If you’re anything like other photographers in summer 2021, you’re likely up to your eyeballs with clients, editing, and post-processing work. Busy would be an understatement! Usually, you wait to hire associates until your photography business starts to grow and you’re overwhelmed with the amount of inquiries coming in. But, right now, many photographers are having to bring on associates temporarily to help ease the burden of client overload. While it's extremely important to bring on associates that will basically replicate your photography and overall client experience, it's also extremely important to bring them onto your team legally. Keep reading to see the most common legal issues with hiring associate photographers and how to avoid them.
Confusing “employees” vs. “contractors”
Let’s start with the issue of “employees” versus “contractors”. This is a huge legal issue because contractors and employees are very different in terms of taxes, what they can do, employment laws, and insurance. If you hire a contractor but treat them as an employee in all legal senses, you will be audited by the IRS and/or your state government if they deem it necessary. Then, if you’re found to have misqualified them as a contractor when they should have been an employee, you could face penalties, fines, back taxes, and potentially a lawsuit from your worker.
Let’s go over the difference between the two. An employee is someone that follows your sole direction, has set hours of work, and is required to do very specific tasks assigned to them by you. If this is the case, you are responsible for providing proper tax documentation and paying certain taxes, workers compensation and unemployment insurance as required by your state, paying for costs incurred, and all other employee-based regulations. A contractor is a person that works events under your brand name but typically has their own photography business on the side and only takes on a set number of contracted events for you. You do not need workers compensation or unemployment insurance for them, don’t need to put them on payroll, and don’t need to pay your share of taxes for their work. Essentially, a contractor is someone that works for you occasionally on their own terms, whereas an employee works for you regularly on your terms. There are many legal guidelines that vary from state-to state regarding this matter so make sure to review those laws when hiring an associate.
To sum it up for associate photographers: you can hire them as contractors so long as they have their own photography business and licensure, work for you only a few times a year, and have the ability to say ‘no’ and control when they take on work.
Equipment and insurance
When you hire an associate as a contractor, there are also two main things they should provide; 1) their own photography equipment, and 2) their own business insurance. Personal equipment is necessary for contractors primarily to show they are not your employee (this includes using their own memory cards!) but also to ensure your equipment is not damaged. If your equipment is being used by someone else and is broken, it is likely that your insurance will not cover the costs (as they are not listed under your plan and/or are excluded from coverage under your insurance’s exclusions). This goes hand-in-hand with the contractor having their own insurance. If someone is hurt while your contractor is on the job, equipment is broken, someone does something negligent, and so on, the contractor needs to have their own business insurance to cover that. That does not go to say you will not be held additionally liable as it is still your brand hired to do the work that you subcontracted out, but it will mitigate a bit of the damages or costs incurred. This means that when signing a contract with a contractor, they need to sign a clause stating they have insurance and provide documentation for verification. Make sure you keep all of this on file for an audit!
The Use of Your Photos and Talking to Clients
This is an issue that can cause a detrimental impact to your business. When associates take photos for your event, those materials should be legally owned by your business. The primary issue here is if the associate photographer is an employee or contractor. If they are an employee, the photos are automatically owned by your company immediately when the shot is taken because of what’s called ‘work made for hire’. Under this legal theory, a work created by an employee within the scope of his or her employment is a work made for hire. The employer for whom the work is made is the "author" of the work for copyright purposes and is the owner of the work's copyright. But, a contractor actually owns the copyright rights to the photos they create! Thus, they must transfer or assign those rights in writing to the other party to comply with federal copyright law. This is a clause you absolutely must have in your associate photography contract when hiring a contractor.
Along these same lines, even though you’ve made sure your business owns the photos, how do you want to go about an associate using your photos later on for their own portfolio? I’ve seen many issues come up with associates claiming or using photos for their own advertising and it becomes extremely confusing to current or future clients if that situation isn’t handled correctly. This is a typical case of copyright infringement which should be strongly guarded against in all employee and contractor contracts. Some photographers allow photos to be used in associate photographers’ galleries after the event has passed (usually at least after 8-12 weeks once your edited photos have been published online and given to your clients), while others do not allow the photographs to be used at all. Either option is perfectly acceptable but it needs to be very expressly stated in your contract what they can and cannot do because it is claiming representation of your brand as their own and could amount to copyright infringement if they use the photos improperly.
Another issue that you need to be prepared for with associate photographers is solicitation and competition. Similar to using your business’s photos, occasionally associate photographers may try soliciting their own photography services to guests or clients while working an event for you. For example, if your associate is handling a wedding and guests mention they are looking for a photographer, they may try to offer their services instead of yours. This is not only taking credit for your work but stealing potential clients and contracts. In order to avoid this, you should have either a confidentiality clause in your contract or a non-disclosure agreement (aka NDA) attached to your contract AND a solicitation clause in your contracts. A solicitation clause states that associates cannot promote their services or represent themselves while working an event under your brand. And a confidentiality clause (or NDA) will ensure they keep all your business’s information confidential while working for you. One last point here--you may add in a noncompete clause to EMPLOYEE agreements stating they cannot work within a certain proximity of you for a duration of time after working for you. Note this is NOT allowed for contractors!
Fees and expenses
For employees, you will pay them hourly or salary via payroll and all expenses they incur while working for you will need to either be covered by your company or reimbursed. For contractors, an associate photographer must invoice you separately for each event they work for you. We also suggest having them have a set fee on the invoice for their work instead of being paid hourly, so they don’t look too much like an employee. Thus, if you agreed to $100 an hour for their work, and they worked an 8 hour wedding for you, they should invoice you a total of $800 flat for the event without breaking it down into hours. You will then pay them the $800 flat and they will be responsible for their own taxes when they report that 1099-MISC income on their tax return. Remember, everything you do, especially financially, needs to clearly show that a contractor is not an employee.
Overall, the use of an associate photographer is great if you need immediate help with your current client load, or want to expand your business and take on more clients. It is a very common practice used in the photography industry and is definitely worth considering. However, you should always be aware of legal issues that come along with hiring an associate photographer. Most importantly, make sure you use the proper contracts as a way to protect your business from potential issues. TLP has both an Associate Photographer Contract for Employees and an Associate Photographer Contract for Independent Contractors, and an Associate Photographer Clause Bundle that you’ll need to add into your client contracts.
THIS BLOG POST IS NOT A SUBSTITUTE FOR LEGAL ADVICE. EVERY SITUATION IS DIFFERENT & IS FACT-SPECIFIC. A proper legal analysis is necessary based on your location and contract. Consult an attorney in your home state for advice regarding your contract or specific legal situation.