Yes, it is a controversial headline...
But it is a very controversial topic right now amongst photographers. Facebook group after Facebook group has wedding and family photographers complaining that they have to give their clients back their session fee (note this is *not* the retainer).
I have been reading in horror as one after the other, photographers tell the world that they have spent the session fee. These photographers cannot pay back brides, grooms, couples and families following the onset of Covid-19, and the cancellation of all photography sessions.
So let me break this down for you.
When you book a photographer for your sessions (whether that is a family session, wedding, or engagement), you sign a contract outlining expectations, hours, number of images etc. You are then asked to pay a non-refundable retainer. This amount is generally up to 50% of the total session fee and goes towards our location scouting, wardrobe consultations, in-person meetings with you, mileage costs, as well as our general expenses for a legal business. I generally keep a portion aside from every retainer to pay my taxes too.
Closer to your shoot date, your photographer will ask for the balance of the session. So, your remaining 50%, for example. This is the session fee. Now, most professional photographers will keep that aside in case of an accident, natural disaster, sickness, or something like Covid-19 where everything falls apart and the session cannot be shot. If the session cannot be completed there are two options 1) Reschedule for a later date and use the session fee you have already paid or 2) Obtain a refund. Usually, this should not be a problem, and either one of those solutions solves the issue.
Not being an expert in photography law, I reached out to Rachel Brenke, Photography Lawyer extraordinaire, and founder of The Law Tog to ask her whether photographers should be using the session fee money before a session is done. Here are her short answers:
1) Should a photographer be spending a photography session fee (not retainer) paid upfront - before services are rendered?
No. A photographer should never spend monies for services not yet rendered as they risk the need to refund if something happens (example: COVID) and they need to refund. If they don't have the money it puts them in a very bad position as a business.
2) How legal is it for a photographer to refuse to refund a session fee (not retainer) even though the photoshoot has not happened (i.e. with the Corona Virus)?
If services have not been rendered you cannot keep a fee for services that have not been rendered.
3) If the photographer offers to reschedule the wedding/photo session on their calendar, and the client refuses, are they still liable to refund the session fee if asked?
Liability will depend on the wording of rescheduling language plus current circumstances at the time of the offer. This is definitely a situation they should seek legal counsel if they find themselves concerned regarding liability.
So, if you are looking to hire a photographer please make sure you ask them what they do with your session fee before the actual session, and make sure you are hiring an insured, legal photography business. Ask them for their business license, proof of insurance, or check to see if they are registered in your state. Don't chance it and be left out of pocket, with no pictures to show for it.