It depends on the state, and in two of the strictest the answer turns on details most second shooter arrangements never put in writing. California exempts still photographers and videographers from its ABC test, but only when ten conditions hold, and one of them is a written contract stating the rate of pay and when you will pay it. Miss any condition and the ABC test applies, and a second shooter photographing weddings for a wedding photography business is very hard to fit through it. Massachusetts has no photographer exemption at all. The IRS uses a third test, about control.
Most explanations of this stop at a general control test. This post reads the two state laws photographers ask about most, plus the IRS publication, and says where each one bites. It does not cover other states, which write their own tests.
Why the contract label does not settle it
Every second shooter contract says the shooter is an independent contractor, including our own template. That sentence records what you intend. It does not decide anything. The IRS says so directly in Publication 15-A for 2026: "The substance of the relationship, not the label, governs the worker's status." The state tests below work the same way. They look at how the work is actually arranged.
California: the photographer exemption and its ten conditions
California's default is the ABC test in Labor Code section 2775, the law most people still call AB5. A person paid for labor or services is an employee unless the hiring business shows all three: the person is free from its control and direction, "the person performs work that is outside the usual course of the hiring entity's business", and the person is customarily engaged in an independent business of the same kind. The middle condition is the problem. A second shooter photographs weddings, and so does a wedding photography studio.
Labor Code section 2778 carves out "professional services", and its list names services "by a still photographer, photojournalist, videographer, or photo editor". When the exemption applies, section 2775 does not, and status is decided instead by Borello, the California Supreme Court's older multi-factor test. As amended with effect from January 1, 2026, the exemption has two sets of conditions, and every one of them has to hold.
The six general conditions in section 2778(a)
- The shooter keeps a business location separate from yours, which may be their home.
- Where their city or county requires a business license or business tax registration, they have it.
- They can set or negotiate their own rates.
- Outside of project completion dates and reasonable business hours, they set their own hours.
- They customarily do the same kind of work for other hiring businesses, or hold themselves out as available to.
- They customarily and regularly exercise discretion and independent judgment in the work.
The four photographer conditions in section 2778(b)(2)(I)
- They work under a written contract that specifies the rate of pay and the obligation to pay by a defined time.
- They are not directly replacing an employee who did the same work at the same volume for you.
- They do not primarily perform the work at your business location.
- They are not restricted from working for more than one hiring business.
Meeting all ten does not make the shooter a contractor. It only takes the question out of the ABC test and into Borello, which still weighs control and the rest of the relationship. What the conditions buy you is a test a genuine freelancer can pass.
Where wedding arrangements usually fail
- No written contract, or one with no payment date. The statute asks for both the rate and "the obligation to pay by a defined time". A message agreeing a day rate and saying you will pay after the wedding has the rate but no defined time.
- An exclusivity clause. A promise not to second shoot for other studios that season is a restriction on working for more than one hiring business, and it fails the photographer condition outright. Asking a shooter not to take your clients' future work is a different thing, and is how our template handles it.
- A shooter who only works for you. The general conditions ask whether they customarily do the same work for others or offer it. Someone who second shoots only for one studio, every weekend, is the weakest case.
- A rate they cannot negotiate. The section asks whether they can "set or negotiate" their own rates. Quoting a day rate is normal; the question is whether the shooter could negotiate it, and a rate presented as take it or leave it is the version that fits the condition worst.
Two narrower points are worth knowing. The exemption covers photo editors, defined in the section as people who perform "retouching, editing, and keywording", so an outsourced editor is held to the same conditions as a shooter. And it does not apply to photographers, editors or videographers "who work on motion pictures", which the section says includes theatrical or commercial productions, broadcast news, television and music videos. Weddings are not on that list. We have not found guidance on whether a wedding film counts, and we do not decide it here.
The penalty for getting it wrong on purpose is set in Labor Code section 226.8: a civil penalty of $5,000 to $15,000 for each willful misclassification, rising to $10,000 to $25,000 each where there is a pattern or practice, in addition to any other penalties or fines the law allows.
Massachusetts: no exemption, and the drywall example
Massachusetts uses an ABC test too, in chapter 149, section 148B, and its second prong reads: "the service is performed outside the usual course of the business of the employer". There is no list of professional services and no exemption for photographers or videographers.
The statute does not define "usual course", so the most useful text is the Attorney General's Advisory 2008/1, which sets out how the office enforces it. It will consider "whether the service the individual is performing is necessary to the business of the employing unit or merely incidental". Its examples make the line concrete. A drywall company that classifies its drywall installer as a contractor violates prong two, because the installer "is performing an essential part of the employer's business". An accounting firm that hires someone to move office furniture does not, because moving furniture is incidental.
Our reading, which the advisory does not state because it never mentions photographers: a second shooter at a wedding photography company is the drywall installer, not the furniture mover. Photographing the wedding is the business.
The advisory also contains the structure that does survive. If a painting company cannot finish a job and hires another painting company as a subcontractor, "provided that all of the individuals performing the painting are employees of company Y, then the Law does not apply." If it hires individuals as independent contractors to finish the job, "this would be a violation of prong two". Brought to weddings: booking another studio whose shooters are its employees is the arrangement the advisory clears, and booking an individual is the one it does not.
One more detail closes an argument photographers often reach for. The same advisory records that before a 2004 amendment, an employer could alternatively show the work was performed "outside of all places of the business of the enterprise." That alternative was removed. In Massachusetts, the fact that the wedding happens at a venue rather than your studio no longer helps. Violations carry the remedies in chapter 149, section 27C, which the statute says include debarment.
The IRS test: control, not location or labels
For federal employment tax the IRS uses the common-law test in Publication 15-A: "anyone who performs services for you is generally your employee if you have the right to control what will be done and how it will be done." It groups the evidence into three categories, "behavioral control, financial control, and the type of relationship of the parties." It also says that what matters is the right to control the details, "even when you give the employee freedom of action."
The publication's list of behavioral instructions reads like a wedding day. Among the things an employee is told are "What tools or equipment to use", "What order or sequence to follow" and "When and where to do the work." Every second shooter is told when and where the wedding is; that one cannot be avoided. The others are choices. A shooter who brings their own cameras and decides how to cover the guests looks like a contractor. A shooter who is handed your bodies, your presets and a minute-by-minute order of shots looks more like staff. The publication adds that "An employee may be trained to perform services in a particular manner. Independent contractors ordinarily use their own methods."
The financial factors point the same way: a significant investment in their own equipment, unreimbursed expenses, the freedom to seek out other work and the chance to make a profit or loss all describe a working freelancer. If you want the IRS to rule on a specific shooter, the publication says to file Form SS-8. Reporting what you pay is a separate question, covered with the other year-end paperwork in the guide to wedding photographer tax deductions.
The booking that fails before the wedding starts
It is Wednesday and your usual second shooter has dropped out of Saturday. You message someone from a local group: are you free Saturday, eight hours, $500, I will pay you after the wedding. They say yes. You send the timeline and a shot list, and they turn up with their own cameras and do good work.
Under the California exemption, that booking already has a problem. The message states a rate, but "after the wedding" is not a defined time to pay, and a text thread is the thinnest possible version of the written contract the section describes. If the exemption fails, the question goes to the ABC test, and the second prong asks you to show that photographing a wedding is outside the usual course of a wedding photography business. Nothing about the person changed. The paperwork did. Two minutes spent sending a short contract with a rate and a "paid within 14 days of delivering the files" line is what keeps the better test available.
What to put in writing before next season
- A written agreement for every shooter, every time, with the rate and a payment deadline in it. Our second shooter contract template has a blank for each in section 3.
- No exclusivity. Do not stop a shooter working for other studios. Protect your clients with a narrow rule about the job itself instead.
- A rate that is genuinely open to negotiation, and a record that it was.
- Their own equipment, and their own approach to coverage. Give the timeline and the must-have shots, not your presets and a minute-by-minute order of work.
- Their business license, where their city or county requires one.
- A shooter with other clients. If someone works only for you, every weekend, talk to an accountant about whether they are really staff.
- In Massachusetts, a conversation with an employment lawyer before the season. The advisory's own example points toward booking businesses that employ their shooters, or putting regular second shooters on payroll.
The rates themselves, and the margin trap that catches most studios when they price a second shooter into a package, are in the guide to working with a second shooter. If you are deciding how to structure the business that does the hiring, LLC vs S corp for wedding photographers covers the tax side.
Pixally gives second shooters a free contractor account that works across every studio they shoot for, and keeps each studio's record of jobs, pay and tax forms for that shooter in one place. It does not decide anyone's classification. What it does is make the paperwork above easy to keep, which is most of what these tests look at.
Common questions
- Is a second shooter an independent contractor or an employee?
- It depends on the state and on how the work is actually done, not on what the contract calls it. The IRS says the substance of the relationship, not the label, governs. California applies its ABC test unless a photographer exemption in Labor Code section 2778 is met, and Massachusetts applies an ABC test with no photographer exemption.
- Does AB5 apply to wedding photographers?
- Yes, with an exemption. California Labor Code section 2778 lists services by a still photographer, photojournalist, videographer or photo editor as professional services, which moves the question from the ABC test to the older Borello test. The exemption applies only if every condition in the section is met, including a written contract that states the rate of pay and when payment is due.
- What happens if a California second shooter does not meet the exemption?
- The ABC test in Labor Code section 2775 applies, and the hiring studio must show that the work is outside the usual course of its business. For a second shooter photographing weddings for a wedding photography studio, that is very hard to show. Willful misclassification carries a civil penalty of $5,000 to $15,000 per violation under section 226.8, or $10,000 to $25,000 for a pattern or practice.
- Can a Massachusetts wedding photographer hire second shooters as contractors?
- Massachusetts law makes it difficult. Chapter 149, section 148B requires the work to be outside the usual course of the hiring business, and the Attorney General's advisory says it will ask whether the work is necessary to the business or merely incidental. Its own example treats hiring individual painters as contractors to finish a painting job as a violation, while subcontracting to a company whose painters are its employees is not.
- Does sending a second shooter a 1099 make them a contractor?
- No. The form reports payment; it does not decide status. The IRS test asks whether the business has the right to control what will be done and how, looking at behavioral control, financial control and the type of relationship. If you want the IRS to decide a specific case, Form SS-8 asks it to.
- Does the California exemption cover photo editors and video editors?
- It covers photo editors, which section 2778 defines as individuals who perform services ancillary to the creation of digital content, such as retouching, editing and keywording, on the same conditions as photographers. It excludes still photographers, photo editors and videographers who work on motion pictures, which the section says includes theatrical or commercial productions, broadcast news, television and music videos.
