Well shit. Thats’ really the only word I can think of that encompasses the entirety of my feelings regarding the current situation. The fast spreading and constantly compounding sickness, fear and uncertainty is new to most of us walking the earth currently and is likely occupying the first paragraph of the Scary Shit I Lived Through chapter in your life story.
While we all handle things differently, when I panic I tend to get manic (rhyming words) and that basically means that I overcompensate by doing more. This doesn’t put me in the same category of people hoarding toilet paper and chicken thighs (WHY SPOKANE?) but means that my brain goes into an excessive overdrive form of damage management as fight or flight sets in. With that being said, here we go.
The Force Majeure clause (aka an Act of God)
*****FIRST OF ALL- because we live in the age of lawsuits let me first say that I AM NOT A LAWYER. I’M JUST OBSESSED WITH NOT BEING SUED so read a lot on it. Ask your attorney in your state what they think about your contract if you have questions.
Let’s not bullshit here- we are all freaking out. We are losing money by the hour at this point with the ever changing traveling guidelines and social distancing policies taking effect. If you’ve been paid your remaining balance for a postponed/ cancelled wedding, you are now torturing yourself over the morality of keeping the money (especially if you are within 30 days of the wedding and have maybe already allocated the funds) vs. the need to support your family and keep the lights on. Then we have other things that come into play like the ever lingering questions over what happens in the event that the couple can’t rebook you due to scheduling issues in the future.
Most of us have Acts of God clauses (or force majeure) in our contracts. This phrase is less monotheistic than it sounds and serves as a blanket term referring to any natural disaster or circumstances that are out of the control of the human species. The Act of God clause can also be used to cover your ass in the event an animal runs in front of your car on your way to a wedding and you are severely injured as a result. Or if the guy in front of you has a stroke and swerves into you. Or if a tree falls on you and breaks your leg. The main purpose being to remove liability for you in the event of such an occurrence. The issue now is whether pandemic is specifically going to be considered an act of force majeure. I have read several, SEVERAL articles on the subject and the general consensus seems to be “maybe.” It all depends on how you’ve worded your contract.
For example- my contract explicitly states “ In the unlikely event of unforeseen illness or any other circumstances beyond our control, or an act of God,” which according to my attorney covers not only the usual nature related Acts of God but also war, terrorism and pandemics. If you have somehow unknowingly (because does anyone think of pandemics?) put a definition of the Act of God into your contract (such as listing items considered to be an Act of God and not leaving room in the language for it to extend to other events) than you may be in jeopardy. So first things first- revisit your contract. None of us can be blamed for not remembering what’s in there all the time. We do the best we can, we’re only humans. So- what does it say there?
Be careful updating your contract in a panic and sending it off to your other booked clients for them to resign. This can cause big time problems for you. If they are uncomfortable with the changes (especially if you are changing it to reflect a pandemic outbreak allowing you to maintain their funds for eternity) than they may be less inclined to sign. They can refuse the new terms and you are still bound to the original as you both signed. If you can both agree upon it, add the new rider or ammendment into your contract and have everybody resign. From my understanding, in some instances, they can even argue breech of contract if you try to force them into new terms.
You might start by sending them an email on exactly what changes you are proposing and explaining why. When you send a revised contract, a lot of booking programs will highlight for the client on their end the places where the contract has been altered so be aware that you must be totally honest- don’t be a sneaky asshole, karma will visit you and I will curse you.
While every situation is going to be on a case by case basis and really there isn’t any perfect solution to any of this insanity, this is how I am going to be handling things going forward.
A note on returning the retainer:
I am totally blown away at the amount of photographers reaching out to me saying that their couples want their retainers back. Hear me- a contract is a contract. The language in that contract is legally binding and if both parties have signed that, then that is an explicit acknowledgement of what’s contained therein. I have seen some absolutely wild things about this. Some people are giving them back because they believe that because services haven’t been rendered then that does qualify as a null and void contract but that is the furthest from the truth. I spoke with my attorney about this exact thing (I’m in Washington state so make sure you consult your own) and it’s exactly how he told me- a retainer is a fee you pay to RETAIN services. Lots of service industries have them- even lawyers themselves. If the retainer in your contract says it is nonrefundable, then its nonrefundable. If you apply to their total balance, as most of us do, then that’s nice of you too. Also, there are things like engagement photos, boudoir, etc. that have already been taken- time with emails, texts and phone calls-depreciation and maintenance for the devices that you used to conduct business with them for however long- possible travel that has been booked or already undertaken as a result of that specific booking, not to mention if you’ve already booked a second shooter. The retainer is almost always put towards costs that are occurred as a result of booking the wedding, PRIOR to it even happening.
And remind your couples of this- EVERYONE is in a bad situation right now. We all have families to feed and lights to keep on. If your contract say NONREFUNDABLE RETAINER- then it is just that. A Non REFUNDable Retainer. Do not be guilt tripped or made to feel bad to return it.
My bottom line on it is this- I’m truly so sorry about your wedding and I will be there for you if at all possible because I absolutely care, however- the retainer is not refundable.
Only in the last five days have things really gotten crazy in the US and I definitely sense an air of uncertainty with my couples who have weddings in the next couple of months. They have no idea what they should do. What a horrible position to be in. Watching them go through various stages between panic and anguish and indecision has been the absolute worst. They are wrestling with how much investment they will potentially be losing, worry over their guests being exposed to come to their wedding and just the bottom of the barrel heartbreak that comes with earth shattering disappointment. My heart breaks for them.
Back to business. Here are the ways I’m going to be handling any postponements for 2020.
- No cancellation or change fees will be applied to any new or existing weddings for 2020. IF the wedding absolutely has to be moved to 2021 due to venue availability or something like that, then the change fee listed in my contract will apply as it would take a Saturday and thus prevent me from being able to book another wedding in a new corporate year, which equates to a loss of income. Preserving as many Saturdays as I can in 2021 from being collateral damage is my ultimate goal.
- Weddings who have paid their full balance (within their 30 days) will not be refunded as I have full intentions to shoot their rescheduled wedding. HOWEVER– if it ends up being that I cannot shoot their wedding, I have decided to refund half of the balance of their final payment (does not include the nonrefundable retainer) OR give them the option to have their wedding photographed by an Associate Shooter. An Associate Shooter in my definition is someone with a PROFESSIONAL ability who has proven that they are CAPABLE of running a wedding day themselves that I have significant confidence in to satisfy the needs of my clients in my name. I will have them turn all RAWS over to me for culling, editing and delivery.
- Weddings that need to postpone will be provided with a link to my Calendly so that A/ we don’t have to do all the back and forth over texting and B/ they can just access it as they find out the venues available options and pick the best date for everyone.
- Couples with existing bookings will be offered the aptly named Social Distancing package- for those who still want to “I do” when they can’t do. This will allow them to convert their existing wedding package into a series of smaller events that they can mix and match depending on what their current package is. The basis is this:
Social Distancing Package
4 Hour Elopement (getting ready, vow exchange, portraits)
Party/ Family Photos (must be scheduled on a Thursday/Friday during a time in the uninfected future)
You have the option here to give them various add ons that would get them up to what you deem is equitable to the package they have booked with you. Ideas would look like:
- Another Bridal Session
- In Home session
- Anniversary Session
- Print or Album Credits
You can add whatever you want that fits your brand and business here, but the goal is to give the couple an option that still allows them to get married, while also maintaining your own financial viability AND producing new work. One of the most interesting aspects to this pandemic is how people are adapting and to say that they got married during this time in history is an unusual and unique story that no one else will have. It’s not ideal, but it’s better than nothing.
Above all, love on your clients with your words and soothe them with your flexibility.
With Compassion and Empathy
None of us can really predict what’s going to happen. At this point it’s all up in the air and that’s the scary truth. We don’t know where we will be in a week, let alone 6 months. This doesn’t have to be all bad though. There are unexpected gifts if you choose to open yourself to them. The forceful freeing of time gives a chance to check in on areas of our lives that maybe have gone neglected. To finish that book or that painting or that knitting project. To color on the floor with our kids and have extra time in the love nest with our partners. It has haulted the rushing of our feet and brains and we are now entering into a slower phase of life. That doesn’t mean its all Netflix and self care but it does mean that you can be productive in areas that need it.
As a small business owner, you can update your website finally. Do a rebrand. Start brainstorming projects. Re- evaluate your financial processes and implement new ones(read Profit First). Look for weaknesses in your workflow. Automate. Make guides or create the presets you’ve been putting off. You FINALLY have time to set up that Mail Chimp account, for fucks sake. Amazon prime a label maker and plaster dates on your hard drives. Check in on your back up system. Clean out your desk drawers. You can also start making a big push for 2021 weddings by checking in on your Pinterest account and other marketing avenues. Let everyone know you’re available for mentorships or consulting via Skype. Even though the service side might be at a standstill, you, as a small business owner, have a shit ton of work to do.
And let us always try to bear in mind that everyone is hurting. It’s better to speak from a place of empathy even if you don’t agree with their decisions. Things are just going to get more complicated and kindness goes a long way. Find betterment, not further depression, in your quarantine. We’ll get through this.
Thank you so much for the organization and well thought out information! It truly helps from many points of view. Question for you, how do you (or do you at all) handle requesting/requiring informing you of anyone testing positive that attended a wedding (or event you’re photographing) within X amount of time? Does that make sense? Thanks again!