Best Business Practices for Photographers [178]
First, though, it is important to understand the different types of breaches. There are a few types of contractual breaches:
Fundamental breach. This breach is so significant that not only can the contract be terminated, but the wronged party may bring a suit against the other party or parties. An example of this might be a circumstance in which models are contracted for and flown to a distant tropical island for a fashion catalog shoot, and upon their arrival they demand additional consideration (such as pay, workload lightening, and so on) or they will refuse to participate, bringing the entire shoot to a halt and thus delaying the catalog's production.
Anticipatory breach. This breach may be fundamental, material, or minor and must indicate with certainty that a party to the contract shall not perform to the contract's specifications when called upon. An example of this might be a publication that, after they sign your contract and you perform the photographic services, states that they won't pay you unless you sign their contract. Although the statement of nonpayment for services already rendered is anticipatory, there are some complications in that additional— likely unsatisfactory—terms are being demanded by the client. However, this is an anticipatory breach.
Minor breach. This breach is only a partial breach, such as a payment in 45 days instead of the contractually obligated 30. Although this may be deemed a material breach in that an interest penalty might have been applied to the $5,000 invoice, in this circumstance only the wronged party's actual damages can be collected. In this instance, the actual damages on an 18-percent APR interest penalty would amount to approximately $37, and thus this would be the maximum damages that could be collected.
Material breach. This breach is more substantial. If, for example, you are contracted to shoot an assignment with Nikon cameras because of a relationship your client has with Nikon, and you instead use Canon, your client can either compel you to use Nikon or collect damages that could include all the costs to reproduce the shoot, plus any expenses involved in rush charges to get the project back on track to accommodate for the delays your breach caused.
Why You Might Be Better Off in Small Claims or Civil Court
For many photographers, bringing their case before a civil court can be less expensive and shorter in time than a federal case. The details of how you handle your contracts will provide you with remedies as the aggrieved party.
Should your contract stipulate that unauthorized uses of your photographs are copyright infringements, then federal court is the place you'll end up, and if you try to bring a suit in civil court, the defendant's attorney will file to this effect, insisting that the case be tried in federal court. They would, of course be doing this to force you to give up the claim because of the timeline and expense of federal court over civil court.
However, if you allow for the possibility of adjudication in civil courts, for these same uses, in certain circumstances, you may be at an advantage. In cases that fall below a state-specified threshold, your case might wind up in small claims court. Ceilings for claims range from $2,500 to $10,000 depending upon the state, but there are benefits to small claims. For example, you are not required to have an attorney represent you, and in some states you are precluded from doing so. The exception to this in almost all circumstances is when you are suing a corporation. In this case, it is not the officers of the company who appear, but rather their corporate counsel or designated attorney.
This can work out to your advantage. If you are suing for