Can a Photog Have an Exclusive Contract on City or Venue?

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<p> +1 to the camp who votes that contracts are not moral agreements.</p>

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<p>I haven't FULLY set forth my own personal position (non-legalistic) on the issue despite all the underlying discussion. Here goes...</p>

<p>I agree with the statement above, as I already described, but believe breaking contracts can be immoral. It depends on the circumstances. Conversely, it can even be immoral to REQUIRE a contract be followed. There has been much discussion here about a wedding shoot being canceled due to tragedies such as death. Some contracts don't address that scenerio and have hold the date retainer clauses. Is it moral for a photographer to keep the money even when the contract allows? Many here think not. Reversing the role, a client whose fiance or family member died before the wedding might be able to provide legal grounds to avoid honoring the contract. Under David's approach, the grieving devastated client would be a "schmuck" and of poor character if they tried merely because they agreed to the contract and signed it. </p>

<p>I see a photographer breaking a wedding shoot, without good cause, just before a wedding date as unethical because of the grief it may cause the couple and family ect. On the other hand, I see someone canceling a contract and giving a full refund to a suprisingly vicious and nasty bridezilla client well before the date as fairly reasonable even if the contract doesn't address that kind of cancellation and is a breach as a result. I think all this should help demonstrate that contracts are not inherently moral agreements but that the legal and moral duties sometimes overlap.</p>

<p>Howdy!</p>

<p>"Schmuck" is a Yiddish word, with the same meaning as "Putz". Both words refer to a portion of the male anatomy, and are not used by knowledgeable people in polite conversation.</p>

<p>I'm going to give David the benefit of the doubt. I think that if he was aware that he was using an obscenity (albeit a colorful one), he would not have done so.</p>

<p>I'm not a lawyer, and I don't play one on TV. However, I do know what I would do if I were in the OP's situation. I'm not advising anybody to do it, I'm just saying it's what I would do.</p>

<p>Unless there is a specific penalty clause, a judgment on a non-compete would probably be limited to actual damages, meaning the money the other photographer would have made if they had booked the job(s). I would take whatever job I wanted, and if I thought that there was any sort of exposure on a particular job, I'd put the money aside in a savings account. If McGreedy sues and wins (and that's a very big if) I'd turn over the money, but keep the interest.</p>

<p>Later,</p>

<p>Paulsky</p>

<p>Granted, I'm making assumptions such as: Tom is a grown-up and of average intellegence, no one put a gun to his head and demanded he sign the agreement. The OP aknowledges that he read the agreement, specifically noted the non-compete clause and decided on his own that it was of little consequence.</p>

<p>Tom's argument is completely one-sided and we only have his version of the chain of events so there is a lack of full information. Appearrently, the photographer entered into the agreement in good faith and lived up to his end of the bargain. Whether we label someone a schmuck or any other word you'd prefer isn't really relevant......the behavior is not living up to an agreement you made with both eyes open as an adult,.......</p>

<p>Lived up to his end of the bargain, huh? Offered a one-time paid gig to a young photographer in exchange for a couple hundred dollars and a 5 year bar on photographing anywhere near this guy? Sounds like a real saint.</p>

<p>Sometimes there are deals that are so gross, so over-the-top, so unreasonable that we recognize that a reasonable person--if they really understood what was going on--would never take that deal. I think this is a case like that. Sure, Tom is an adult, and you've made your point about it. You're free to call him a shyster, or a crook, or a thief or a liar, or a trucebreaker, or even a cold-hearted murderer, for all I care. </p>

<p>That doesn't change the fact that the experienced photographer in this situation took manipulative advantage of a situation where he had superior bargaining power and he tried (we don't even know if his contract is legal) to rip-off an up and comer. Tom did something stupid, and maybe he should have to pay for it by not being able to compete in the market. The original photographer did something truly heinous, and he should be called out for it.</p>

<p> </p>

<p>David--Chris is not arguing anything, as far as I can tell. He has some questions.</p>

 

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<p>Can a Photog Have an Exclusive Contract on City or Venue?<br>

Now what do I do? Does this contract language hold up in court, or would a judge say that a photographer cannot have an exclusive right to shoot in certain cities or at certain venues?<br>

I know this is not a place for legal advice, but I need enough opinions one way or the other to know if I should fight this with an attorney.</p>

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<p>He wanted opinions, which he got, both for and against fighting the non compete clause, as well as information given by people who had direct or indirect experience with or knowledge of, the issue. Not sure we actually need the other side of the story. We aren't the ones making a judgement--most everyone said to get a lawyer.</p>

<p>Yet the issue is an interesting one and one that we, as photographers may face, either as contractor or subcontractor/independent contractor. So...putting on my moderator hat:</p>

<p><strong>Moderator Note:</strong> I am requesting that we all discuss this issue in a civil way--without insults or assaults on anyone's character, whether directly or through innuendo. As adults, we can agree to disagree. And Paul--I really wish you hadn't told us the root meaning of the *word* :^).</p>

<p>If I may put forth another perspective to the whole contract <i>v</i> word of honor debate

—</p>

 

<p>Most contracts will spell out what constitutes a breach of the contract, and shortly afterwards

specify the penalties for breaching the contract.</p>

 

<p>If that’s the case, there is absolutely no shame in breaching the contract, so long as you

comply with the penalty provisions. That’s exactly why those provisions exist.</p>

 

<blockquote><p>In exchange for $10 from Alice, Bob agrees to wash Alice’s

car by 10:00 tomorrow morning. If the car is not washed by 10:00, Bob agrees to pay $5 to

Alice.</p></blockquote>

 

<p>If Bob decides to sleep in and doesn’t wash Alice’s car, that’s

fine, so long as he coughs up the $5. Alice has no right to be upset — indeed, she’s now $5 richer and didn’t have to work for it. And Bob held up his end of the bargain: he paid Alice $5 for the privilege of not washing her car.</p>

 

<p>If Alice <em>is</em>

upset, it’s because $5 isn’t sufficient compensation for having a dirty car, and

it’s Alice’s own damned fault for not insisting on a suitable penalty in the

contract.</p>

 

<p>And that’s the heart of the matter. You need to evaluate all possibilities, and be sure that

each outcome is satisfactory to you. If having a dirty car means you’ll make a bad

impression on your job interview and lose out on the opportunity to make $100,000 / year, then

perhaps you should have insisted on a bonded $10,000 penalty, or have had a backup person lined up whom

you can count on to do a rush job for $15 (with a suitable non-performance penalty, of course).</p>

 

<p>If Alice insists on a $10,000 bond, Bob may well decide that $5 isn’t enough money to cover the risk and instead charge Alice $500 for that 10:00 guarantee, at which point Alice can either try to negotiate something else with Bob or decide to use somebody else’s services instead.</p>

 

<p>Me? I hate all that 5#!7. I’d much rather work on a handshake and accept the accompanying risk. Life’s too short to get worked up over other people’s inadequacies. But that <em>is</em> how contract law works, and there’s nothing at all even vaguely dishonorable about it.</p>

 

<p>Cheers,</p>

 

<p>b&</p>

<p><em>"David--Chris is not arguing anything....."</em></p>

<p>True, poor choice of a word on my part. When I said: "Chris's argument is completely one-sided and we only have his version of the chain of events so there is a lack of full information......." I meant to say that "Chris's statement concerning the circumstances of the contract is completely one-sided...." I agree, Chris isn't arguing but is looking for information and options. My bad.</p>

<p>James Thurber said, "don't get it right, just get it written".</p>

<p>Howdy!</p>

<p>Oy, vay is mir! Az mir vill schlugen a hunt, gifintmin a schtecken!</p>

<p>Later,</p>

<p>Paulsky</p>

<p>Heya' Paulsky, stay away from my Golden Retriever :-)</p>

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<p>Most contracts will spell out what constitutes a breach of the contract, and shortly afterwards specify the penalties for breaching the contract. If that’s the case, there is absolutely no shame in breaching the contract, so long as you comply with the penalty provisions. That’s exactly why those provisions exist.</p>

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<p>Where there is no stated liquidated damages for a breach, there are default rules that apply that are intended to make the aggrieved party whole. That's exactly why THOSE provisions exist. Moreover, liquidated damages are generally used because the default remedy is difficult to ascertain and/or enforce. (i.e a portion of the wedding fee if held in the event of breach because the amount of $$ losses are often hard to prove since replacement jobs are uncertain and reduced amount of work done). Default remedies stand as tall as stated liquidated remedies, in this scenario, because they both validly exist as part of a contract. When parties make a contract without stated remedies, they still agree on the remedies for breach... the default remedies. Neither has any "moral" weight over the other as a result.</p>

<p>One thing is crystal clear here. Everyone has a different opinion or interpretation of what the contract says, and what remedies might be available to Tom. Thus, it seems self-evident that all this proves is that there needs to be a judge rendering a ruling. Logic has nothing to with this. Laws are written by lawmakers (aka politicians), and since when did the government do things logically? Time to call Judge Judy! Fascinating post BTW. I do hope you will let us know the outcome.</p>

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<p>If that’s the case, there is absolutely no shame in breaching the contract, so long as you comply with the penalty provisions. That’s exactly why those provisions exist.</p>

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<p>If one is complying with the penalty provisions, then one isn't really in breach of the contract, are they? ;-)</p>

<p> </p>

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<p>I would take whatever job I wanted, and if I thought that there was any sort of exposure on a particular job, I'd put the money aside in a savings account. If McGreedy sues and wins (and that's a very big if) I'd turn over the money, but keep the interest.</p>

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<p>I would do that too - except for the bit about putting the money aside. Take whatever work you want. What are the chances of the other person even finding out about it? Even if you are breaching the terms of a contract, that's not illegal.</p>

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<p>If one is complying with the penalty provisions, then one isn't really in breach of the contract, are they? ;-)</p>

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<p>Since all valid contracts have penalty provisions (see three posts up), one can apply this to all contracts. Even where the remedy is inadequate. No one would be in breach when they breach in that case.</p>

<p>Steve--the chances are good that the studio photographer would find out, because Tom already had a discussion with him about his prospect.</p>

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<p>Since all valid contracts have penalty provisions</p>

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<p>John, I'm not a lawyer. I don't think you said you were one either. And there's been only one or two postings here that came from actual lawyers who weren't giving any legal advice.</p>

<p>I get fussy about words sometimes. In a legal context, those are important.</p>

<p>Penalty provisions are explicit paragraphs in the contract that explain what the parties agree to do when they are unable or unwilling to perform other requirements of the contract. (Maybe "penalty provision" probably isn't the right legal term.)</p>

<p>Let's take two scenarios from an example above -</p>

<ul>

<li>Alice agrees to give Bob $10</li>

<li>Bob agrees to wash Alice's car by 10:00am</li>

<li>If Bob has not washed Alice's car by 10:00am, he will pay Alice $5</li>

</ul>

<p><br /> Scenario 1</p>

<ul>

<li>Alice gives Bob the $10. </li>

<li>(Bob gets a better deal from someone else for washing a car by 10:00am and decides it's worth being late on Alice's car.) </li>

<li>At 11:00am, Bob washes Alice's car. Bob gives Alice $5. </li>

<li>All terms of the contract have been satisfied. There is no breach .</li>

</ul>

<p>Scenario 2</p>

<ul>

<li>Same as above. Except Bob doesn't wash Alice's car. </li>

<li>He gives Alice the $5 and says too bad. </li>

<li>In this case, Bob has not complied with all the terms of the contract even though he did pay the $5 specified in what we are calling the penalty provision. </li>

</ul>

<p>In Scenario 2, Bob is still responsible for washing Alice's car. Alice's options are</p>

<ul>

<li>Forget the whole thing.</li>

<li>Sue Bob for what it costs to have it washed somewhere else. </li>

<li>Sue Bob for the $5. </li>

<li>Sue Bob and ask for a court order that compels him to wash the car.</li>

</ul>

<p>(I Am Not A Lawyer . I'd kind of guess the word "sue" is colloquial language and not a real legal term. Lawyers don't "sue" people. They file motions that ask the court to compel defendants to pay damages or otherwise provide restitution.)</p>

<p>The court could find for Alice and order Bob to wash her car, probably by some deadline. And if Bob failed to comply with the court order, he could be subject to penalties for "contempt of court".</p>

<p> </p>

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<p>Since all valid contracts have penalty provisions</p>

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<p>What I was trying to say was - A contract doesn't need penalty provisions (i.e. paragraphs that specified the penalties for non-performance). A court might order penalties or other restitution against one party of a contract for non-performance. But the penalties and costs so ordered by the court are not part of the contract and shouldn't be considered penalty provisions of the contract.</p>

<p>What you were trying to say - An enforceable contract has implicit penalties that can be incurred by either party if a court so orders.</p>

<p>I was just trying to differentiate penalties ordered by a court as being different from penalties specified in the contract. It's semantics but it is important. You can't go to jail for ignoring the penalties in a contract. You might go to jail if you ignore penalties specified by the court.</p>

<p>And I meant my scenario #1 above to be an example of Bob complying with the penalty provisions and not being in breach of the contract. In scenario #2, he was in breach of contract even though he may have paid the penalty ordered by the court.</p>

<p>So, no, one can not apply my tongue-in-cheek "If one is complying with the penalty provisions, then one isn't really in breach of the contract" to all contracts.</p>

 

<p>If you have to go to trial it gets very expensive. You can save yourself a lot of anguish and money by consulting an attorney now. You never know how ready the other party is to fight the matter at hand. He may have other photographers who have signed the same agreement and wants to establish his rights and the validity of the contract. Even if the contract is struck down in court the only winners will be the lawyers. I am not denigrating lawyers because the ones I know do a lot of good for people but their services aren't free. </p>

<p>Why is Bob washing Alice's car? Do men have to do all the work so that a woman can sit around and negotiate contracts? Alice could just as easily be washing Bob's car. Or better yet, she could pick up the sponge and soap and learn how to wash her own car. If she were really money-conscious, she would spend Saturday morning washing the car herself and save the $10, rather than fret over contracts and file litigation against an irresponsible car-washer. Also, does she even have permission to spend the $10? Maybe her husband is planning on washing the car, but doesn't have time to do it until the afternoon. Does that mean Alice should spend the children's lunch money on a professional car wash just because she's not patient enough to let her husband fulfill his promises? Alice has some real priority issues, and something of a superiority complex. She's also far too self-absorbed with this car-washing thing. We all have to make sacrifices to protect our families when times get tough, and maybe she should hold back on the frequency of her car-washing to help alleviate the strains on the family budget. For shame, Alice, for shame.</p>

<p>John - The OP already said he will be consulting with a lawyer this week.</p>

<p>Hal, you have a very dry sense of humour :-)</p>

<p>Tom, I'll wrap up this side conversation as were getting to far from the subject here. It was unwise for me to copy your language of "penalty provision". I assumed you meant liquidated damages in the event of breach and explained that remedies, whether spelled out or not, exist either way. Penalties are not enforceable. I'm sorry you wrote all that stuff for no reason.</p>

<p>Incidentally, As to your scenario 2 remedies, the changing amounts you believe one could be entitled to choose from will take up too much space to respond to. As to the order to compel, that is an equitable remedy that is only available if there is no monetary remedy available. You told us there ARE money remedies, so your order to compel option would not be allowed. If a non-compete is valid and breached however, an equitable remedy (an injunction) may be needed if there is no set liquidated damages because the the amount of money lost may be impossible to measure.</p>

<p>Returning to the thread subject, the matter may not involve a breach at all if the non-compete terms are invalid or limited by law. All the talk of breaching and morals may be about nothing, in this instance, since there might not be anything to breach because the state found the terms unworthy of protection.</p>

<p>Well, I warned you that I wasn't a lawyer. ;-) Sounds like you are though, or at least have a whole lot more practical experience than me. (It wouldn't take a much to do so.)</p>

<p>Once I looked up the term "liquidated damages", I understand much better.</p>

<p> </p>

<p>I didn't bother to read all ninety pages of this, but I do see one important (if somewhat academic) issue. The law in the US recognizes "unsophisticated parties" to an agreement. Meaning that if one party to a contract is so much more sophisticated than the other party, and the contract is clearly taking egregious advantage of the weaker party, the contract can be essentially void. A few arguments above allude to this in a roundabout way. Nobody in their right mind wants to actually take that point to the judge for something as small as a photography job, but it is real.</p>

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<p>Sometimes there are deals that are so gross, so over-the-top, so unreasonable that we recognize that a reasonable person--if they really understood what was going on--would never take that deal.</p>

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<p>Oh, and +1 for John Henneberger. He has this nailed. I am not a lawyer, but I read and negotiate a lot of contracts. It's a nasty, unpleasant business. The weaker party is very often so weak that they are not capable of understanding the actual terms and risks of the contract. It happens all the time.<br>

One more thing strikes me. This clause...</p>

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<p>You agree that you will not attempt to market your products or services to venues in these cities.</p>

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<p>Technically, you did not "market" your services. You made no attempt to advertise or sell. A buyer came to you.</p>