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

[hal_b]

<blockquote>

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

</blockquote>

<p>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."</p>

<p>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.</p>

[john_novince]

<p><strong><em>you will not attempt to compete with the business of XYZ photography by professionally photographing events in the cities of .......</em></strong><br>

I think this makes the issue of pursuit a moot point.<br>

<em></em></p>

[timothy_gray]

<blockquote>

<p>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>

</blockquote>

<p>Well put, David! How can the OP expect clients to honor their contracts/agreements if he doesn't honor his?</p>

 

[Spearhead]

<blockquote>

<p>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</p>

</blockquote>

<p>This is not true. See the<a href="../info/guidelines/"> Community Guidelines</a> :</p>

 

<blockquote>

<p>Photo.net's policy is not to remove any user contributed material unless it violates the site's Terms of Use</p>

</blockquote>

<p>We've gotten a bit tighter on enforcing this lately.</p>

<p> </p>

[tom_boston1]

<p>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.</p>

<p>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 "<em>severability clause</em> " that says invalidation of any part of the contract will not affect the rest of the contract.</p>

<p>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."</p>

<p>How about not competing for a five year period beginning on your 65th birthday?</p>

<p>Does the contract you signed say anything about damages? I'd consider just going ahead and shooting the wedding. (<em><strong>I'M NOT A LAWYER AND THAT COULD BE REALLY BAD ADVICE IF IT OPENS YOU TO A BIG AWARD.</strong> </em> ) 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.</p>

 

<blockquote>

<p>The first two I shot for free, and gave them all of the images to use.</p>

</blockquote>

<p>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.</p>

<p>You might want to register those images to have a little more leverage using them.</p>

 

<blockquote>

<p>Well put, David! How can the OP expect clients to honor their contracts/agreements if he doesn't honor his?</p>

</blockquote>

<p>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.</p>

<p>If the agreement is invalid, there's no ethical issue about abiding by the terms.</p>

<p> </p>

[scott_murphy_photography]

<p>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.</p>

<p>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:</p>

<div></div>

[john_h.1]

<blockquote>

<p>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.</p>

</blockquote>

<p>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.</p>

<p>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.</p>

[john_h.1]

<blockquote>

<p>How can the OP expect clients to honor their contracts/agreements if he doesn't honor his?</p>

</blockquote>

<p>By having contract terms that actually comply with the law.</p>

<p> </p>

[david_schilling___chicago_]

<p><em>"Contracts are not blood oaths of honor....."</em><br>

<em></em><br>

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.</p>

[timothy_gray]

<blockquote>

<p><em>Contracts are not blood oaths of honor and loyalty.</em></p>

</blockquote>

<p>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?</p>

[ds_meador]

<p>"Contracts are not blood oaths of honor and loyalty."<br>

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.<br>

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.<br>

DS Meador</p>

[senor_crocodrillo]

<p>"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."<br />David, if he follows your high-horsed advice, he won't be able to shoot those referred events.</p>

[indraneel]

<blockquote>There was a time in which a man would sooner die than go back on his word.</blockquote>

<p>Those men are dead, with good reason.</p>

[neilambrose]

<blockquote>

<p>Wow. That statement is so wrong I don't even know how to respond.</p>

</blockquote>

<p>I notice people often confuse contracts with promises. They're not the same thing.</p>

<p>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.</p>

<p>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.</p>

<p>Understanding contracts - including how to break them - is one of the most basic principles of business. Or at least, big business.</p>

[kelly_flanigan1]

<p>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.</p>

[sven_felsby]

<p>Thanks, Neil and John. You sorted it out!</p>

[picturesque]

<p>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.</p>

<p>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.</p>

<p>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.</p>

[tom_boston1]

<blockquote>

<p>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.</p>

</blockquote>

<p>But avoiding any problems by not taking jobs for five years would affect a whole career.</p>

<p>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.</p>

<p>Wait, will a lawyer ever give a simple answer? :-) Maybe not, but it's still a good place to start.</p>

<p> </p>

[JRCrowe]

<p>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. <a href="http://www.consumer-sos.com/Georgia/Work/non-competes.htm">http://www.consumer-sos.com/Georgia/Work/non-competes.htm</a> 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). </p>

[picturesque]

<p>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.</p>

[david_schilling___chicago_]

<p><em>"It's perfectly legitimate to sign a contract with the intention of breaking it....." -Neil</em></p>

<p>Perhaps in your world it is, not mine.</p>

[tom_boston1]

<p>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? </p>

<p>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.</p>

<p> </p>

[neilambrose]

<p>David, that's probably exactly right. But I don't view that as a bad thing.</p>

<p>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.</p>

 

[jtk]

<p>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.</p>

<p>A rule: Do not sign non-competes unless you're being paid HEAVILY in exchange.</p>

[eric merrill]

<p>Tom:</p>

<p>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.</p>

<p>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. </p>

<p>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.</p>

<p>Eric</p>