Unfortunately for professional photographers, according to most current estimates, COVID-19 looks like it will be sticking around for quite a long time — perhaps years.
If you haven’t already reopened, most photographers will soon need to start offering services again — even though the risks of transmitting the disease remain as severe as ever. At my portrait studio, HeadShots Inc, I’ve resumed work, but the sessions are more spread out, hand sanitizer and face masks are fully stocked, and clients have been nudged toward outdoor settings. However, I’m pretty much constantly worried about the liability involved in operating a business during a pandemic.
So, before fully opening my business again, I sat down with my friend, Kiel Green, of Emerald Law PLLC, to chat about the best way for photographers to avoid legal liability when operating during COVID-19. He was happy to provide some guidance to the Fstoppers community on how to operate during pandemic conditions.
Disclaimer: I am not a lawyer. I collected this information with help from Kiel. He is a lawyer. However, he is not your lawyer. This should not be construed as legal advice for your business or your particular situation.
About Liability for Photographers
Before I cover the steps I took at my studio, some photographers might wonder what liability is?
Liability deals with what you owe to others (in this case, clients) and has two components — responsibility and causation. Essentially, you have a duty not to harm your clients due to things that you could reasonably control, and failing to do so is negligent. If a plane crashes into your studio, you probably don’t have any liability for your client’s injuries, since there’s not really anything you could have done to prevent it; if a light falls on someone during a shoot, then you probably do.
In pandemic conditions, you can be liable for all types of expenses. If one of your clients gets sick, you could be liable for anything between $0 on the low end (since it may end up being a workers’ compensation claim and covered by insurance) and $1M+ on the high end if you end up being responsible for lost wages, medical bills, and any long-term damage.
How COVID-19 Liability Affects Photographers
My main source of anxiety was coming from uncertainty about how COVID-19 would affect my business operations. Commonplace services like on-site “headshot days” for big groups now seem risky. Even for individual services, some customers were making impossible requests like: “Can you take my headshot through my laptop?” I’ve taken a couple of business law classes in college, but because there hasn’t been a pandemic of this scale in a long time, there’s very little history/guidance to follow.
Step One: Thought About My Risk Areas
In my situation, I don’t have any employees at my studio, so the biggest source of risk involved accidentally infecting a client or their relative. However, if I had employees working at my studio, I might also be responsible for their health while they’re working. Just like in the example about the plane crash versus a falling light, if you do something negligent and your employee gets hurt, you would also be liable. It’s important to research what elements of your business are risky, because that will help you narrow your research during step two.
Step Two: Researched All Local/State/CDC Guidelines for Affected Services
The first question I asked Kiel was: “If I follow all guidelines from local authorities, will I be safe from liability?” He said:
There’s a tendency for lawyers to never give real answers on these kinds of things, since we’re worried about being held, well, liable, for any advice we give that might not have been spot on. In this case, I’m going to say no.
Apparently, the whole idea is centered around being negligent — not doing the right thing. So, if you are following every local, state, and federal guideline, it’s going to be near impossible for you to be found liable. That being said, this is America, and anyone can sue anyone for anything. But if you did everything right, and someone sues you for them getting sick, you have a solid defense.
So, the second step I took to reopen my studio was to review the guidelines on the local San Francisco website, the California state website (state information can be different from local), and recommendations from the CDC.
Step 3: Took Immediate Action
You should be taking the same steps any business would always be to avoid liability. Kiel’s recommendations are the same — reducing liability and mitigating risk comes down to three things:
Choices: do the right thing, don’t take unnecessary risks, and err on the side of caution. Follow the local, state, and federal guidelines! I have these literally memorized and printed on my studio wall.
Contracts: to the extent permissible by law, have customers sign contracts alleviating you of responsibility for anything outside of your direct control. I implemented a section in my “terms and conditions” when clients book on my website.
Insurance: for anything your choices and contracts can’t protect, there’s insurance. Having a strong general liability policy is so important. Business owners skimp on insurance because they view it as an expense, but if something goes wrong, it can save your business. I’m currently researching options for providers here.
When in doubt, you don’t want to push any boundaries. If the environment for a particular shoot seems risky or dangerous, err on the side of caution.
According to Kiel:
At the bare minimum, follow all government and health agency recommendations. At this point, that means ensuring everyone is wearing masks (they can’t wear masks in the photos, but otherwise, they should be), staying socially distant, providing hand sanitizer, potentially checking temperatures, etc.
It would also be a good idea to restrict the maximum group size and consider moving photography sessions outdoors when appropriate.
Step 4: Adjusted My Advertising
The last step was to adjust my online advertising. Clients are actively looking for photographers who will religiously follow all guidelines. So, all of my advertising now includes a description of what steps I'm taking to keep my clients safe. Platforms we updated include our website homepage, Google ads, Yelp profile, and LinkedIn/Facebook pages. I've also released a blog post on my website that covers the steps I'm taking to keep my studio safe.
Following these steps, I've been able to book at approximately 80% of pre-pandemic numbers for individual sessions, which is a lot better than most businesses are doing. Hopefully, my research and experience will help you get your business reopened safely too.
After this whole process, I definitely recommend seeking out an experienced lawyer who can give you personalized advice based on your individual situation. In the meantime, this info should help you get started.