How I Reopened My Portrait Studio During COVID-19

How I Reopened My Portrait Studio During COVID-19

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:

  1. 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.

  2. 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.

  3. 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. 

The Result

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. 

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4 Comments

Lee Christiansen's picture

Whilst I'm sure virtually every pro photographer is taking careful steps to prevent Covid transmission with their work / clients / staff - here are my thoughts of the likelihood of being sued if anyone catches the virus.

Obviously the first point would be proof that precautions had been wilfully ignored to the point of negligence. OK, that one could fly - although there would be quite some wiggle room unless serious oversights were happening.

But then we get to the point where actual transmission would need to be proved - and there it all falls apart.

With an incubation period of 2-14 days, it's going to be darn near impossible to nail down a specific time or event. We can theorise of course, but best guesses don't carry so well in courts

And with that, we have the issue of Covid carriers being able to be asymptomatic for days on end - and there is no set number. We don't have any indication again when any transmission occurs, certainly not specific to a short 1hr session or so.

With all this, there would have to be proof the person infected had lived in a total isolation bubble, (except that one flawed studio session), and let's face it, whilst people are being careful (sometimes), there are very few that have zero contact with the outside world.

Now I guess if there was a multiple outbreak, linked directly to a particular set of clients - then there may some evidence. But would it be damning enough? Could blame be landed on the infected for not following photographer's guidelines.

So unless we're being particularly stupid and not adhering to standard guidelines, which let's face it are not hard to do and still work), I think the writer is being a little blasé when it comes to worrying about legal worries. [ EDIT: I re-read the piece and he's not being blasé - so sorry about that...]

But fortunately, we have public liability - which should still count as it protects us from doing stupid things rather than the usual "get-outs" that insurers love to play.

Don't get me wrong, there's nothing we should be short cutting. We're responsible pros. I run headshot sessions with me wearing a mask at all times. Clients don't touch my kit anyway. I still make them a cup of tea on arrival - but I sanitise my hands just before I handle things, and every cup is a fresh clean cup, (we Brits can drink a lot of tea...) I decided that clean ceramic cups are cleaner than porous cardboard disposables.

Viewing is done with a tethered laptop so we don't have to get close to the camera and the route to my studio area is kept as direct as possible - so no tours to the post production area. And of course it's a good idea to make contact with any client a couple of weeks after the session - just to check they're happy, (and healthy... ) The only person in my studio not wearing a mask is the subject. So an art director isn't coming in without a mask - no matter how important they think they are.

Even simple makeup is possible with additional precautions. I do basic makeup to fix shines, redness, maybe a tweak to modelling... So in addition to my normal PP2 mask there's an extra full face mask for this bit. I've invested in a marvellous electronic spinny thing which wastes brushes thoroughly in soap solution, followed by a healthy spray of isopropyl and left to dry for a day. One brush - one client. Bagged and isolated, (the brush, not the client), so it doesn't mix with my kit. Powders can actually be sprayed with isopropyl alcohol to sanitise and it doesn't kill that expensive powder, (I use a pressed type). Primers are always applied with a disposable sponge anyway, but now I ensure there is never any physical contact with the tube. If in doubt, items are isolated for 4-5 days so the virus dies off naturally. The upshot is that even basic makeup gets more expensive, and I tend to be less inclined to use it unless I need to. (Retouching is a lovely thing).

Fortunately I'm not doing family stuff, where it would be a little more difficult to keep track of things with all those people. :)

Daniel St Louis's picture

Hi Lee - I HOPE I'm not being "blasé" about precautions... :)

The whole point of the article was to cover basic steps photographers could take to avoid liability. It's by no means a thorough list of every possible precaution (you've actually done a good job of giving portrait tips yourself), but rather recommends that photographers should look up their own local, state, and national guidelines.

According to the lawyer I consulted, at the end of the day, the risk is in ignoring your local guidelines. There are plenty of business owners of various industries who are doing that.

Also, your points about proving causation in court are true, but in the American legal system, people will sue for much more frivolous reasons than "I think I got sick at your studio"...there's PLENTY lawyers out there who will take that case.

They don't have to actually WIN to make the whole issue a massive ordeal for the photographer.

Thanks for commenting.

Lee Christiansen's picture

Sorry about the blasé comment. I'd re-read my post before hitting go and tweaked it, but didn't remove that particular sentence which I'd intended to do. So no I don't think you're being blasé and I'll make a quick edit to my comment.

I'd hate to be confronted with a litigious society and fortunately here in the UK it isn't as bad as in the US - although we seem to be heading that way more and more. Here it is far less easy to bring a frivolous suit because of how our cost system works and it means cooler heads prevail.

(I'm in the middle of a very solid case against a major organisation and it took quite a lot of hunting to get a solicitor to take my case - and only because I'd done a huge amount of research beforehand. At one point I started to think UK lawyers only took cases that required zero effort...!)

We do have many major chains here in the UK completely ignoring our government mandates for how they conduct business during Covid, and these chains have official policies that they will continue to do so. They've even told me on record to "go to the police" at which point the police aren't interested. So whilst we pro photographers are falling over ourselves to keep clients and staff safe, it seems many companies don't - just as you say.

Enrique Olivieri's picture

If you're a photographer who's doing this as a career, and it's how you make a living as I do, then you've already come to that " I'll cross that bridge when I get to it" state, I did and fortunately clients had been calling and asking when I was going to start shooting again.

I don't have a studio so I travel to either a rented studio or a clients home. I definitely do my part by spraying, steaming and wiping down all my equipment before and after a shoot. I'm not going to lie and say everything is back to normal, cause it's not, It's going to be at least 6 months before I'm back up and running at normal speed like I was before Covid crap screwed us all up.