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We love it when great firms want to do even better. AXA XL’s Design Professional team recently heard from an architect who asked what more his firm could do to lower its risk when taking and distributing project photos. “They’re already doing some smart things,” Randy Lewis, Vice President, Loss Prevention and Client Education or AXA XL’s Design Professional group, says. “They wanted to see if there was room for improvement.” Like many design firms, this one uses photos in a variety of ways. The firm documents work on the site to supplement construction observation reports and to keep the owner and the firm’s staff informed of progress on the site. They send photos to the general contractor and the client. And they use progress images in marketing mailings, on their website and in promotional materials.

Curating photos

The architect admits that some images are of the “digital tourist” variety that they simply file away. Lewis says that many firms do just that: save all the images into an electronic file/archive and move onto the next project. Usually, that’s that…except if there’s a dispute and those pictures later reveal a problem the photographer hadn’t spotted when snapping the photo. “Photos are discoverable in the event of a lawsuit, whether they’re stored in the cloud, on a firm’s server or on a cellphone,” Lewis says.

Lewis says that, ideally, A/Es should be circumspect about how many pictures they take and why. “Every photo should have a purpose,” Lewis says, “which is usually to support field report narratives. When you’re taking a photo, always consider what’s in the field of view.” He adds that A/Es can and should augment their site reports with photos of deviations from the plans and specifications, as well as areas where significant progress has been made since the previous visit, and overall progress of the construction. All photos should be time and date stamped.

Lewis understands the temptation to take lots of pictures of the project. “The problem is, you have to do something with those pictures,” he says. “Someone needs to look at them—and quickly—even if you think they’ll never again see the light of day.” He recommends that every firm establish a protocol to require a qualified person to examine each and every image. The idea is to decide whether the photo serves a purpose and, if it doesn’t, dispose of the image or put it in a “pending folder” for review at project closeout to determine if it should be kept or deleted. Most photos that aren’t relevant to your site visit should be deleted in strict accordance with your firm’s record retention policy and assuming that there is no claim, or the potential for a claim, on the project.

“As with any information gained on a site visit, if you see a problem, you must address it,” Lewis says. “If you see nonconforming work or a possible unsafe condition or situation, say something to the contractor, document your observations and report them to the owner.” Our architect says that during weekly video conferencing project meetings, the contractor often shows a selection of progress photos. While the design staff doesn't download the images, they may take screen shots to share progress with other in the office. He writes, "Do you have any suggestions on how we should curate these photographs to maintain a balance between keeping a project record and exposing ourselves to unnecessary risks?"

Lewis suggests that these images be shared with others in the office, as intended, saved in a file identified as photos taken by the contractor, and maintained in accordance with the firm’s document retention policy. “Again, if you see a problem, address it immediately,” he says.

When you're taking a photo, always consider what's in the field of view.

Project photos in marketing

 The architect told us that while the firm doesn’t make any special efforts to inform clients that it might use project photos for marketing, it addresses the issue in its contracts:

Marketing Authorization. The Architect shall reserve full rights for use of the project for marketing purposes. This includes, but is not limited to, publication in mass media and trade publications, submissions to awards programs, and inclusion in the Architect’s marketing materials and website. Project location, budgets, and client identity will be withheld at the client’s request.

A clause in the American Institute of Architects (AIA) B101™-2017 Standard Form of Agreement Between Owner and Architect grants similar rights but assumes that the owner may also use the photos for promotional use:¹

The Architect shall have the right to include photographic or artistic representations of the design of the Project among the Architect’s promotional and professional materials. The Architect shall be given reasonable access to the completed Project to make such representations. However, the Architect’s materials shall not include the Owner’s confidential or proprietary information if the Owner has previously advised the Architect in writing of the specific information considered by the Owner to be confidential or proprietary. The Owner shall provide professional credit for the Architect in the Owner’s promotional materials for the Project. This Section 10.7 shall survive the termination of this Agreement unless the Owner terminates this Agreement for cause pursuant to Section 9.4.

Lewis likes both approaches, but questions what happens if, during contract negotiations, the owner objects and the clause is deleted. “Does the firm have a procedure to make sure staff are notified that the publication rights were removed for a specific project,” he says, “and that they shouldn’t use images in any marketing efforts?” It’s always a good idea to check the client contract for confidentiality clauses and related nondisclosure agreements (NDAs). “When in doubt, ask your client if it’s okay to use photos in promotional and marketing materials,” Lewis says.

Careful review is doubly important if an image will be transmitted to another party or used for marketing. “Ask yourself, what am I really looking at?” Lewis says. “How will this image seem to the general public…or a jury?”

Site visit reports

The architect wondered if he should modify the firm’s site visit report language in light of additional site photos they may take.“A field report should reflect the language in your client agreement,” Lewis says. The AIA’s G711–2018 Architect’s Field Report has a succinct, affirmative statement regarding the purpose of the A/E’s visit:

The observations in this report are made to reflect the progress and quality of the Work on the date of this report and are not intended to be exhaustive evaluations of the quality or quantity of the Work.

There is no mention of photographs, but the form does provide for attachments. “Ask your attorney about adding language to the effect that photographs are intended to support but not replace the field report,” Lewis says.

Transmitting images

 The architect says that in addition to regular marketing efforts, the firm periodically sends “a selection of photos to the general contractor, a donor and the user.” He asked us for guidance in drafting language to use when transmitting these images—images other than those required for field report documentation—so that the transmittal doesn’t inadvertently modify the firm’s construction contract administration scope.For this situation, Lewis recommends that the firm work with its attorney to develop a transmittal message that addresses the following concepts:

• The images are being provided as a matter of convenience. Any use or reuse by the recipient or by others will be at the recipient’s sole risk and without liability or legal exposure to the A/E.
• The A/E retains copyright/ownership of the images.
• The images are not part of the A/E’s site reports and do not modify the A/E’s scope of the firm’s construction phase services as set forth in the agreement with the client.

“These are important issues to raise,” Lewis says. “The firm understands that taking and sharing photos can offer benefits, but also present a risk. They’re working to fine-tune their efforts to manage that risk.”

1 The RAIC Canadian Standard Form of Contract for Architectural Services – Document Six, 2018 Edition does not mention photographs.