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It’s not that you use or hire Associate Photographers, it’s how you use or hire them and what written agreements you have in place. Or… have you really even hired them at all?
It would help if all photographers spoke the same language. But we don’t. I’m not talking about linguistics. I’m talking about terminology. We’re all pretty clear on what a lead photographer is, and most agree that a second shooter is what it sounds like – a second photographer working with a lead, or primary, photographer.
It turns out we’re really just taking it for granted that we’re all talking about the same thing.
A note about capitalization: While capitalization of certain words may seem inconsistent, this is intentional. Job titles here are only capitalized when referred to specifically as such. I mention this because I know it will drive some people up the wall if I didn’t explain. Enjoy.
Another photographer and I were in a discussion. She was in her second year of business. Let’s call her Rita.
Rita explained how she used the help of others for her business. I followed along with my understanding of what each title meant. Assistant. Associate Photographer. Second Shooter. We were trying to get to the bottom of a problem she was having with a photographer who had done some work for her but had left a bit of drama behind as their relationship fell apart.
She explained that her Second Shooter (her words) had edited and delivered photos to the client before the client had paid their contract balance. To make matters worse, the client was unhappy with the editing style, so refused to pay. Her Second Shooter was non repentant, explaining that she always delivered directly to the client.
My standard go-to is always, “Well, what does your contract say?”
Rita began to lay out the details of her contract with the client who hired her for photos.
“Not that contract,” I interrupted. “Your contract with your Second.”
As I feared, Rita admitted there was no contract because, “I got sick right before the wedding and sent her as a replacement. But we agreed she would send me her final edits and I would present them to my client. She said she had just gotten so busy that by the time she finished, she had confused them with her own client work and delivered them along with her own galleries.”
“Hang on a minute. I thought you said she was a Second. Was she hired as a Second and then took over when you got sick?”
“No, I hired a Second Shooter because I got sick.”
“Okay, let’s start over…”
Words matter
In case you haven’t figured it out, Rita was not describing a second shooter at all. A Second is exactly what it sounds like, a second camera working with a primary, or lead, photographer. Instead of a Second, the photographer Rita hired stepped into the role of primary – in fact, only – photographer. It’s little wonder things ended in confusion. They started that way.
It goes without saying that contracts are important. Not only do they lay out the details of the work to be done, they define the relationship between the parties. When you are hired to take photographs, you understand the relationship between you and the client who hired you. Contracts are also important – for the same reasons – between you and the people you hire to perform work on your behalf.
Photographers often hire other photographers to help fulfill work for their clients. They are hired with certain responsibilities, depending on what is needed. Sometimes the job requires a second shooter. Maybe it’s an assistant to help move and set up equipment, direct poses, and generally be an extra set of hands and legs for the photographer. Other times, as in Rita’s case, it might be an all out replacement or alternate when the primary photographer can’t make it, or is obligated elsewhere.
IRS: All paid helpers are not created equal
Not long ago, it used to be easy to just grab a willing and able person, have them do the job, then pay them to be on their way until you needed them once again. Many people still run businesses this way, photography included. As long as everything was booked and reported properly, there were no issues.
Over time, laws have changed compliance requirements. States are weighing in on employment issues, defining exactly who is and is not an employee. The result is a greater burden on the business owner, not just in reporting requirements, but in keeping a paper trail for anyone paid through your business in case the question of employment relationship ever comes up.
This means you must understand who you are hiring, what you’re hiring them to do, and whether or not the conditions of their work for you make them an employee or “non employee”. In photography, that non employee is typically an independent contractor.
To bring Rita’s situation back into play, sometimes it really does matter what you call things. Especially if those things typically have certain relationships and work requirements that help determine the big question of employee or non employee. Even then, different photographers have different definitions for job titles. While it’s fairly standard to define a Second Shooter the same way across businesses, an Assistant can cover an almost limitless scope of duties. An assistant who works regularly and exclusively for you at a time and place you dictate is most likely an employee. Whereas an assistant who provides services for multiple photographers as their own business enterprise could be categorized as a contractor.
All associate photographers aren’t equal, either
The real can of worms is the associate photographer. Interview five different (primary, or “brand”) photographers about their definition and relationship of titled Associates used in their business and you’re liable to get at least three different scenarios. About the only agreed definition in common is that associates are a replacement or alternative when the brand photographer is unavailable.
There you have it. Associates are substitutes.
Or are they? What about the company who has no individual brand photographer? What if the company itself is the brand? Think ACME Photography instead of John Smith Photography. While the business has an owner and that owner may be a photographer, all work might be done by others. Every photographer is an Associate!
At least that’s what the Boss calls them. Really, if you’re that boss, you can call them whatever you like. There’s really no consistent model of what constitutes an Associate in a business. Photography seems to have borrowed from other professions and adopted the term associate because at the least it is understood to mean someone other than someone else working through the same business.
Meanwhile, outside photography, the term has broad uses, some of which are actually regulated, such as “Associate Broker” in some states. The other extreme is just a nice way for a retailer to make their employees feel more special. Think of that big box retailer where you probably buy your toothpaste and toilet paper.
As far as running your business, though, the arrangement you have with your Associates, and the way they are assigned and do the work, are critical matters. Those details determine the type of employment relationship you have. This, in turn, affects your obligations, expenses, liability, reporting, and many more issues. Not the least of these issues is what type of employment contract to use, and what to include in that contract.
Take a look at how you use associates in your own business. If you’re not yet to that point, read some descriptions on websites of other photographers. They usually provide this information as a way to soothe potential clients into the idea that they just might end up with a second choice photographer, but it’s okay.
There’s absolutely nothing wrong with this and full disclosure to your client up front is always best. Ultimately, the client probably cares little about how you operate with your Associate, as long as they are assured they’ll have the photos they want.
As we’ve already pointed out, where this does matter is on your end. While your client may not care, the IRS, and your state revenue department care very much. And if something bad happens that should have been easily covered with the right contract, you’ll care very much, too.
If asked what the employment relationship is with their associate photographers, the majority of business owners would probably say that their associate photographers are independent contractors. But are they really? We would need to look at each photographer’s business model individually to know for sure.
Consider how an individual business (“Brand”) uses associate photographers
By now, we understand that different employment conditions create different employment relationships that require different agreements. It’s no longer as simple as saying, “If they operate as their own business when they’re not working for me, they’re definitely independent contractors.”
Are they independent operators with their own businesses who only work for the Brand as the need arises?
They’re probably independent contractors. But do they have a blanket contract or a new and separate contract for each new assignment? Are they sent off to various locations with limited guidance and their own equipment? Or are they merely a proverbial finger on a shutter button that the Brand otherwise controls?
Are they primarily a team within the Brand who rotate through regularly?
Once upon a time, if we had control over scheduling, those we controlled were employees. If associates are assigned rather than offered, and they do no significant photography work outside the Brand, they might just be employees. This is especially true if the Brand has a frequent work location like a studio or regularly used off-location set.
Are they exclusive to the Brand, or do they freelance for others as they wish?
Freelancers are the traditional definition of independent contractors. They will probably never be direct competition because they don’t solicit the same clients as the Brand. They only work for other photographers. But even a freelancer can fall into the employee category if they work exclusively for a single Brand under certain other conditions.
Did they require training to be a seamless representative of the Brand or is creative agency expected or even allowed?
Independent doesn’t just mean responsibly for their own taxes. There’s nothing wrong with training a novice or less experienced person how to take the required photos. This is how many photographers get started and it’s probably the best way to learn the business. The problem comes if they are being trained while working as a so-called independent contractor. Being told not only what photos to take, but exactly how to take them under direction might not pass the control test. This is especially true if the helper makes little to no effort to establish and operate an independent business of their own. At some point they should become competent enough to work with little to no direction using equipment they provide themselves. Until then, it’s far too easy to be considered an employee.
Do they actually work for the Brand or are they just a referral network to keep as many client dollars in-house as possible?
Sometimes there’s no real relationship at all. Maybe the so-called Associates have never actually worked with the Brand. They’ve merely been vetted and agree to be an option if the Brand needs a helper. They become a subcontractor with a new agreement if they ever actually work for the Brand. Regardless of whether associate photographers are a benefit mentioned in the marketing effort, it’s always recommended to have this network in place as an internal safety net for the business. The problem with representing them your Associate Photographers is the higher degree of risk for both the Brand and the client when using an untested substitute.
What protections are in place for exclusivity if every associate is actually an independent business of their own with no contractual obligation to any other business?
Until a client commits to a signed contract and any other booking requirements, like retainers or booking fees, they are perfectly free to hire anyone they choose. It is possible they may hire one of your Associates. Under certain preexisting conditions, accepting this client may be a violation of previous contracts. These provisions are usually quite specific and narrow, which is why attorney crafted contracts are vital. It should never be assumed when and how obligations end, much less what those obligations should – or should not – be in the first place.
Is the client still managed by the Brand or are they turned over to the Associate for everything once the Brand has been contracted?
Of all arrangements, this should never happen without a thorough contract in place with the Associate. This can easily be an employee relationship. It also has the potential for great damage to the Brand. An alternative to this arrangement is a referral fee agreement. This is also a good option if Associates really are just an untested referral network, or the Brand is unwilling or unable to properly service the potential client. Offer to pass prospects to other photographers in exchange for a fee should the prospect become a client. Obviously, this agreement should be made in advance, and in writing, before any referral is made. To further protect the Brand, only trusted, vetted photographers should be considered.
Remember that your business is unique
When all is said and done, if you claim to use associate photographers, carefully consider the arrangement and requirements. It is obvious that different businesses have different relationships with their associates. Don’t assume that you’ll operate your business in the same way as others. Always seek the advice of a competent legal professional in your local area.
You may discover you need an employee agreement, independent contractor agreement, referral and commission agreement, or some other document that clearly sets out expectations, compensation, and protections. Those agreements might even be different for each associate you choose to work with. A legal professional can draw up custom documents for your unique business model.
Summing up the problem with associate photographers
While there is no regulated industry standard requirement for what and whom you call an Associate Photographer, and you can offer those services in any way that you, your client, and your associate decide, the details are critically important where reporting, compliance, and protections in your working relationship are concerned.
If you haven’t yet added a legal professional to your business plan, before hiring or offering Associate Photographers is certainly a good time to do it.
The problem with associate photographers is not that you hire them, it’s how you hire them and what written agreements you have in place. Or… have you really even hired them at all?