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Do You Refund Deposit For Cancelled Wedding?

Green Photog , Jun 07, 2012; 10:57 a.m.

A bride booked me a year ago, I did their e session and they loved the photos. Now, she says the wedding is cancelled and asked if they can have some of their deposit back. To me, if a deposit is refundable on cancellation, then it's not really a deposit. Also, I turned down at least 5 inquires for her date after I signed her.
The only selfish reason that I'm thinking about giving her deposit back is that I know she's a college student and I book a lot of brides from that college based on word of mouth. So if I give her her money back, it might lead to future bookings.

I also don't want to keep her deposit "on file" because my prices have gone up so if she wants to re-book, I won't honor the old low prices anymore.

Responses


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Craig Shearman , Jun 07, 2012; 11:15 a.m.

No. You have turned down paying work and have no guarantee that another job will come up on that date. If properly described in your contract, the money she paid you is a retainer, not a deposit. A deposit is a down payment on a service and it can be argued that it should be returned if the service was never provided (I'm not a lawyer, so I will defer to those who are). But a retainer is a fee someone pays for you to guarantee to hold the date open. By turning down other jobs on that date, you have already provided the service.

Steve Smith , Jun 07, 2012; 11:18 a.m.

But a retainer is a fee someone pays for you to guarantee to hold the date open. By turning down other jobs on that date, you have already provided the service.

However, if you then accept work for that date and take another retainer, should you not pay back the original retainer because you are then no longer available?
If you keep a retainer you should be available right up to the agreed date.

William Porter , Jun 07, 2012; 11:22 a.m.

"Green" said:

"Now, she says the wedding is cancelled and asked if they can have some of their deposit back. To me, if a deposit is refundable on cancellation, then it's not really a deposit. Also, I turned down at least 5 inquires for her date after I signed her."

Problematic phrase in what you said: "To me...." Sorry, not what matters. What matters is what your contract says. Surely your contract states explicitly that the deposit is non-refundable? If so, then this is what she knows, too, and you can politely refer her to the contract she signed. If you want to you can (briefly) explain that you've turned down several weddings on that date because you were already booked.

I believe that some wedding photographers will refund all or part of the deposit sort of on their own initiative, if they are able to book another wedding on the cancelation date.

My daughter is getting married in December. We just signed the contract for the band. Contract says that payment in full will be required even in the event of cancelation. My wife and I had a private talk in which we asked ourselves, what are the odds of our daughter and her fiancé calling the wedding off? IN our case we decided those odds are close to zero; they're good kids, both of them, and they've been together for several years. So we're not going to lose sleep over this. But we know that, God forbid something does happen, we're going to be on the hook for the band's fee. Maybe we'll have 'em come over to the house and play for us privately.

It's really important to go over the contract — including the painful parts — with the client at the start, when the client really likes you. Make sure they truly understand it. We're not selling used cars here, where all we want to do is take the client's cash, and we can afford to let the lawyers deal with any problems that arise later on.

Will

William Porter , Jun 07, 2012; 11:35 a.m.

Steve Smith writes:

However, if you then accept work for that date and take another retainer, should you not pay back the original retainer because you are then no longer available? If you keep a retainer you should be available right up to the agreed date.

Morally or practically speaking, this seems very reasonable. Actually I don't think I've ever thought about it this way. It's a very fair point.

However, I am not sure it's a good point of law, if that matters. If the contract has been canceled and/or breached (say, bride fails to make remaining payments prior to the wedding date as she agreed to do in the contract), then the photographer is released from his or her duty to perform. You can keep the deposit (a) because, presumably, that was a term of the contract and (b) the deposit refunds you for lost opportunity cost.

What this means is: Assuming the contract did in fact expressly state that the deposit is non-refundable, then you're under no obligation to return the deposit even if you do book another wedding. You might book the next wedding for less. You will lose time having to court another client for a date you thought was already booked, etc.

That's just the legal perspective. Of course, a client who cancels and doesn't get her refund back, but later gets a check from the photographer with a nice note saying that the date has been rebooked — well, that woman is going to say some nice things about the photographer to all her friends. So from a marketing perspective it's not a bad idea. It might even be "the right thing to do," although I think it's also correct to say that not doing this wouldn't exactly be "wrong."

Will

William Porter , Jun 07, 2012; 11:46 a.m.

Sorry to be such a thread hog but I just remembered another little thing, as I was thinking about Steve S's interesting comment.

At least from a legal and probably also from the moral and practical perspectives, it's important to establish firmly that the contract has in fact been canceled. I mean, we've all seen Father of the Bride, right? The wedding gets called off for a couple hours because the couple have a little quarrel. I'm pretty sure the photographer was never aware of this hiccup, but I'm even more sure that there are plenty of folks in this forum — the folks who shoot 40+ weddings a year — who have gotten a call from the client saying the wedding is canceled, only to receive another call a few days later say it's back on. It happens. La donna e mobile, or men have a pathological fear of commitment. Take your pick.

Anyway, if the bride says the wedding is canceled, and therefore she wants to cancel the contract he has with me as photographer, I was would ask her to put it in writing and send it to me. I won't go into the ways in which this could get messy, because it probably won't. I would just hate to be in the position of having booked another wedding, then getting a call from the bride saying the wedding's back on. If it's canceled, it needs to be clearly canceled.

Will

Nadine Ohara - SF Bay Area/CA , Jun 07, 2012; 12:48 p.m.

1. What did your contract actually say? That is what you need to go by, not your personal interpretation.

2. Most wedding photographers call the deposit a retainer, to avoid messy interpretations of work done or not done. What does your contract call it?

3. Most wedding photographers also state in their contract that the retainer is refundable should the photographer re-book the date. What does yours say?

4. Going against your contract to refund the retainer is going to get you into a sticky situation. If you do so, hoping not to make your client mad, you also signal to all those other prospective college brides, that you can be pushed. Hence your contract wording about retainers being non-refundable, and perhaps anything else in your contract, will become meaningless.

5. Some wedding photographers allow the retainer amount to be used against other services, such as portraits. I personally would allow such a thing, with time limits, and I also would allow her to keep the retainer on file against a future wedding contract, but 'at the prevailing rates'. So her retainer total may be worth less should she use it. You do not have to offer the same contract she had. You should also put a time cap on it, but be generous.

A. Davis , Jun 07, 2012; 01:00 p.m.

Nadine's advice is right on point. I tell couples that my retainer is non-refundable, but I am also clear that if something truly catastrophic happens (one of them ends up the hospital for example), I will return it. However, if it is just a case of the engagement was broken off, I would allow it be used against other services or maybe for a future wedding, but I wouldn't return it.

John H. , Jun 07, 2012; 02:30 p.m.

Nadine provided very good suggestions but the one about what to "call" a pre-payment a deposit or retainer to avoid misinterpretation didn't include the important part.

Its not enough to merely label a prepayment as a retainer. It actually has to work like one. The common situation for wedding contracts is to have a non-refundable pre-payment made to ensure the photographer's availability to perform their services for a particular time and date. Ideally, such a clause is also the liquidated damages (The amount the photographer gets to keep) in case the client doesn't perform their duties. Different U.S. states have different laws as to the amount that can be kept and different conditions that may apply. Many allow a reasonable amount based on the knowable conditions at the time of contracting. Others also look at the date of breach or repudiation. Some even consider whether other work for the date or other mitigation was sought after the breach. This is an example of why its important to have an attorney review contracts and avoid using authoritative sounding versions found on the internet and other places. A contract is subject to local state requirements and should be set up to be consistent with them.

On the practical issue of non enforcing terms and others finding out, I agree expectation management issues could arise. However, countervailing business concerns such as good will count as well. Refund terms are not necessarily meant to enforce in every occasion but always have an element of protection so the terms CAN be enforced when needed. I have no idea what this contract has but permitting a refund if suitable replacement is secured may be a good idea even when not required. The standard applied often is whether reasonable efforts were made to secure new work. Sitting around waiting for prospects is not a suggested approach.

Nadine Ohara - SF Bay Area/CA , Jun 07, 2012; 03:06 p.m.

Thanks for the clarification John.

What I wanted to add, and perhaps you can comment, John, is the necessity of having the cancellation in writing. I've only had one cancellation, but I have a cancellation form that I use.

I also consider the severity of the reason for cancellation, as A. Davis points out. If the reason was catastrophic, of course, I would refund the retainer. No need to add to a client's burden in such situations. The time between the cancellation and the event is also a factor to consider.

However, and especially these days, I hear of clients cancelling a photography contract 'because they now want to save the money', or 'found a better photographer (in cost or style)'. Many times, they will make up a story just to get you to return the retainer.

So today, here is the sequence of things to do when someone notifies you that they want to cancel.

1. Verify the cancellation by calling the venue and/or other vendors. If the venue is not also notified of that cancellation, something might be up.

2. Send the client a cancellation form for them to sign. I personally do it through registered mail. Repeat the contract language re refunds of the retainer. If you allow the retainer to be used against other services, make that offer with clear time limits stated. To be absolutely sure, if one has not gotten a signed cancellation form before the event, I have heard of photographers showing up at the venue on the day, ready to photograph--just in case.

3. Make reasonable efforts to re-book the date, if there is reasonable time to re-book. Obviously, if the client cancels a day before the event, you don't have any time to do anything along these lines. I am always unclear about the legality of e-mail signatures on forms, so if it were me, I'd be showing up, ready to shoot--just in case.


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