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

<p>I started working for a photographer in my state to gain experience. The first two I shot for free, and gave them all of the images to use. For the third one, we discussed payment for my work and the photographer sent me a contract. I read over the contract before signing but now one of the statements is coming back to bite me.</p>

<p>Here's the statement - "As a subcontracted photographer/assistant to XYZ photography, you agree that for a period of no shorter than 5 years you will not attempt to compete with the business of XYZ photography by professionally photographing events in the cities of (names 8 local cities, that are not very close to me so I didn't think this would be an issue). You agree that you will not attempt to market your products or services to venues in these cities."</p>

<p>I have recently started getting requests to shoot weddings on my own, and guess what?! One of them is in the city and a specific venue that this photographer shoots at often. 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? </p>

<p>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. Thanks for any help!</p>

<p>Tom,</p>

 

<p>Noncompete clauses are a real problem in many industries. Their validity varies from jurisdiction to

jurisdiction. Further complicating matters is that, for a contract to be valid, proper compensation must

be exchanged; depending on how much they paid you, that clause may be invalid regardless of the

jurisdiction.</p>

 

<p>No matter what, if you wish to consider doing that wedding, you <em>must</em> consult with a

lawyer who is well versed in contract law in the applicable jurisdictions. To fail to do so would be

insane.</p>

 

<p>The end result could be anything from a polite informal letter asking to be released from that clause

to a full-court multimillion dollar legal press, and nobody but a good lawyer can tell you which is in your

best interest.</p>

 

<p>Cheers,</p>

 

<p>b&</p>

<p>You definitely need legal advice specific to your jurisdiction.</p>

<p>But I can tell you something non-compete clauses in the UK. For them to be upheld in law they must adhere to a concept of 'non restraint'. This means they have to be limited to a specific geographical area and specific type of work. The signatory of a non-compete agreement still has to be able to work, and any agreement that was too broad would become invalid.</p>

<p>The nature of what you've described would not be enforceable in the UK as it attempts to encompass too many territories - it would be viewed as a restraint of trade, rather than a non-compete. I suggest you seek legal advice appropriate to your legality to determine if the same principle applies.</p>

<p>Do you still want to shoot for this person? If no then it reads like the contract doesn't apply under those circumstances based on the first sentence:</p>

<p><em><strong>"As a subcontracted photographer/assistant to XYZ photography..."</strong></em></p>

<p>i.e... if you're no longer "subcontracted" or assisting XYZ then there's no agreement. This photographer just doesn't want you stealing bookings and shooting weddings on the side for 5 years <em><strong>while you're working for them</strong></em>. I guess on your 6th year you can compete with this studio in their own back yard and still shoot for them.</p>

<p>Actually, it's a poorly worded clause and quite confusing. But again, the first sentence is you're way out. That's how I read it. (And yes, you should ask an attorney if he/she sees it the same way).</p>

<p>I'm not a lawyer but logic tells me that your contract is not with the venue but with the B&G. Also the photographer you subcontracted to would have to prove that you purposely pursued business in his locales. There would be some burden on his part to prove that you purposely violated the terms of the contract. If you obtained this wedding by word of mouth or other means that didn't violate the contract then you should be fine. His contract says that "You agree that you will not attempt to market your products or services to venues in these cities." . I think the statement "attempt to compete" would mean things like advertising or marketing yourself to local businesses that are in the wedding trade. You may have a customer that is adamant about having you as their photographer, but you have no control over the venue that they choose. It would be silly and unreasonable to tell the couple "sorry can't do your wedding beacause its at Saint MIckeys Church and I am forbidden to take pictures there. Read the contract carefully.</p>

Yes, to clarify, I did not market to the venue or directly advertise in the city. The client found me through a google search and she already had the venue chosen. Also, no I do not wish to shoot for this photog anymore.

<p>I'd think this would be a problem if you photographed a specific family's wedding that had contracted the studio in the past and has, say another daughter who is getting married. A court might award the studio a percentage of your profit. As for venues, I'd imagine something similar might be harder to enforce, but if you go after a venue that refers a significant amount of work to the studio, that'll get the studio rattled enough to at least cost you some money in legal fees.</p>

<p>I've only heard or seen something similar to this once. A photographer was sued by his rep for damages after he left the rep to go to another because he brought clients with him to the new rep. Sadly, I can't remember how it turned out.</p>

<p>Please do us all a favor, for our benefit and our love of drama- please post how your experience plays out. I strongly agree that you should talk to a good lawyer.</p>

<blockquote>

<p>A court might award the studio a percentage of your profit.</p>

</blockquote>

<p>Based on what?</p>

<p>The venue that the couple choose refers most if not all of their inquiries to the photographer that I was subcontracted through which is why this is sticky. But again, I did not market to the venue. The couple contacted me through word of mouth, google, etc and already had this venue chosen. I feel the same way that it would be crazy to have to tell the couple "nope, can't shoot there for 5 years because someone I used to work for shoots there a lot." </p>

<p>Jeff, it could be a problem if you sign a non-compete agreement. Taking the second wedding in a family from a studio could be viewed as direct competitition, an obvious breach of contract. Competition that could only have happened because the employee previously worked for the studio. It's quite possible that the employee only had access to the client (client or vendor list, etc.) through the studio. Certainly every case has it's own circumstances, that's why you get your day in court.<br />I'd imagine that the studio would only take this to court for a percentage of profit, or the whole of it, or maybe just out of spite. Otherwise, why would you take it to court? What would be the studio's benefit?</p>

<p>Also, Tom, it seems to me that if you had this event before you signed the contract, I'd say in all fairness, that you should be fine. But definitely don't take my word for it- talk to a lawyer.</p>

<p>Tom,</p>

 

<p>Just to be as explicitly clear as possible, there is (well-intentioned) advice above that, should you

choose to follow it, has an excellent chance of leading to your financial and professional ruin. In

particular, courts don’t care much for logic or sensibility; only precedent and the particulars of

the contract and laws in question.</p>

 

<p>Get a lawyer. Now.</p>

 

<p>(Or dodge the issue by adhering to the letter as well as the “spirit” of the original contract…and thereby, perhaps, severely limit your chances for professional success.)</p>

 

<p>Cheers,</p>

 

<p>b&</p>

<blockquote>

<p>Also, no I do not wish to shoot for this photog anymore.</p>

</blockquote>

<p>Well, again I read this clause as only being valid while shooting for this photographer. When you sever ties it no longer applies. That being said, if this wedding is already booked or any solicitation of weddings is done while you still have an agreement then you would indeed be in breach of said agreement.</p>

<p>A judge would look at the "spirit" of the clause and interpret it that way I think. No sense in fighting this over one booking. Tender your resignation from this photographer in writing and press on free and clear.</p>

<p>As a 2nd shooter I have one of these agreements with a photographer I shoot for and I perfectly understand where she's coming from. </p>

<p> </p>

<blockquote>

<p>Jeff, it could be a problem if you sign a non-compete agreement.</p>

</blockquote>

<p>Non-competes can be very difficult to enforce. Unless the OP gives their state, it's hard to tell if it has any valuable. FWIW, non-competes are not valid in California.</p>

<p>You need to talk to a lawyer. I will say, though, that it isn't a matter of the photographer or studio having exclusive right to shoot in certain cities or certain venues. Phrasing it that way makes it sound unreasonable, and the clause itself is not unreasonable. Look at it from the studio's point of view without bias of your own.</p>

<p>Depending upon your relationship to the studio owner or manager, I would talk to them about it. There may not be a need to get to the lawyer stage. If the relationship is cordial, there should be no reason to expect a negative result. Do they know you are shooting on your own? Most studios don't expect, and can't demand that you shoot exclusively for them--else you would be an employee, not an independent contractor.</p>

<p>Most non-compete clauses are for when you terminate the relationship and are no longer going to shoot for them. I'm surprised to see one for an active IC relationship. As it stands, the clause makes it sound like you can't promote your services as a professional event photographer within those cities and those venues, but as mentioned above, they cannot demand you work exclusively for them, so a wedding that 'falls into your lap' (IMHO) would be outside the constraints of that clause--but if you can't clear it up by talking to the studio, you really need to talk to a lawyer.</p>

<p>I don't believe RT is correct. I believe this clause reads that you are a subcontractor and also that you agree to noncompetition. Noncompetition clauses are legal and often used, but in this case I believe the wording of this clause is unreasonable. You work for the guy once and must agree not to compete in eight different municipalities for five years. That's way, way disproportionate. There is no industry or circumstance I can think of under which this would be reasonable.</p>

<p>Noncompetition clauses are supposed to keep subs and employees from going solo and taking clients with them. This clause is there to eliminate you from competing entirely.</p>

<p>Don't agree to it.</p>

<blockquote>

<p>Noncompetition clauses are legal</p>

</blockquote>

<p>Not in California and I believe some other states.</p>

 

<p> </p>

<blockquote>

<p>I don't believe RT is correct. I believe this clause reads that you are a subcontractor and also that you agree to noncompetition.</p>

</blockquote>

<p>That's kind of stating the obvious. But how can you be a subcontractor if you no longer contract for this person? (the OP says he will not). Again, the clause reads, "<strong>As</strong> a subcontracted photographer..." I take this to imply, "currently employed by".<br>

 <br>

Given this, the OP can compete all he wants after the 5th year is up and still shoot as a 2nd for this photographer. Now, is this what the originator of the agreement intended? Who knows, but that's what it says.</p>

<p>This is why the OP needs to clarify the clause, which is best done with the studio. Most non compete clauses I've seen that have a time period attached, are for when the contract has ended. The question would be "5 years from when?".</p>

<p>Where non-compete clauses are enforceable, they are usually restricted in time and geographic reach whether it involves photography or not. 5 years will probably not fly. Consult an attorney. </p>

<p>I am looking for a lawyer as we speak. One thing to add, I emailed the photographer letting them know the situation, explaining that they contacted me out of the blue and already had this location chosen (thinking that they would understand and be ok with it) and they referred back to the contract language and said that they "appreciate my consideration" and basically told me that I can't take the job. </p>

<p>Tom,</p>

 

<p>Be sure to let your lawyer know about this conversation. I don’t think there’s anything

for you to be concerned about here…but I’m not a lawyer. The Photo.Net elves are very

good about taking down problematic discussions and would probably do so in short order if your lawyer

thinks it prudent. Regardless, it would probably be prudent on your part to refrain from further contributions to the discussion.</p>

 

<p>And good luck!</p>

 

<p>To everybody else: this is why you want to have a lawyer review any similar document before you

sign it.</p>

 

<p>Cheers,</p>

 

<p>b&</p>

<p><em> "As a subcontracted photographer/assistant to XYZ photography, you agree that for a period of no shorter than 5 years you will not attempt to compete with the business of XYZ photography by professionally photographing events in the cities of .......You agree that you will not attempt to market your products or services to venues in these cities." I have recently started getting requests to shoot weddings on my own, and guess what?! One of them is in the city and a specific venue that this photographer shoots at often.</em><br>

<em></em><br>

So you signed an agreement and gave your word to honor that agreement, now you don't want to keep your word and wonder about the legal ramifications if you decide to violate the agreement. I'm not a lawyer and don't know the potential legal consequences but I do have a sense of the ethical consequences of not honoring your word.....IMO it would make you something of a schmuck.</p>

<p>Not breaking unethical contracts is unethical.</p>

I think if Tom started as novice and the studio spent significant time to train him in wedding photography, then the non-

compete may have a better chance of holding up in court. Even then 5 years is unreasonable. If he was doing wedding

photography already or had adequate training before starting with the Studio, does not get wages (W2) form and is

considered as an independent contractor to the studio, then he he has a good chance successfully ignoring the contract.

 

There are probably other things in the contract that we are not aware of but have bearing on this questions.

 

It is surprising that somebody will find his name as photographer by Google unless he made it known that he is available as

photographer. Proving that Tom did not seek business independent of the Studio may be difficult.

<p>I think Jeff is right in California, see http://boingboing.net/2008/08/08/california-supreme-c-1.html. However, I would still get a legal opinion. You may not be in Cal. and even if you are, I would still get an opinion.</p>