Post # 1
I got married about 2 and a half months ago and was eagerly awaiting my wedding photos. I checked in at around the 6 week mark and my photographer told me that her computer had crashed, but I’d be getting them “next week”. She sent the gallery over that following Monday (yay!). However, I noticed that the photos past the toasts were missing. I emailed her and she sent me back a friendly email saying they must have stopped uploading and she’d look into it. I checked in with her a few days later to see what was happening and she told me she was still swamped, but they were high on her priority list. Fine, I totally get it. It’s wedding season and she’d been otherwise amazing. This past Saturday she sends me an email saying (paraphrasing here): “You know how I mentioned my computer crashing? I edit my photos backwards (reception then cocktail hour then ceremony, etc.) so when my computer crashed I think they went missing. I’m doing everything I can to recover them. I can offer you an album and the still shots from the videographer. I hope to get to the bottom of this and get you your photos.” I responded politely saying that I’d love an album and stills from the video and I hope she’s able to recover the images. I was too shocked/sad/disappointed to say much else. It’s been 4 days and she hasn’t reached out to me.
I don’t really know what to do. I don’t want to try to get my money back before I get a definitive “sorry your photos are lost forever”, but photos were my highest priority and I’ll be gutted if I don’t get professional shots of my father/daughter dance or our anniversary dance. I also wanted to gift my parents and in-laws a wedding photo album and Shutterfly is having an incredible sale right now (unlimited free pages!!!), but I can’t send them an album with no reception images. I can’t include the guest photos because the quality difference is significant.
What would you do in this situation? Would you try to email her again? What would you say? Would you ask for a refund? If so, how much? She technically delivered a little more than half the event photos. I had one shot at wedding photos so I don’t want another photoshoot. I also feel like getting money back from her won’t make me feel any better either.
Also I’m having a hard time wrapping my head around this clause in the contract:
Failure to Perform. If the Photographer cannot perform this Agreement due to a fire or other casualty, or other cause beyond the control of the parties, or due to Photographer’s illness, then the Photographer shall return the deposit to the Client and do everything in their power to find a replacement Photographer equal to them. This limitation on liability shall also apply in the event that photographic materials are damaged in processing, lost through camera malfunction, lost through computer malfunction, or otherwise lost or damaged without fault on the part of the Photographer.
Does this mean she isn’t liable if the photos are lost, or not?
Thanks so much guys!
Post # 2
I think the excerpt from the contract means that she must return your money. I read it twice and it clearly states that she must return your deposit and do anything in her power to rectify the situation.
Post # 3
Oh no! I’m so sorry, Bee!
Hopefully she will be able to recover the photos. It seems strange to me that they wouldn’t be backed up SOME place..?
Post # 4
The clause makes it appear that your legal recourse is limited to getting your deposit back. However, you might be able to make an argument that if you only have pictures from half your wedding, she has only completed half of the contract and thus is only entitled to half of her payment. Contracts can be interpreted a number of ways, and courts can act unpredictably in deciding damages for contract breaches. If it comes down to it and is worth the cost/potential benefit, I’d look into hiring an attorney.
Post # 5
PrincessPeach13 : Thank you! For some reason I was having a hard time breaking it into parts.
sboom : Thanks. Yeah I do photography for fun and I always have it backed up in multiple places.
hoosierb : That’s definitely good to know. I don’t really want to involve an attorney in this situation. Ideally the photos get returned to me, but barring that I’ll accept the deposit, the video stills, and an album.
Post # 6
If the photos were lost due to a computer crash, she may be able to use a data recovery service to rescue them. I would suggest to her that she look into using one.
Post # 7
I read This limitation on liability shall also apply in the event that photographic materials are damaged in processing, lost through camera malfunction, lost through computer malfunction to mean she is NOT liable for this loss.
Difficult to be sure without seeing the whole contract and definitions – ie, what exactly does the “Agreement” refer to?
Post # 8
How weird they should be backed up prior to being uploaded in the editing program for this very reason. Or at least in the cloud or still on the card.
Post # 9
sensiblesusie : That’s what’s getting me too. “This Agreement” is the contract in its whole, so payment plans, replacing her with another professional if she gets sick, etc.
Horseradish : I’m hoping that’s what she’s doing.
sweatergal007 : My thoughts exactly!
Post # 10
I am so sorry that you are going through this.
I would argue that the limits on liability do not apply as she failed to back up the raw images before starting to process them. That is photography 101 and a failure caused by her (not a computer or a camera malfunction).
I would send her another email now requesting an update as promised; it has been 4 days and this should be her priority (no weddings Monday through Thursday). I would also ask her if she has involved a professional recovery service yet.
If she does not have a backup, then I would start from the position that she owes you damages. Don’t start negotiations where you want to end up.
Be polite but firm in all your communications. Keep everything written, not oral. And feel free to DM me any drafts of your correspondence. I am not an attorney but pretty good at this stuff.
Post # 11
zl27 : Thank you so much! I’ll wait and see what she says.
Post # 12
That contract clause is quite unclear. It seems to say that the extent of her liability in case all these things go wrong, is returning your deposit and “find a replacement Photographer equal to them”. But the replacement photographer part makes no sense in the context of lost photos that have already been shot.
If it sees the inside of a courtroom (and of course that is a very big if), then ambiguities in a contract will usually be resolved against the party that drafted the contract. Because the drafter of the contract is usually viewed as having more “power” than the non-drafter, so should bear more of the risk.
Practically speaking, I doubt something like this will end up in front of a jury as that is a long long road and probably not worth the time or the expense to pursue. I would try to work something out with her first if the photos are indeed irretrievably lost. That has a high chance of working. I have a friend who is a wedding photographer and she and a lot of folks in her circle seem more afraid of a negative review than anything else.
Post # 13
camenae : My deposit was $1500 (of $4500) so I’d say that would be fair. I have no intention of bringing her to court, and I’m trying to avoid a negative review because otherwise, she’s been great. I worded my email so that even if she does find the photos, I believe I can still ask for the still shots and the album. If she doesn’t have them, I’ll ask for the deposit back.
Post # 14
I strongly recommend asking for more than the deposit back so you end up there.
Post # 15
I’m a photographer and the language of this contract IS clear, whether some people want to try to read between the lines or not.
You’re liable to receive your deposit back. That is IT. It would not be in your best interest to sue the photographer because, according to the contract you signed, the photographer is NOT liable beyond the deposit.
I’m so sorry this happened, though. Things DO happen, and if she’s maintained consistent communication up to this point, and the quality of her work of the other photos is consistent with her portfolio, then you should chuck it up to that she really is apologetic for the mishap, had no control over it, and is trying to remedy the situation by recovering the photos. It doesn’t make up for the loss of the pictures, but it doesn’t look like she has to offer you anything else other than your deposit to rectify the situation if she’s unable to recover the images, so at least she is trying to fix it.