up detail shots, control human dynamics and environments, all to stage an image that they then capture with highly specialized technical skill, with a quality level professional camera. That is art, and that is intellectual property. Another vendor (or guest, for that matter) taking their own snapshot of that art and then giving it away (or using it to market their own services) is actively engaging in the theft of intellectual property. This is illegal and actionable in court as theft of intellectual property. Some documentation of the day is not staged, but rather documented, by the photographer. That isn’t as readily identifiable as intellectual property, so that’s a little more ‘up for grabs’ as it were. Additionally, many photographers charge a lower price and then make up the income by selling prints to clients, family, and friends. If another vendor (or even a “guestographer”) comes along and poaches the exact same shot over the photographer’s shoulder to give it to the couple for free, that person is now taking potential livelihood income from the photographer’s pocket.
- Causing Confusion About Who the Professional Photographer Is. You are a guest at a wedding, not intimately acquainted with the hired professional photographer. Someone walks up to you with a professional looking camera and asks you to pose for a photograph. They act professionally, they make you laugh and help you relax in front of the camera. They interact with you and present themselves in a seasoned, professional way. Five minutes later, someone completely different walks up and asks you to pose for a picture with their professional looking camera. They may not be dressed professionally, they might even act like a drunken carnival barker and say inappropriate things to the guests around you at the table. Now you’re confused and wondering why the photography team is taking the same exact picture of you sitting at your table. Wow, they must really not know what they’re doing. It is a very reasonable assumption that you will believe that to be the professional photographer, or at least a member of that photographer’s team. It’s easy to see how this would reflect badly on the hired photographer, even though the photographer has nothing to do with that clown. Yes, this has happened to me. There is another potential issue here. Let’s say a DJ pops out from behind the stand with his shiny new DSLR and approaches your Aunt Margie. Aunt Margie grabs her sister and her brother who both traveled from far away and who she only sees about every ten years. The hired photographer might not have been made aware this was a desired photograph to capture. Aunt Margie now thinks there is going to be a nice professional photograph available of her and her distant siblings, and won’t ask the actual hired photographer for one. After the wedding she looks for that picture, and it’s nowhere to be found in the online gallery. She angrily emails the bride, who has no idea about any of this, and now suddenly there is drama. There is also a negative opinion of the photographer, who did nothing wrong.
- Unapproved Guerrilla Marketing. Why would a DJ take photographs of your wedding? Social media is an important marketing tool, and it is not unheard of for vendors to take photographs of their work. Where is the line, though? If a DJ is photographing the wedding ceremony, shooting table shots, getting close-up detail shots of the cake, and taking 187.5 dancing photographs without taking a single image of the DJ stand, is any of that remotely related to his services as a DJ? They are using these images in mass albums on Facebook, usually without any technical skill or post-processing of the images. They are tagging your client, your client’s friends and family, and in some extreme cases using those photographs to market their own photography “branch” of their business even though they were not the hired photographer. They are putting up public photographs of the client and their guests, most likely without any sort of model release. They have now used your private event for their own gain, when they were not hired to perform that service.
- It Can Diminish the Actual Photographer’s Product Impact. The vendor-photographer is putting their images up online before you can edit your own professional wedding photographs. Often they will do this a day or two after the wedding. This can potentially take business away from you, it greatly diminishes the “wow” factor when you post your own (much better) professional images later, and it makes people wonder why your images took so long if the DJ team had theirs up overnight. The public does not understand that the DJ shot on auto straight to jpg and just threw everything up there. They don’t know what goes into properly editing all of those images shot in RAW for your client. The vendor-photographer putting up a bunch of images overnight that seem pretty nice can even frustrate clients and guests who wonder why you take so long.
- Interference. A vendor-photographer can get in the way of a photograph you were paid to get. They might photobomb your shot, being obnoxiously in the background with their camera up. They can ruin your shot using a flash at a moment when you’re trying to use natural light or a less powerful flash setting. Their flash coming from a different direction can also ruin your lighting and make you miss a shot, potentially over-exposing the subject. The more unscrupulous and inconsiderate vendor-photographers out there will even bar your access to the most prime position for a photograph. What are you supposed to do, push them out of the way?
Violation of Exclusivity
If you have an exclusivity clause in your contract (and you should), a vendor-photographer taking an inappropriate number of photographs at the wedding actually causes your client to be in violation of your contract with you. The vendor didn’t sign that contract, so they will almost invariably say they have every right to take any photographs they want. In nearly every case, this is an incorrect assumption. The vast majority of weddings are private events, not public ones. Exceptions to this might be if a wedding ceremony or reception is being held in a public location such as a city park or a public beach, but only the parts happening in those public spaces. A private wedding is also not a “news-worthy” event unless the participants are legally considered news-worthy and subject to the whims of the paparazzi. Most weddings you’re going to photograph will not fall into that category.
The couple is the one hosting the event, and ultimately have control with respect to who is allowed to take photographs. They have the power to tell any vendor (or guest, for that matter) that photography is not allowed from anyone other than the hired professional. They have given you, the hired professional photographer, permission to photograph their private event. They did this in the form of a contract and payment. Part of that contract should include an exclusivity clause that defines what is, and what is not, allowed from others with cameras. If someone breaks that rule, the contract is with you and the client, and it is the client’s responsibility to have the offense stopped. Many exclusivity clauses stipulate that if the client refuses or is unable to get the offender to cease and desist, that the contract is breached and the hired photographer may leave with no refund to the client. This seems harsh, and it’s a conversation you never want to be forced to have. Remember, though, that the problem is not you. It is the offending photographer.
An interfering photographer can create a working environment which adversely affects the product the professional photographer was contracted to provide. In the most egregious of instances, if there is tangible proof of malicious intent by another vendor, it can be construed legally in the courts as tortious interference. This is a pretty rare occurrence, but not out of the realm of possibility. Only a judge could decide if tortious interference has taken place, and hopefully it would never come to that. That said, an interfering photographer can diminish the quality of your end product by distracting the subjects, photobombing your shots, and causing confusion about who the hired photographer is. They can also take away potential business through their own marketing efforts. This is unfortunately quite common, and having an exclusivity clause in your contract helps you let the couple know (as nicely and professionally as possible) that they need to handle the situation with the offending party immediately.
It isn’t even unheard of for an aspiring photographer to “work” a wedding without being the hired professional, by crashing the wedding and taking pictures, posing as a professional. This seems impossible, but it happens. Photographers Jennifer Lindberg and Jennifer Nichols encountered such a person, named Jerry Hayes. Hayes even sued Lindberg and Nichols, erroneously believing they could not enforce exclusivity. After he engaged in a straight-for-the-throat smear campaign against Lindberg and Nichols, Hayes actually took them to court over it. Lindberg and Nichols counter-sued, and the jury (not surprisingly) sided with Lindberg and Nichols. Additionally, they awarded Lindberg and Nichols $750,000 (later reduced to $100,000) for the actions of Hayes.
How Much Is Too Much?
It is common practice now for vendors to photograph their own work for use in marketing their services. This is nothing you can reasonably stop them from doing, nor should you. In fact, a much better approach is to offer them your card and tell them you’re going to get them much better images to use in their marketing efforts. You then must make sure to follow up and provide them a link to the images once they’re ready. Give them the images with a watermark or make sure they are giving you credit and linking to your site (good for SEO). This establishes good relationships with vendors you’ll likely be working with again in the future. Fostering this good will can also get you referrals from those vendors.
There are some vendors out there (mostly DJs, in my experience, though this is certainly not exclusive to them) who don’t care a bit about getting photographs from you, and don’t care a bit about interfering in your duties. They say they are only getting shots for their social media, but they are taking pictures which are completely unrelated to their particular duties. This is where the line gets crossed. A florist taking a photograph of the couple’s portrait session (and not just a close-up of their flowers) isn’t documenting their work. They are poaching your posed shot and using it to market themselves. This is crossing the line. A DJ taking photographs of the ceremony is crossing the line. A DJ coming out from behind their booth and taking pictures in the middle of the dance floor is crossing the line. An event planner stopping the couple in the middle of their day to take their eighteenth marketing picture is crossing the line.
Here’s the big problem: You don’t want to be the one to interrupt the couple on their wedding day with some business versus business spat. Even though you are completely in the right, there is a realistic potential that the couple will associate you with the bad feeling this might cause. You must choose where your line gets drawn, and do your absolute best to keep the conflict away from the couple. But, if the other party persists despite your request, warn that person you will be forced to go to the couple if they do not acquiesce. If the offender still continues, now you have done your due diligence and must ask the couple to intervene.
Is It Illegal, Or Just Unethical?
Depending on who you ask, and what specifically happened, it could be either or both. In the grander sense, it’s just bad form. As a photographer, you would not bring your own bouquet to a wedding “as a gift” to the couple. You would not set up your own speaker stand and DJ table and play music you thought the couple would like. You wouldn’t stop photographing for a moment to step in front of the officiant and say a few words you think the couple would like to hear. You would not switch your DSLR to video mode, capture some video footage, and post its unedited raw scene to Facebook the night after the wedding, just because you think the couple would like it. Because of the ubiquity of photographs and their practical use in social media, photographers have somehow become the “Hack-a-Shaq” of the event industry. We’re the big guy in the middle who can get blatantly fouled, and the ref never blows the whistle. Of course, this is not fair, and we should not have to endure it just because a DJ can go out and buy a DSLR for a few hundred dollars. Why is this practice considered unethical? Oh, let me count the ways…
- Client Privacy. Your contract has a model release (if not, it should) and your client knows your photographs are going to be used publicly. They have agreed to it, and their guests know this is going to occur. They do not, however, know that the DJ’s Facebook page is going to contain very public images that the couple’s guests have not authorized. The client should not have to even worry about this. As one excellent article by Kat Forder explains, “When you hire a mechanic, you don’t expect a haircut.”
- Guest Perception. Guests are already having photographs taken by the hired professional, who acts and presents themselves professionally. When they get asked by yet another “professional” who may not act that way, or at the very least is duplicating the work of the hired professional, they can get confused and annoyed. This reflects badly on the photographer, who the guests will likely assume is the cause of their annoyance.
- Devaluing the Art. As professional photographers we already have to work hard to educate people on why what we’re doing is special. I once wrote an article on Why Wedding Photographers Are Expensive that outlined just how much work goes into professional wedding photography. It talked about the preparations, training, and much more. An outsider might see us walking around taking photographs and think that’s all we do. They don’t know about lighting, flattering poses, adverse color temperature conditions, background elements, perspective, making sure people look their best, and all of the non-photographic elements of what we do throughout a wedding day. They just see someone walking around with a camera. So, how does it look when they see a DJ with the same exact equipment, walking around doing it too? How much worse does that problem become when the DJ’s unedited, AUTO-setting straight to .jpg images are uploaded en masse to Facebook the next morning?
- Poaching Business. A guest sees a picture (not a photograph) on social media the day after the wedding and goes to a link found there. They see the DJ company’s fledgling photography side business. Even if the DJ mentioned the actual hired photography studio in the Facebook post (which they usually don’t, and they shouldn’t anyway) the guest is going to make an assumption that these are “official” photographs of the day. They might then think that was the hired professional, even though it wasn’t. Could you imagine playing music on your portable music player during a wedding, and the next day sending the client and guests links to your music company? Of course not. But, that is in essence what is being done here.
- Theft of Intellectual Property. When a photographer sets up a shot, they are creating art. They are using various techniques to make sure everyone is looking their best. They are posing people in flattering ways, putting them in locations where the background will be nice and free of distracting elements. They are creating a visual work of art. The camera is just the tool which captures it. When a vendor-photographer comes along and takes the same photograph, presenting it with their own copyright watermark and using that image in their marketing efforts, that is theft of intellectual property. An art student re-creating a Salvador Dali painting does not own the copyright to that painting just because they bought the canvas and paint and copied it. When a DJ poaches a picture of a set-up you create, then uses it to market their own business, they are profiting from your work. Period. End of discussion. It is illegal and has been ruled so by courts in the past.
- Causing Strife. If you have to be “the bad guy” and defend your job to your client because a vendor-photographer is causing the client to be in breach of contract, there is a very good chance you will be perceived as the problem child. This is absolutely unfair, but that’s the reality. By not respecting you and your work, as well as your relationship with the client, the vendor-photographer is now putting themselves and their wishes above those of the client. A wedding day is about the client, not about the vendor (yourself very much included). By not respecting this relationship, the vendor-photographer is causing strife with the couple and with you as a fellow vendor.
How Do I Avoid This Problem?
Unfortunately, it’s difficult at best to avoid the problem completely. You want to have good relationships with other vendors, but not every vendor is a good person. Most of them are polite, considerate, cooperative, and have the client’s best interests at heart. Others, not so much. When you do encounter one of those individuals who think their own marketing efforts are more important than you fulfilling your contractual obligations, and even more important than the client’s wishes, what do you do?
They say “an ounce of prevention is worth a pound of cure.” That essentially means that stopping a problem before it happens helps to prevent much pain, strife, and damage control later on. This is the point of an exclusivity clause, but that’s not all you can do.
- Educate Your Client Ahead of Time. When your client is signing the contract, they must be aware of the exclusivity clause and the reasons for it. Most people do not read contracts. I know this to be true, because I once spent an entire year experimenting on my clients. I had the words “Zombie Apocalypse” in my force majeure section and not a single person mentioned it. Not one. While it is absolutely the client’s responsibility to read the contract, you should go over the finer points with them. That way, if a situation does arise during a wedding, it will not be a surprise. Additionally, advise them to read the contracts of their other vendors. If another vendor puts a model release in their contract or says they’re going to take photographs, the client should be aware of that. They should also give you a heads up that this will be occurring, at which point you can set some ground rules for that vendor. In a worst-case scenario, you might even have to say that would cause the client to be in breach of contract and that the client should not accept those terms from another vendor.
- Communicate and Share With the Other Vendors. If you let the other vendors know from the start that you will be sharing professional quality images with them, in most cases they will not feel the need to document their work. If you get resistance from a vendor who says something like “I have every right to shoot what I want” you should remind them (assuming this is a private event) that they actually don’t. The client calls the shots on who is allowed to photograph their private event, and if the offending vendor refuses to abide by the client’s wishes, you will be forced to inform the client that the offending vendor is causing them to be in breach of their contract with you.
- Deal Swiftly With Vendor Violations of Exclusivity. When you encounter a vendor-photographer at a wedding who refuses to act professionally, keep a close eye on their social media after the wedding. If they post images that have crossed the line and no longer are about their specific service, contact them privately to let them know the images should be removed. If they will not, then you will have to decide what action to take. I recommend contacting the couple first, and letting them know the vendor is causing a breach of the exclusivity clause. Such public postings on a professional company’s social media or web site constitutes professional use of unauthorized imagery from the wedding. Most couples will intervene at that point and ask the vendor to remove the images. Now, that vendor is the bad guy. If not, you have decide further what to do next. Some might post a comment to the album or individual pictures saying “This is NOT a professional image taken by ABC Photography. It is an image captured at a private event by an unauthorized vendor illegally poaching the work of the professional photographer for their own marketing purposes.” That is definitely throwing gasoline on a fire, but it’s one way to mark your territory.
Michael Chadwick is a multiple award-winning wedding photographer located in Medford, NJ. Michael Chadwick Photography offers photography services all over the mid-Atlantic region, as well as for destinations all over the world. All images copyright 2017 and may not be distributed or reproduced without express written permission.