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

Discussion in 'Wedding and Event' started by tom_collins|3, Mar 7, 2010.

  1. 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.
    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."
    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?
    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!
     
  2. Tom,
    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.
    No matter what, if you wish to consider doing that wedding, you must consult with a lawyer who is well versed in contract law in the applicable jurisdictions. To fail to do so would be insane.
    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.
    Cheers,
    b&
     
  3. You definitely need legal advice specific to your jurisdiction.
    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.
    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.
     
  4. 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:
    "As a subcontracted photographer/assistant to XYZ photography..."
    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 while you're working for them. I guess on your 6th year you can compete with this studio in their own back yard and still shoot for them.
    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).
     
  5. 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.
     
  6. 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.
     
  7. 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.
    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.
    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.
     
  8. Spearhead

    Spearhead Moderator

    A court might award the studio a percentage of your profit.​
    Based on what?
     
  9. 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."
     
  10. 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.
    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?
    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.
     
  11. Tom,
    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.
    Get a lawyer. Now.
    (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.)
    Cheers,
    b&
     
  12. Also, no I do not wish to shoot for this photog anymore.​
    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.
    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.
    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.
     
  13. Spearhead

    Spearhead Moderator

    Jeff, it could be a problem if you sign a non-compete agreement.​
    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.
     
  14. 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.
    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.
    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.
     
  15. 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.
    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.
    Don't agree to it.
     
  16. Spearhead

    Spearhead Moderator

    Noncompetition clauses are legal​
    Not in California and I believe some other states.
     
  17. I don't believe RT is correct. I believe this clause reads that you are a subcontractor and also that you agree to noncompetition.​
    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, "As a subcontracted photographer..." I take this to imply, "currently employed by".

    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.
     
  18. 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?".
     
  19. 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.
     
  20. 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.
     
  21. Tom,
    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.
    And good luck!
    To everybody else: this is why you want to have a lawyer review any similar document before you sign it.
    Cheers,
    b&
     
  22. "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.

    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.
     
  23. Not breaking unethical contracts is unethical.
     
  24. 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.
     
  25. 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.
     
  26. Not breaking unethical contracts is unethical.​
    Right on. There are alot of people out there trying to bind others in the most constrictive way possible for their own gain. Heck, my company does this all the time. The first time around, you try to get everything. If the client doesn't negotiate, then you get everything you ever wanted from them. They are fully expected to negotiate on some of the extremely restrictive terms of the contract. Do you remember the line from Sam Beauregarde in Willy Wonka? "Don't talk to me about contracts, Wonka, I use them myself. They're strictly for suckers."
    If you find yourself in an illegal contract, you're not bound by it, as it won't be enforceable in court. A competent lawyer will be able to clear this up alot faster than a bunch of photographers can.
     
  27. you will not attempt to compete with the business of XYZ photography by professionally photographing events in the cities of .......
    I think this makes the issue of pursuit a moot point.
     
  28. 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.​
    Well put, David! How can the OP expect clients to honor their contracts/agreements if he doesn't honor his?
     
  29. Spearhead

    Spearhead Moderator

    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​
    This is not true. See the Community Guidelines :
    Photo.net's policy is not to remove any user contributed material unless it violates the site's Terms of Use​
    We've gotten a bit tighter on enforcing this lately.
     
  30. My reading of this is that the OP read and signed the original contract hastily without considering the ramifications. Perhaps he was rushed. Perhaps not. But he clearly didn't consider it carefully.
    The studio that gave him that contract probably didn't have a lawyer write it. As pointed out by a couple of posters, the language is vague about when the five year period begins and what the five year period applies to. In some states, an unenforceable clause can invalidate the entire contract. That's why you sometimes see an explicit "severability clause " that says invalidation of any part of the contract will not affect the rest of the contract.
    A proper non-compete clause would have simply said something like "For a period of five years from the signing of this contract , you agree not to compete etc..." or perhaps "For a period of five years from the written termination of this contract."
    How about not competing for a five year period beginning on your 65th birthday?
    Does the contract you signed say anything about damages? I'd consider just going ahead and shooting the wedding. (I'M NOT A LAWYER AND THAT COULD BE REALLY BAD ADVICE IF IT OPENS YOU TO A BIG AWARD. ) But is it really going to be worth the studio's bother to chase after you if you don't bring it to their attention.
    The first two I shot for free, and gave them all of the images to use.​
    Did you give the all the images or did you give them copyright to the images? If there's no written agreement and no money exchanged, then it's likely you still have copyright in images that they've used illegally.
    You might want to register those images to have a little more leverage using them.
    Well put, David! How can the OP expect clients to honor their contracts/agreements if he doesn't honor his?​
    By giving his clients fair contracts that don't try to take advantage of them. By treating them fairly in situations that warrant it even if the contract lets him do otherwise. Perhaps even by having a lawyer review the contract so this sort of ambiguity doesn't come up.
    If the agreement is invalid, there's no ethical issue about abiding by the terms.
     
  31. If you live in a "right to work" state, this non-compete clause is not enforceable. If he wants to take you to court over it, all he will be doing is spending a lot of money on Loy-iz and he will still most likely not be successful.
    I would still consult with an attorney but I would not lose a lot of sleep over it if you live in the following states:
    00VwmW-227135584.jpg
     
  32. So you signed an agreement and gave your word to honor that agreement, now you don't want to keep your word... ...IMO it would make you something of a schmuck.​
    Contracts are not blood oaths of honor and loyalty. They exist to foster economic activity. Indeed they are designed to provide a remedy that would not otherwise exist for an aggrieved party to an agreement and an economic benchmark for a party that decides it is more economical to breach the contract.
    In this instance, the terms at issue might even be illegal. If that's deemed to be the case, there is no agreement that can be broken. It is void as though it never existed. Calling someone a schmuck if they decide not to be bound by illegal contracts, if that's the case, is unjustified. If we are going to hurl moral claims as to business contracts, perhaps it might be saved for those who are actually determined to be in the wrong.
     
  33. How can the OP expect clients to honor their contracts/agreements if he doesn't honor his?​
    By having contract terms that actually comply with the law.
     
  34. "Contracts are not blood oaths of honor....."

    I've never claimed that honor and personal integrity had anything to do with what is legal or illegal. If you're a man of your word a handshake is just as good as a contract and it doesn't matter if it's written in ink or in blood. There's always consequences to choices. In some markets, a photographer's reputation with his peers is worth alot more than shooting a wedding and peer to peer referrals can be a significant source of business.
     
  35. Contracts are not blood oaths of honor and loyalty.
    Wow. That statement is so wrong I don't even know how to respond. Sir, you have quite a bit to learn about the business of photography, and perhaps, business in general. You go on ahead and choose not to honor contracts you have signed and let me know how that works out for ya, ok?
     
  36. "Contracts are not blood oaths of honor and loyalty."
    There was a time in which a man would sooner die than go back on his word. And, much of that was sealed with a handshake and no contract needed.
    I believe the question is, "Did you sign your name to a statement that you would not do what you now want to do?" Why make the lawyers richer? Stick to your word. If you regret what you have agreed upon, learn from it and become wiser.
    DS Meador
     
  37. "In some markets, a photographer's reputation with his peers is worth alot more than shooting a wedding and peer to peer referrals can be a significant source of business."
    David, if he follows your high-horsed advice, he won't be able to shoot those referred events.
     
  38. There was a time in which a man would sooner die than go back on his word.​
    Those men are dead, with good reason.
     
  39. Wow. That statement is so wrong I don't even know how to respond.​
    I notice people often confuse contracts with promises. They're not the same thing.
    A promise is unbreakable, if you understand what the term actually means in a philosophical and linguistic sense. A contract is merely a legal instrument, open to scrutiny, interpretation and review and considered negotiable from the moment it's drafted.
    It's perfectly legitimate to sign a contract with the intention of breaking it. If this were not the case, there would be no concept of breach of contract or remedy. And it's perfectly legitimate to sign a contract in the knowledge that it is flawed or otherwise not enforceable; in fact, it's good practice to do so, since it affords the greatest degree of leverage. That's why the world has corporate lawyers, whose purpose is to detect opportunities for breaking contracts legally.
    Understanding contracts - including how to break them - is one of the most basic principles of business. Or at least, big business.
     
  40. When buying a business from another; some of us place a non compete clause with a time in years plus a radius in miles too. Then you spread the payments to the chap over that say exact time period. Thus if he starts up across the street; you halt the payments to him. Thus he has some incentive not to break the contact; it the non compete fee one purposely has in the buyout of his business. I have used this in California and other states too.
     
  41. Thanks, Neil and John. You sorted it out!
     
  42. I agree that one's word is not the same as signing a contract, unfortunately, because life would be simpler if everyone honored their words. It's too bad the studio photographer took the position that he did. If it were me, I'd give the benefit of the doubt and tell Tom to go for it.
    On the other hand, Tom has options, and one of them is to avoid any problems by not taking the job. It isn't as if his whole career rests on one job.
    But I would ask that lawyer first. I looked at that article linked to by Barry, and it seems to be talking about noncompete clauses for corporations or for employer/employee relationships. Since Tom is a subcontractor or independent contractor, I would wonder if the court's ruling would apply to him (if he were in California). Same for Kelly's description of non compete clauses in reference to a sale of a business. These are different from corporate or employer/employee situations.
     
  43. On the other hand, Tom has options, and one of them is to avoid any problems by not taking the job. It isn't as if his whole career rests on one job.​
    But avoiding any problems by not taking jobs for five years would affect a whole career.
    Some state bar associations have referral programs where an initial consultation is given at a discount. Since the OP just needs a simple answer that's a good place to start.
    Wait, will a lawyer ever give a simple answer? :) Maybe not, but it's still a good place to start.
     
  44. From reading this article about the State of Georgia it is apparent that the issue is too complex for a non lawyer to make a judgement about. http://www.consumer-sos.com/Georgia/Work/non-competes.htm It is a right to work state but it seems that non compete clauses are perfectly legal there. Tom's situation will require someone with experience in this area of the law IMO. Try googling "non compete clauses in (your state).
     
  45. Tom--The OP said the cities and venues in question are not close to him, so the likelihood of every job coming his way, being in those cities, for 5 years, is small, right? This is why he signed the contract. Anyway, I still think he needs to clarify by talking to a lawyer.
     
  46. "It's perfectly legitimate to sign a contract with the intention of breaking it....." -Neil
    Perhaps in your world it is, not mine.
     
  47. Oops. I missed that part about the cities not being close to him. Calling them 8 local cities threw me off. So they are local cities but they aren't close to him?
    I agree - he should talk to a lawyer. In particular, someone with the appropriate specialty. The local bar association can probably give him a good referal.
     
  48. David, that's probably exactly right. But I don't view that as a bad thing.
    FWIW, before I turned photographer I spent the best part of two decades in corporate consulting and corporate law. I recognise a contract as an instrument of business. It's a highly mutable entity. Unlike my word, which is not mutable at all.
     
  49. jtk

    jtk

    Whether or not noncompetes are "valid" in any particular state (eg CA), they can be costly (including in CA). If you're in CA and you sign a non-compete with a non-CA company's home office (eg MN), you can be harassed expensively by the company's lawyer in that other state. That doesn't necessarily mean you'll lose a law suit, but it does mean you'll probably want to pay for a lawyer and lose a lot of sleep.
    A rule: Do not sign non-competes unless you're being paid HEAVILY in exchange.
     
  50. Tom:
    Is this a fair summary? You were presented with a contract that contained restrictions on where you could work. Since the restriction was on places you thought you wouldn't work, you figured it wasn't any big deal, so you signed. Now, you've realized that you can make money by breaking the contract, so you want out.
    I'm not a lawyer. From what I've read, for a non-compete to be valid in right to work states, it must be specific in terms of what it restricts (photographing events), when it is (5 years), and geographically specific. You can't get much more specific than naming 8 cities that aren't close to you.
    If I were me, I'd choose to spend my energy on finding ways to grow my business outside those 8 cities for the next 5 years. Even if you can legally break the contract, it goes against the spirit of the agreement. You worked for this photographer to gain experience. Now that you have experience, you want to bite the proverbial hand that fed you. I wouldn't do that. Maybe you can find a legal way to do it, but it seems shady and wrong to me.
    Eric
     
  51. Sir, you have quite a bit to learn about the business of photography​
    My discussion of the nature contract law and economics is not relevant in determining whether I am knowledgable about other things such as business practices. Speaking of such knowledge, different groups within the business react differently to contract breaches. Larger business tend to react to a breach of contract based on economic analysis. While they may not continue doing business with a party that did not follow through with contract terms, its not usually treated a personal affront. Nor is it such. At the other end of the spectrum is the wedding client who is extremely caught up in the emotional aspect of the wedding arrangements. Because of this, its one of the only areas of contract law that allows non-economic damages to be recovered for breaches of contract (in a very limited number of jurisdictions/funerals are another area like this). In these isolated instances, the contract IS treated more than just an economic vehicle unlike contracts in general which is what you speak of. Its a special situation where economic analysis is insufficient. If this were the case with contracts in general, we would likely see legislation reflecting that but we don't.
    You go on ahead and choose not to honor contracts you have signed and let me know how that works out for ya, ok?​
    In this instance, we have two business people involving contract terms that might be illegal. They may not do business with each other again even if the contract is, indeed, void. Its possible that some other business could be lost but, economically, the OP still seems better served if he does not have to submit to the terms. If one breached the contracts of wedding clients, then, of course, word would get around and the photographer can expect to lose more than is gained. Its ironic that this violation of 'blood oath of honor and loyalty' is so wrong while the commentary in support, shown above, was based on economics.
    I've never claimed that honor and personal integrity had anything to do with what is legal or illegal.​
    You called someone asking about the enforceability of a contract a schmuck and attacked their "honor"". If we adopt your criteria, people will be schmucks for asking if they have to honor a contract made when they were a child, under duress, based on illegal discrimination, requiring illegal discrimination, under unfair trade practices, involving illegal activities and violating all sorts of things involving other public policies. Not the best position to have while denouncing the morals of others.
    So get a grip. I have nor promoted breaching of contracts and recognize the social aspects that are involved to them. They are just not the sacred oath made to the death that some people viscerally attach to them. Especially if they are illegal.
     
  52. From what I've read, for a non-compete to be valid in right to work states, it must be specific in terms of what it restricts (photographing events), when it is (5 years), and geographically specific. You can't get much more specific than naming 8 cities that aren't close to you.​
    I don't know what you read but proximity is the holy grail of non-compete restrictions (along with duration). Distant places are excluded because they don't usually amount to actual competition. There may be some exception in some circumstance but distance almost always matters. In wedding photography, usually a local sphere of influence, there would seem no special reason to have an exception.
     
  53. "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."
    Get a lawyer; the whole things sounds abit odd.

    Imagine working for somebody for free for 2 jobs and on the third job you agree on something that ties ones livelyhood down; that one cannot work in certain areas.

    My gut feel is tell them to pack sand; like it is a bunch of strong arming bs written by a whuss who wants a monopoly without paying his dues.

    A carpenter; plumber, roofer, welder would not get into the free work gambit or lock himself out of certain cities even if drunk.

    Get a lawyer in your area to see if there is any legality to this absurdity.
     
  54. As a lawyer, I'll offer a few observations, which are not specific legal advice, but just general suggestions:
    (1) Any advice from anyone who has not (a) carefully studied the entire contract and (b) been issue a law license in the jurisdiction(s) at issue, is not worth too much.
    (2) The degree to which non-compete agreements are legally enforceable varies considerably from jurisdiction to jurisdiction.
    (3) Whether a US state is a "right to work" state has little or nothing to do with whether a non-compete agreement is enforceable; "right to work", as that term is usually used in the US, has to do with labor unions, and whether an employee can be forced to join one.
    (4) Whether you have a remote, theoretical problem or an acute one is hard to tell. You could of course, go talk to this photographer, tell him your situation, and see what he says. You may find that some reasonable understanding can be reached, well short of spending money on lawyers.
     
  55. Dave, I'm sure everyone appreciates a lawyer's point of view, which we all realize is not meant as specific advice for Chris. However, everyone actually has been very careful not to offer any advice, instead advising Chris to see a lawyer.
    I appreciate the info on non-compete, right to work states. Wondered about that. Seems like everything brought up along these lines has been in reference to corporations and employer/employee situations, not sub contractors or independent contractors.
    Tom has already talked to the studio photographer, who has told him he can't take the job.
     
  56. I'm not a lawyer. But my two cents:
    Are you still a subcontracted photographer? If not, the contract doesn't seem to apply. Perhaps if it said "As a former subcontracted photographer..." The whole contract operates under the assumption that you're currently a subcontracted photographer. If you're not, then the contract, again, doesn't apply.
    Also, what's defining "professionally?" If you don't make the bulk of your income from photography, then it could be argued that you're not professionally shooting.
    Also, does XYZ photographer shoot weddings? If not, than you're not competing.
     
  57. I'm not a lawyer, but think about this. the phrase"as a subcontracted photographer" i agree to not do something, probably won't get you off the hook as has been proposed. What if, for example you said "as a thirty-five year old man I agree not to XYZ for a period of 5 years. When you turn 36 are you off the hook? Really all this discussion about common sense and ethics is an interesting exercise, but in my experience, common sense and ethics have very little to do w/ what is legal. Get a lawyer.
     
  58. Tom,
    I went through something along these lines a few years ago here in CA and here is what I learned.
    An important question has to be answered first. Were you an Employee or an Independent Contractor?
    As an IC, you are by definition INDEPENDENT. You're an Independent business operator engaged in the business of offering your photographic expertise to him and OTHERS. Just by virtue of having worked for him, he can NOT dictate where you can operate your business because you were evidently serving those areas when he hired you. The agreement you signed would not hold up for this reason. UNLESS, you were deemed to NOT REALLY being an INDEPENDENT CONTRACTOR in which case he should have been taking out witholding, insurance, etc. Now another issue is where he is based. If he's based in LA, but shoots in San Francisco on occasion, he can't claim SF as his own.
    As an EMPLOYEE, the non-compete has a little more bite, but again, he cannot really prevent you from engaging in your chosen profession UNLESS there is something super special or unique about the business or rather HIS business. An example of this would be if you were advertising that you use the XYZ method which is his proprietary method. In these cases, courts have ruled that 1-2 years is reasonable. However, in NO CASE can you take his customer list and begin calling on his clients because this is considered theft of business property. I'm not talking accidental here. I'm talking about Hey Ive got the guys client list, so I'll go solicit them and undercut the old guy. This you can never do non-compete or not. Not saying you have or would do this. Just pointing it out as some people think this is ok.
    Now, the real question is not whether his contract will hold up in court. I don't think it would. But, a better question is: Will you? Are you willing to defend a lawsuit? Does he have the resources to bring one and would he? It may not be worth the trouble. Maybe a better solution would be to sub-contract it out to him. That way you make something off the deal while you shoot something else in you own area.
    Mel
     
  59. The whole contract operates under the assumption that you're currently a subcontracted photographer. If you're not, then the contract, again, doesn't apply.​
    Its probably better to say the restrictions are unenforceable rather than inapplicable. The phrase "As a subcontracted photographer/assistant to XYZ photography, you agree" defines a the person's role with the hiring party. The part that comes after this phrase defines what conduct applies. Its like saying you are hired as a second shooter and agree not to compete by (insert whatever conduct restrictions here). The restrictions apply but some may be unenforceable or limited by law.
    While proximity and time are the essential core of non-compete restrictions, there is an underlying assumption about them applying the the same kind of work. Its inconcievable that a court would prevent any kind of employment or trade. Afterall its a non-compete, not a non-work at all agreement. Here, the restriction applies to "professionally photographing events" and marketing "products or services" because it says it does. Its an ambiguous restriction however. Broadly read, it can mean any type of photographic work. Strictly read, its limited to wedding shoots. The point you raise about the role is helpful because it may cause the restrictions that come afterword to be legally curtailed or invalid altogether, a separate issue from time and place issues. Of course, Tom or anyone else in such a situation should consult a lawyer in their jurisdiction on the question.
     
  60. I don't know if Tom is getting any usable information or not but this thread is very interesting in what it reveals about the character of the individual posters responding to the subject.....
    Is Tom still around?
     
  61. I am still here (lol). I really appreciate everyone's input (some eye-opening, some entertaining) and I am contacting local lawyers all this week to get professional legal advice.
     
  62. Its regrettable that people here are being called names and that their character is being maligned because they are asking a question about or discussing whether a certain activity is legal or not. Particularly an activity that has been banned or restricted as a matter of public policy by various state governments.
     
  63. Tom, hope all works out for you and look forward to learning the outcome.......good luck.
     
  64. Thanks David. Aren't you the same guy who called me a schmuck? Not sure, I think I blocked that one out of memory.
     
  65. One of the interesting things I've learned from this thread is the wide variance in understanding of basic concepts of a contract. It has shown a quite a spectrum of reactions, some of them reasoned and informed, others based on deep misconception and wild emotion.
    What a minority don't seem to have grasped is that the most interesting element of a contract is not whether it was signed, or the nature of the agreement it was intended to cover, but rather something much more fundamental: Is it legal - and is it binding?
    A contract is not a promise. It is a man-made vehicle that attempts to articulate a legal construct. And not all contracts are equal. Some are good. Some are bad. And some aren't worth the paper they're written on. A wise person will make sure they can tell the difference....
    And anyone who equates contract law with ethics is really missing the point. Contracts are inherently negotiable and disputable by design. Morality (for any given definition) is not.
     
  66. To be specific, this is what I wrote: "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."

    Since to date, you haven't reneged on your agreement and written word, you're not IMO a schmuck............yet. I'm hoping that you'll find a way to turn the situation into a win/win experience for both parties as you assess your personal and professional responsibilities. I suspect that more conversation with the other party could be mutually beneficial. I do wish you luck. I completely disagree with Neil and believe that contracts should flow from personal ethics. I am aware that in the world of big business that there those who make a living at being a schmuck at the expense of others. I'm also disappointed that people are focusing on perceived legal remedies. Recently there's been news of "lawyers" who have advised people to walk away from their mortgages simply because the housing market changed and they find themselves owing more than the house is worth. They were adults, they requested the loans and most had lawyers that reviewed their contracts at closing. It also reminds of a very well known lawyer and public official who needed to have the legal definition of "lie" and "sex" spelled out to him as it related to an abuse of the White House.....course, there were alot of people that didn't label him a "schmuck" either.
     
  67. I completely disagree with Neil and believe that contracts should flow from personal ethics.​
    I respect your right to disagree. But I really hope we're disagreeing about something important.
    If someone were to keep their word on a promise made in good faith I'm sure we'd both agree that would be an excellent characteristic.
    But what if that same person had been manipulated into making an unfair agreement, one that under later scrutiny was discovered to be outside the law and therefore baseless? The law would say that agreement was void - just as if it had never existed. The moral commentator might even assert that the agreement was reprehensible from an ethical perspective, since it was not legal and made subject to manipulation.
    Wouldn't you agree that the ethical, sensible and prudent thing would be to walk away from the agreement? You should at least, because an agreement that's not legal is not any kind of agreement at all.
    Yet in your reaction to some of the earlier comments in this thread you seem to assert that a contract is unbreakable. And that people who make a living exploring and exposing baseless contracts in the business world are 'schmucks'.
    By all means follow that line if you wish. But I trust you'll understand why I can't share your reasoning.
     
  68. Tom,
    I think all of the arguements are getting a bit off side. People can put whatever they want into a contract, but it doesn't always mean that they are able to enforce them. The idea of being honourable is a two way street, but I believe that in this case, the statement "... As a subcontracted photographer/assistant to XYZ photographer..." is put in to stop the employee from stealing clients from the employer. Since, in this case, you have no further affiliation with that studio and the client found you through the internet from another city, all due-diligence has been done. You haven't poached his clients, willingly or otherwise. If you want to start talking about the "honourable thing", the photographer should have paid you for the work that you did from the very begining. To use your images and then try and make you think that you could never work in that business in that city is just plain wrong. Getting experience is one thing, but getting abused while doing it is another. You've paid your dues, now move on and earn your keep. Good work will get you your income, not sneaky contracts.
     
  69. Ryan--that's very dangerous thinking. You've basically made a judgement about the studio's use of Tom's images for free and used it as justification for Tom to ignore the noncompete clause. And also mixing up the idea of honor as opposed to abiding by a contract. I still think they can be two separate things.
     
  70. Rule #17: A contract is a contract is a contract ... but only between Ferengi.
     
  71. I sure hope this argument doesn't break down to a disagreement about the definition of the word "schmuck". That would be taking it too far. All the same, you don't want David Schilling calling you a schmuck in the end. Consider your next step carefully.
    As for me, +1 to the camp who votes that contracts are not moral agreements.
    And what about the clients' right to choose who they want as a wedding photographer? What do you tell them? "I'm sorry. I know you really, really liked my portfolio. But I'm not allowed to shoot your wedding. This geographical area is owned by XYZ Photography. They are the only wedding photographers allowed to shoot here. See, they have monopolistic contracts out with all the other photographers."
     
  72. A rule: Do not sign non-competes unless you're being paid HEAVILY in exchange.​
    Agreed. Doesn't seem right that a contract with a non- compete would be needed to shoot one venue with a photographer. It's not like the OP is employed by the photographer for years and then has the chance to "steal" clients by virtue of that relationship. Even if you ask a lawyer and they say that the contract is unenforceable, this photographer could make life miserable for a time by just by keeping you busy with a lot of legal mumbo jumbo.
     
  73. I believe that in this case, the statement "... As a subcontracted photographer/assistant to XYZ photographer..." is put in to stop the employee from stealing clients from the employer. Since, in this case, you have no further affiliation with that studio and the client found you through the internet from another city, all due-diligence has been done. You haven't poached his clients, willingly or otherwise.​
    The other portion of the terms we were given says that "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". Since this other portion is the portion that governs what conduct is allowed and the portion above does not, its unlikely that the portion above controls what conduct is allowed. It may be influential in a different way in that competition beyond the scope of the role cited above may be unenforcable. If that's the case, it would still cover conduct beyond "stealing clients" because the role is acting as a photographer, not just potential client stealer.
    you're not IMO a schmuck............yet.​
    While the question is about the legal situation, it seems fair game to raise any ethical issues. If certain behavior is seen and described as unethical then it implies unethical conduct on the part of someone who engages in such behavior. Such is the result of moral and ethical discussions. Gratutious hostility is involved, however, when someone is being called names or when the sole text of a post is nothing but an attack on people's character. It not necessary to do that when disagreeing, even sharply, with somebody's comments. Otherwise, the opinions ought to be welcomed even if some portions are not the seen the same way.
     
  74. Mr. Schilling,
    With all due respect, the main photographer buried a quite possibly illegal and extremely broad non-compete clause deep in the contract. It's well within an honest man's realm to seek advice about whether the clause that was included was legal in the first place.
    So what if the next time you install Photoshop, Adobe manages to bury an illegal clause deep in your software agreement that obligates you to pay Adobe 50% of your gross photography income yearly? Are you obligated to pay that because you clicked through the agreement assuming that it was reasonable? It's not always smart to sign contracts without reading them, but it happens all the time. As such, courts will consider whether or not a clause was illegally included in the contract.
    I don't know what the OP should do. I don't know what the law is on this contract. That said, if you are near the beginning of your 5 year period, and you are going to potentially shoot a number of weddings down over the next few years, spending an hour or so with an employment lawyer might be a good investment--especially if he can show that the clause was included in violation of public policy.
    As per David's comments above about referrals and networking with professionals, I'm fairly sure I'd never want to network with a photographer like the one the OP contracted with. Using immoral and anti-competitive contracts against less-established photographers in the market suggests to me that the original photographer isn't the kind of person I'd want to pass off referrals, to.
     
  75. It may not be all bad. If it turns out that you can't do the wedding you could demand a referal fee, or if that doesn't work out, refer your customer to a competing photographer in the area. Unless your contract forbids that too.
     
  76. +1 to the camp who votes that contracts are not moral agreements.​
    I haven't FULLY set forth my own personal position (non-legalistic) on the issue despite all the underlying discussion. Here goes...
    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.
    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.
     
  77. Howdy!
    "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.
    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.
    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.
    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.
    Later,
    Paulsky
     
  78. 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.
    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,.......
     
  79. 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.
    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.
    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.
     
  80. David--Chris is not arguing anything, as far as I can tell. He has some questions.
    Can a Photog Have an Exclusive Contract on City or Venue?
    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?
    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.​
    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.
    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:
    Moderator Note: 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* :^).
     
  81. If I may put forth another perspective to the whole contract v word of honor debate —
    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.
    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.​
    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.
    If Alice is 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.
    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).
    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.
    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 is how contract law works, and there’s nothing at all even vaguely dishonorable about it.
    Cheers,
    b&
     
  82. "David--Chris is not arguing anything....."
    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.
     
  83. James Thurber said, "don't get it right, just get it written".
     
  84. Howdy!
    Oy, vay is mir! Az mir vill schlugen a hunt, gifintmin a schtecken!
    Later,
    Paulsky
     
  85. Heya' Paulsky, stay away from my Golden Retriever :)
     
  86. 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.​
    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.
     
  87. 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.
     
  88. 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.​
    If one is complying with the penalty provisions, then one isn't really in breach of the contract, are they? ;-)
     
  89. 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.​
    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.
     
  90. If one is complying with the penalty provisions, then one isn't really in breach of the contract, are they? ;-)​
    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.
     
  91. Steve--the chances are good that the studio photographer would find out, because Tom already had a discussion with him about his prospect.
     
  92. Since all valid contracts have penalty provisions​
    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.
    I get fussy about words sometimes. In a legal context, those are important.
    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.)
    Let's take two scenarios from an example above -
    • Alice agrees to give Bob $10
    • Bob agrees to wash Alice's car by 10:00am
    • If Bob has not washed Alice's car by 10:00am, he will pay Alice $5

    Scenario 1
    • Alice gives Bob the $10.
    • (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.)
    • At 11:00am, Bob washes Alice's car. Bob gives Alice $5.
    • All terms of the contract have been satisfied. There is no breach .
    Scenario 2
    • Same as above. Except Bob doesn't wash Alice's car.
    • He gives Alice the $5 and says too bad.
    • 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.
    In Scenario 2, Bob is still responsible for washing Alice's car. Alice's options are
    • Forget the whole thing.
    • Sue Bob for what it costs to have it washed somewhere else.
    • Sue Bob for the $5.
    • Sue Bob and ask for a court order that compels him to wash the car.
    (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.)
    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".
     
  93. Since all valid contracts have penalty provisions​
    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.
    What you were trying to say - An enforceable contract has implicit penalties that can be incurred by either party if a court so orders.
    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.
    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.
    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.
     
  94. 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.
     
  95. 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.
     
  96. John - The OP already said he will be consulting with a lawyer this week.
     
  97. Hal, you have a very dry sense of humour :)
     
  98. 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.
    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.
    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.
     
  99. 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.)
    Once I looked up the term "liquidated damages", I understand much better.
     
  100. 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.
    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.​
    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.
    One more thing strikes me. This clause...
    You agree that you will not attempt to market your products or services to venues in these cities.​
    Technically, you did not "market" your services. You made no attempt to advertise or sell. A buyer came to you.
     
  101. The weak party issue is interesting but its difficult to see how it applies here. There's no information about undue influence, duress or so-called adhesion contract situation where one side really had no true negotiation opportunity and no realistic choice but to sign the contract which can lead to unenforceability. It doesn't fit the limited statutory schemes addressing some businesses inherent superior bargaining power like insurance companies where ambiguities (multi-meanings) will be construed against the superior insurance company that drafted a contract. Even then, the contract is still enforceable. If this weak party situation goes this far, we could be excused from out of all sorts of contracts and chaos would ensue. Everything seems to simply come down to whether the law in the jurisdiction permits or limits a non-compete clause.
    But some here allude to the situation being draconian and unconscionable. To me that its more a response to the moral issues raised if one sought to be excused from the contract rather than any legal merit.
    It seems like the "will not attempt to compete" will be the part that matters for this one shoot as opposed to the will not market part. That may come later.
    In any event the OP should rely on his lawyer's advice and not anything we say.
     
  102. As Nathan and a few others have said, I didn't market to the cities OR to the venues in the cities. I simply built a website and built local listings for my business in MY city (not one of the 8 listed in the contract). The client had already chosen the venue before ever talking to me. The client contacted me because of work they had seen on my website of a wedding from the venue in question (from one of the FREE jobs I did for this Photog). The venue falls into one of the 8 cities on the contract and is probably one of the venues that the other photographer shoots at most often.
    I definitely appreciate the experience of 2nd shooting weddings that I have received from working for this photog, but feel that I had been severely underpaid for my work (I was basically a 2nd shooter, and was not "taught" how to be a better photographer), and now that I'm being told that I can't shoot this wedding because it's at THEIR venue, that's WAY over the line for me.
    It's not necessarily that I want to BREAK the contract because I might not need to. It's more that I want to know if my situation even applies to the contract terms because of the nature of how the client contacted me. I don't think I'm in violation of the terms, but the other photog does. Still trying to find a local lawyer to hash this out with.
     
  103. So the photographer allowed you to use the images you shot on your free jobs on your website? If so, that would seem completely counter to the non compete clause which says you cannot market in 'those' cities and for 'those' venues since publishing images on a website can be called 'marketing'. If not, are you also in violation of some agreement/contract specifiying use of images?
     
  104. Yes. They allowed me to use the images on my website as long as I used THEIR watermark on every image shot while working for them, which I have done.
     
  105. Hmmm. Again, seems totally counter to the noncompete clause--to the point where it could be questioned whether such a conflict is 'reasonable' and going to the 'weak party' issue. Please tell us how this works out.
     
  106. What would really be interesting.....how about we invite the other party to participate in this thread?
     
  107. Don't think that is a good idea, David. It would serve no good purpose I can think of. As I said above, we aren't being asked to make a judgement on the issue and it isn't being presented for our benefit, so if anyone asks at all, it wouldn't be "we", but Tom.
     
  108. I am not an attorney and offer no legal advice. I have however written numerous contracts to include non-competes. Generally, a non-compete agreement, to be binding, requires renumeration (payment). What you were paid for your work directly, does not usually count. A separate and reasonable amount must also be paid specifically for the future performance of the non-compete. A few words in an agreement hardly give an individual a right to deny you a livelihood, unless of course you had been well paid in advance to fulfill that agreement. I would think the length of time (5 years) to be excessive as well and may actually exceed state law in your state. Depending on the state, I would bet that the other fellow screwed up by not specifically listing and paying compensation for the agreement. Again, what you were paid to do the shoot....doesn't count. Do get a legal opinion. Check google for your state and look up court decisions for non-competes. Case law will trump all. TERRY
     
  109. I have no useful advice or insight but am just surprised at one aspect of the stated non-compete clause. I can understand the demand on the part of the "employer" that any employees/sub-contractors not use the client list in future endeavors or to make direct use of other proprietary aspects of that business. But I am a little surprised that any jurisdiction would permit the granting of a regional monopoly, even by contract consent. What is the advantage to the community at large to allow this? I thought that restraint of trade is, in general, a bad thing.
     
  110. NPR had a really interesting piece a while ago about how people were choosing to stay in homes they were underwater in rather than break their contract, and how in many cases, it would make more financial sense for those individuals to break the contract, and that would be perfectly legal. However, there is the notion that it is dishonorable to break a contract, so these people keep paying.
    I think Tom is well within his rights to take the job, and it sounds like the photog he worked for is a jerk-Tom was nice enough to call him and ask about it, and the guy says don't take the job? My response to that would be, okay, I won't take it, but I'm going to refer the couple to your competition, and suggest they don't work with you.
    Tom-I hope you take the job, and if you decide it's too much risk, I hope you let the guy know you're referring it to somebody else. It drives me mad to see people take advantage of assistants-I have never let anybody assist me for free, even when they've offered, and it would make me happy to see an assistant go off on their own and be successful, as long as they aren't calling up my clients and undercutting me.
    Competition is part of the business, and if this photographer is really concerned that a young photographer he helped train is going to start taking his business, it sounds like he's insecure and possibly not that talented. My vote is that you take this job and see if the guy decides to take you to court-it would be expensive and time-consuming for him to pursue the case, and I think even a rookie lawyer could break that contract for you really easily.
     

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