Before we begin, it’s important to understand that how covered you are in terms of cancellations depends on your contract and the jurisdiction in which your contract was executed. States have their own laws and common law doctrines regarding such important points as force majeure, impossibility, impracticability and frustration of purpose.

Always talk to a lawyer familiar with your own state laws and don’t be afraid to ask your lawyer to update your contracts.

[Read up on “A Photographer’s Guide to Navigating the Stimulus Bill, Cancellations and More”]

1. HOW DOES A PHOTOGRAPHER CANCEL? CAN THEY INVOKE A FORCE MAJEURE CLAUSE? 

First, we have to ask whether you, the photographer, can cancel your events. Let’s say that you are not yet under any sort of quarantine or state-mandated travel ban, but you simply have family members who are immunocompromised and you don’t want to run the risk of catching the coronavirus and passing it along. Can you cancel? 

Take a look at your contract. Is there a “Cancellation” or “Incapacitation of Photographer” clause, or something similar? Does it list some potential reasons why the photographer may cancel, such as illness, injury, death in the family, etc? If so, this may be enough to allow you to cancel. Be careful, however; some contracts may specify that the photographer themselves must be sick, but if the contract merely says “illness,” then you can argue that the threat of a potentially fatal illness to a family member or loved one is a sufficient threat to allow you to cancel. 

What if your contract doesn’t have an illness provision? See if your contract contains a force majeure provision. It is a clause that says something like, photographer is not liable for inability to perform their services due to a force majeure event. Force majeure, otherwise known as “acts of God,” are those events which are “unforeseeable” and “unavoidable,” and which (obviously) prevent you from performing your services. This includes things like large scale natural disasters, wars, and—potentially—pandemics. It does not include things like natural weather patterns (rain is not a force majeure) or predictable diseases. You could argue that the potential to bring home the coronavirus to an immunocompromised family member constitutes a force majeure event, but you would have to prove that this danger was both unforeseeable and unavoidable. A global pandemic is pretty unforeseeable. But you may have trouble arguing that the risk is unavoidable—you could, after all, shoot the wedding in a face mask and latex gloves, wiping down all your equipment with sanitizing wipes every few minutes. Other factors will affect whether you can lean on your force majeure clause. Perhaps it’s not a family member who is immuno-compromised, but you yourself; in this case, arguing force majeure gets easier. Perhaps your state or country has issued travel bans that prevent you from attending the wedding, or has banned public gatherings—this is almost certainly a force majeure event. 

What if your contract doesn’t have a force majeure clause? You may still have some chance of being able to cancel without breaching your contract, depending on what state holds jurisdiction over your contract. Most states have a common law doctrine of “impossibility,” which generally allows a contract to be canceled if performance of your duties has become “objectively” impossible, or such a fundamental change has occurred that it would be “unjust” or against public policy to hold the parties to the agreement. The potential spread of a pandemic-level viral outbreak can definitely be against public policy, but be warned—many states have strict definitions for what constitutes impossibility, and require that you have made “reasonable efforts” to surmount the obstacle to performance. What exactly constitutes reasonable efforts to surmount a pandemic is pretty unclear, and we imagine there will be many cases splitting this hair in the coming months and years. Be further warned that in some states, merely having a force majeure clause in your contract precludes you from claiming impossibility, because for an event to make it impossible for you to perform your duties, that event must be “unforeseen” and if you’ve planned for unforeseen events enough to have a force majeure clause, then you should have a plan for what happens if you can’t perform. It’s a little mind-bending, but for the most part it’s enough to know that if you have a force majeure clause, you don’t need to worry about claiming impossibility. 

There are other doctrines that may be available depending on your state. Some states have a doctrine of “impracticability,” which is a lower standard than an impossibility, requiring only that you prove that performance of your duties has become so difficult and expensive as to be impracticable, even if still technically possible. If you live in such a state, and you’re in such an above-described scenario as needing to cancel because of an immunosuppressed family member, you may still be able to cancel without breach. It’s still technically possible for you to perform by wearing a mask and gloves and wiping everything down, but it may become so difficult and expensive to do so that it becomes impracticable. 

[See our COVID-19 resource page for business information and creative inspiration that will help you rise to the occasion.]

2. CAN A CLIENT CANCEL OR INVOKE A RESCHEDULING CLAUSE? 

Most contracts will allow the client to cancel or reschedule for any reason; we all know that weddings can be fickle events. The client typically will not have to prove a force majeure event or the impossibility of their performance in order to back out—most contracts simply require them to forfeit their deposit if they cancel. Similarly, most rescheduling clauses will allow the client to reschedule their event without cause. Some contracts will require the client to pay a new deposit, while other contracts will allow a client to transfer their deposit to the new date, if the photographer is available on the new date, and some others will require the photographer to refund the deposit if another event can be booked on the canceled date. It all depends on the specifics of your contract, and usually clients have most of the power to cancel or reschedule.  

But here’s the big question: What if a client wants to cancel or reschedule, and wants their deposit back? What if, for example, the client has a family member or members who is or are immunocompromised, and they want to cancel their wedding to decrease the chance of infecting their guests, even without a state travel or gathering ban? Can a client invoke the force majeure clause in their contract to get their deposit back? 

Once again, it depends on the wording of your contract. In general, and in theory, the answer is no. A deposit, booking fee or retainer—depending on the wording of your contract—is payment for services you’ve already rendered, because it is payment for reserving the date of the wedding. You reserved that date, and prevented yourself from being able to make money from someone else on that date. It is possible that your client could attempt to invoke force majeure to get their deposit back (after all, they hired you to be present on a certain date, and forces outside their control have made that date impossible). But the client would have to prove that the circumstances causing the need for cancellation are both unforeseeable and unavoidable, and for a wedding, that’s much harder for a client to prove. They can (almost) always simply reschedule the wedding for another time, when the viral outbreak has been contained. Very few people need their wedding to occur at a specific time; it may be difficult to reschedule, considering all the moving cogs in a wedding event, but it’s not impossible, and we know for a fact it’s not impossible because most contracts will have a rescheduling clause. The fact that the contract drafter contemplated rescheduling means that it’s neither unforeseen nor impossible to handle. 

3. IN THE EVENT OF CANCELLATION, CAN THE PHOTOGRAPHER KEEP THE DEPOSIT? 

Again, it depends strongly on the wording of your contract. Most contracts that require a deposit allow the photographer to keep the deposit if the client cancels for any reason. Most contracts also allow the photographer to keep the deposit if the client reschedules. For the reasons above, most of the time a client will not be able to claim a force majeure event, for the simple fact that most weddings can be easily rescheduled by the client—something that the photographer cannot do—which is why a photographer has more chance of claiming force majeure or a related doctrine than a client does. 

Read your contract carefully, and ask a lawyer to help you understand any parts that are unclear to you. Talk with your lawyer about getting adequate force majeure provisions into your contract—you should be able to not only cancel an event for a force majeure event such as a pandemic, but also to keep your deposit. Make sure you know what lines your own contract has drawn for you. However, once you’re sure of what you can legally do or not do, consider leniency. Many clients are just as concerned about the coronavirus as you are, if not more, and many did not expect to have their big day overshadowed by a plague (even a relatively mild one like the coronavirus). Deposit refunds and leniency in rescheduling fees may help you keep good client relationships in trying times.

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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