7 December 2017

Professional indemnity is an insurance product designed to protect you and your photography business. But what is professional indemnity insurance, and what does it really cover?

What is professional indemnity?

In very simple terms, professional indemnity covers you for mistakes or an allegation you’ve made a mistake.  

Professional indemnity provides:

• Compensation to your client (or a third-party) in circumstances where you are liable due to professional negligence
• Defence costs, to defend you against un-justified allegations of negligence

A basic professional indemnity product will only protect you against allegations of negligence. There are, however, professional indemnity policies that cover a lot more, such as the policy available to full photographer members of the AOP. Matters such as breach of intellectual property including copyright infringement, a breach of confidentiality and a breach of confidence are often covered under more comprehensive professional indemnity policies.  

Can only clients make a valid claim under professional indemnity insurance?

Whilst traditionally professional indemnity would only cover claims from clients, photographers and other creative professionals can be at risk from claims from third-parties, that are not engaged as clients. For example, a fellow professional photographer could bring a claim against you for breach of copyright, or even a model can allege you hadn’t obtained written clearance. A comprehensive professional indemnity policy will cover claims from any third-party, not just unhappy clients.

I’ve never had a claim before, do I really need professional indemnity as a professional photographer?

Specialist photographic insurance brokers handle claims relating to damaged or stolen equipment each and every week. Professional indemnity claims are certainly less frequent, but often very stressful for the photographer, and they can be extremely expensive. It’s easy to quantify the value of the claim for a damaged camera. Quantifying the loss for a breach of copyright, for example, can be far more difficult.

In the unlikely event something does go wrong, there’s nothing worse than attempting to handle this matter yourself. If you are insured with a specialist media insurer, their claims handlers and solicitors are experts in these situations, and may be able make the problem disappear without too much fuss. More time for you to do what you love ... photography.

So, what can go wrong?

A common question, and one that’s difficult to answer. We handle a number of professional indemnity claims throughout the year, some can be settled quickly, others can involve months of negotiation and mediation.  As the title of the product suggests, it protects the photographer’s professional reputation. As such, it is very difficult to share the specific details of the claims we have handled. We have therefore put together some theoretical claims examples, some of which are similar to claims we have handled.  

Example number 1 – The traditional negligence claim

A photographer was commissioned to undertake a university graduation shoot. A high-pressure day, with very quick turnaround between each client. At the end of the day, when uploading the images, it was discovered that one of the memory cards was corrupted. A large proportion of the afternoon’s shots was irrecoverable. In this instance, the insurer was concerned that a formal allegation of negligence would be made. The mitigation cover within the insurance, allowed the insurer and photographer to pro-actively resolve the problem. The insurer paid for necessary costs to reshoot a number of the students and their families at a later date at two separate locations.

Example 2 – Travel photographer fails to obtain model release

Commissioned to provide travel photography for a feature in a leading national newspaper, the photographer spent 4 weeks travelling across Italy shooting many popular tourist attractions.

The images were supplied to the editorial team at the newspaper. Unaware of any potential problem, the editorial team selected a specific image, and cropped the image significantly upon publication. The cropping of the image, resulted in a British tourist, previously in the background of the image, being the focal point of the image that was printed on the front page of the publication.

The tourist was a wealthy businessman and very unhappy when he discovered his photograph on the front of the feature, and asked his lawyers to pursue a claim against the newspaper. In this case, although in our eyes, the editorial team at the newspaper were very much at fault, their legal team pursued the photographer that supplied the image for indemnification. The insurers successfully defended the photographer, as well as maintaining the relationship with the newspaper to ensure the photographer did not lose future work.

Example number 3 – Section 52 of the Copyright, Designs and Patents Act

We thought this example serves a reminder of the risk faced by interiors photographers, as a result of the recent change in legislation, which brought certain existing 3-D works back under copyright protection. This places the onus on the photographer to ensure they obtain clearance on any 3-D copyright-protected items, such as designer furniture. Should a photographer be unaware that a certain piece of furniture is under copyright protection, the photographer exposes themselves to a legal claim from the designer or rights-holder.

What cover is included within the membership of the Association of Photographers?

As a full photographer member of the AOP [UK/EU only], the membership automatically includes £250,000 of the professional indemnity insurance arranged by Williamson Carson Insurance Brokers. Williamson Carson Insurance Brokers arrange the insurance with Hiscox Insurance Company, on a specialist media insurance policy tailored for photographers and creative professionals. The professional indemnity insurance with the AOP, provides cover over and above a standard professional indemnity policy. The insurance automatically covers matters specific to photographic professionals, such as intellectual property including copyright infringement, breach of licence, breach of confidentiality and breach of confidence as well as an unintentional breach of a written contract (note: all the more reason to get things in writing).

For any questions relating to the insurance or for the full terms and conditions, please contact the AOP office or Williamson Carson Insurance Brokers directly on 0208 658 5038. Williamson Carson can also provide Public Liability and Equipment insurance on its specialist photographic insurance scheme for AOP members.

Please note: This article and the examples therein are for general information purposes only, and does not claim to be professional advice and shall not be relied upon as such. The claims scenarios are examples of how the policy may respond.

Thanks to Tom Carson of Williamson Carson