Let’s say you are hired to photograph a wedding by the bride and groom, who also sign the contract, but the father of the bride pays your fee. You shoot the event, edit the photos, and send the bride and groom the album. They love everything and are very pleased with you. The father of the bride, however, is unhappy with the photos. He hates them, thinks they are unprofessional in quality and wants a full refund. You say no, and he decides to sue you for the refund. 

Can he do that? Simply put, no. The father of the bride cannot sue you under the contract you have with his daughter because he is not a party to that contract; he didn’t sign it, and he didn’t bear any obligations under it, unlike his daughter, who was obliged to not only pay for your photography services, but also to show up herself and be photographed. He didn’t receive a benefit from the contract, unlike his daughter, who received a set of wedding photographs with which she is pleased. The mere fact that he paid for part of the photography services on behalf of his daughter does not give him a right to sue on her behalf.

Going further, what if the father of the bride both paid and signed the contract? In that case, he can sue you, because he’s a party to the contract. Merely paying for the services doesn’t make you party to a contract, but execution of a contract does make you a party; it gives you both the benefits and the obligations of the agreement. If the father of the bride is a party, he is receiving the benefit of photography services, even if he is giving that benefit to his daughter, and he is the one who bears the obligation to make sure his daughter shows up. Similarly, if only the bride signs and pays for the contract, then she is the party, and only she can sue, even if her spouse ultimately hates the photos. If the bride pays but only the groom signs, then only he can sue under the agreement. The ability to sue under a contract—what we call “standing”—does not follow consideration. The person who signs can sue. 

In another scenario, you are hired to shoot an event for a nonprofit so that they can post the pictures on their social media. They sign your contract, which includes usage rights for social media, and they pay you. You shoot the event and send them the pictures. They love them and decide they want to use one of them for a billboard in town, and so they ask you for a license. You send them a license agreement stating that they can use the photo so long as they don’t edit it and that they credit you. You don’t charge them for the license, because it’s a nonprofit you care about and you know they don’t have much money. A few weeks later, you see the billboard up in the middle of town, and you’re furious because they credited you but they also edited the photo and it looks terrible. Now everyone who sees the billboard will think that you took this picture. You sue them and ask for an injunction on the billboard. You’re not asking for damages; you just want it taken down and fixed. They respond in court stating that the license you gave them was invalid for lack of consideration—because you didn’t charge them—and so the editing restrictions don’t apply. 

Can they do that? Simply put, no. In fact, in this case, whether the license is valid is completely irrelevant. If they had put up the billboard with the altered photo without the license, it would have been infringement, and putting up the billboard with the altered photo with a license is still infringement. Under no circumstance did you allow them to edit your photo. 

A good rule of thumb is to have whomever you are photographing (not necessarily the person paying you) and whomever is receiving the final images sign your photography agreement. 

Aaron M. Arce Stark is a lawyer for artists and entrepreneurs. Learn more about his law firm, Arce Stark & Haskell LLP, at ashlawllp.com.

This article is for informational purposes only. Contact a lawyer for legal advice.

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