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During your time as a professional photographer, you’ve probably been hired to shoot at least one wedding, right? You know first-hand that a bridezilla isn’t just something that appears for half an hour on TLC. They’re real creatures(!) and they can ruin your business if you’re not careful.
So let’s enter a bride-zilla scenario, shall we? Let’s say the bride-to-be’s name is Lindsay. Lindsay has been dreaming of her walk down the aisle since she first learned to say, “I do.” In her head, Lindsay will be the most beautiful bride. She loves your candid style photography and already has imagined what the shots will look like. After the wedding, Lindsay sees the photos. She starts to cry. Not because they’re beautiful, though. She screams at you, mascara running down her cheeks, “THESE AREN’T WHAT I IMAGINED!” She points to one photo that is really upsetting: the one where her younger sister looks a little better than Lindsay herself.
Now these are perfectly good photos -- but they aren’t what Bridezilla had in mind. So Lindsay pulls out her phone and starts slandering your professional photography business all over the interweb -- on Facebook, Yelp, Twitter. You name the social media site and she’s written a terrible review of you for every potential new client to see. She tells her coworkers, her friends who are brides-to-be, even some random person on the street, “Don’t ever work with this photographer!”
Can you stop Lindsay from bad-mouthing your business? No. But you can spell out the possible repercussions to Lindsay, and any other bad client for that matter, with a non-disparagement clause for professional photographers.
A non-disparagement clause communicates to your client the potential fine or punishment they will face if they publish a negative review or post about your services. This means that if you included a non-disparagement clause in Lindsay’s wedding photographer contract, she would be liable to pay you damages (defined by you) for her social media posts.
These clauses are standard in new employee contracts, and are now being more and more common in contracts for the service industry, like photographers. Since you are your business, it helps to have a safety net when someone bad mouths you. You can’t just hand off a potential job to another employee -- if someone doesn’t want to work with you, they just don’t!
Though courts are still assessing non-disparagement clauses for validity (see recent cases here and here ), adding more reasonable fines in the contract seem to keep both the customers and service providers happy.
Having a well-communicated non-disparagement clause for clients can help your customers know exactly what is expected of them. It also provides a great source for you and your business if an incident like Lindsay’s goes to the courts. The easiest formula for drafting a non-disparagement clause is defining the medium as well as the liquidated damages.
This is where you will state the specific act that amounts to “disparagement.” You have the power to define what negative statements, reviews or comments will be seen as disparagement. Only acts that are defined will be valid, so make sure you think of all possible scenarios that might affect your photography business. You also must identify the type of medium. This can include all types of communication, electronic or written. It also helps to define what platforms potential disparagement includes. For example, explicitly state Yelp, e-mail, text message, LinkedIn, Twitter, etc.
By defining the medium, you are letting your client know what you will consider disparagement. However you have not yet included what an disparagement act will cost. In the liquidated damages section, you tell your client what penalty or fine will result if a negative review still shows up. Liquidated damages are pre-determined fines or penalties that your client agrees to pay if they breach the non-disparagement clause. (Need more information on liquidated damages? Read some examples here .)
So after you define the medium and the liquidate damages, your non-disparagement clause should look like this:
For purposes of this Section, “disparage” shall mean any negative statements, reviews, comments, or feedback, whether written or oral, about Photographer or services provided by Photographer [insert people, companies, products, etc.].
Client agrees that they will not disparage Photographer, or post any negative statements, reviews, comments, or feedback about Photographer or services provided to any third party whether orally or in any written publication or online forum, chat room, or message board, including but not limited to Facebook, Twitter, and Yelp.
Parties agree that it would be impracticable and extremely difficult to ascertain the amount of actual damages caused by a failure to comply with this provision. Parties agree that in the event it is established that Client has filed to comply with this provision, liquidated damages of _____ (insert amount after consulting lawyer) shall be payable.
Though many professional photographers are outgoing with a camera in hand, some trouble can arise when it comes time to discuss the contract. When including a non-disparagement clause in your photography contract, it is important to sit down with your client and make sure they know what is expected of them. Many times courts will not accept a non-disparagement clause, even when they are in a contract, because the client has not seen it. Since these clauses are new for service-based businesses, it is important to discuss and explain the clause in detail. If you are in court and your client claims to have never seen the term in fine print, the judge will most likely side with your surprised client. As the service provider, it is your responsibility to communicate with your client -- it might just save you a lot of time, energy and money!