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

[john_h.1]

<blockquote>

<p>Sir, you have quite a bit to learn about the business of photography</p>

</blockquote>

<p>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.<em><br /> </em></p>

<blockquote>

<p>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>

</blockquote>

<p>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. <em><br /> </em></p>

 

<blockquote>

<p>I've never claimed that honor and personal integrity had anything to do with what is legal or illegal.</p>

</blockquote>

<p>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.</p>

<p>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.<br>

<em><br /> </em></p>

[john_h.1]

<blockquote>

<p>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>

</blockquote>

<p>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.<em><br /> </em></p>

[kelly_flanigan1]

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

<br /> 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.<br>

<br /> 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.<br>

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

<br /> Get a lawyer in your area to see if there is any legality to this absurdity.</p>

[dave_redmann]

<p>As a lawyer, I'll offer a few observations, which are not specific legal advice, but just general suggestions:<br>

(1) Any advice from anyone who has not (a) carefully studied the <em>entire</em> contract and (b) been issue a law license in the jurisdiction(s) at issue, is not worth too much.<br>

(2) The degree to which non-compete agreements are legally enforceable varies considerably from jurisdiction to jurisdiction.<br>

(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.<br>

(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.</p>

 

[picturesque]

<p>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.</p>

<p>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.</p>

<p>Tom has already talked to the studio photographer, who has told him he can't take the job.</p>

[ash_laidlaw]

<p>I'm not a lawyer. But my two cents:</p>

<p>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.</p>

<p>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.</p>

<p>Also, does XYZ photographer shoot weddings? If not, than you're not competing.</p>

[aladennis]

<p>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.</p>

[mel_unruh]

<p>Tom,<br>

I went through something along these lines a few years ago here in CA and here is what I learned.<br>

An important question has to be answered first. Were you an Employee or an Independent Contractor?<br>

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.<br>

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.<br>

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.<br>

Mel</p>

[john_h.1]

<blockquote>

<p>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.</p>

</blockquote>

<p>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.</p>

<p>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.</p>

[david_schilling___chicago_]

<p>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.....</p>

<p>Is Tom still around?</p>

[tom_collins3]

<p>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. </p>

[john_h.1]

<p>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.</p>

[david_schilling___chicago_]

<p>Tom, hope all works out for you and look forward to learning the outcome.......good luck.</p>

[tom_collins3]

<p>Thanks David. Aren't you the same guy who called me a schmuck? Not sure, I think I blocked that one out of memory. </p>

[neilambrose]

<p>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.</p>

<p>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?</p>

<p>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....</p>

<p>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.</p>

[david_schilling___chicago_]

<p>To be specific, this is what I wrote:<em> "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."</em><br>

<em></em><br>

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.</p>

[neilambrose]

<blockquote>

<p>I completely disagree with Neil and believe that contracts should flow from personal ethics.</p>

</blockquote>

<p>I respect your right to disagree. But I really hope we're disagreeing about something important.</p>

<p>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.</p>

<p>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.</p>

<p>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.</p>

<p>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'.</p>

<p>By all means follow that line if you wish. But I trust you'll understand why I can't share your reasoning.</p>

[ryan_harker1]

<p>Tom,<br>

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.</p>

<p> </p>

[picturesque]

<p>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 <strong>can</strong> be two separate things.</p>

[gkgerber]

<p>Rule #17: A <a title="Contract" href="http://memory-alpha.org/en/wiki/Contract" title="Contract">contract</a> is a contract is a contract ... but only between Ferengi.</p>

[hal_b]

<p>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.</p>

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

<p>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."</p>

[thomas_hardy1]

<blockquote>

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

</blockquote>

<p>Agreed. Doesn't seem right that a contract with a non- compete would be needed to shoot <strong>one venue</strong> 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. </p>

[john_h.1]

<blockquote>

<p>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.</p>

</blockquote>

<p>The other portion of the terms we were given says that "<em>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</em>". 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.</p>

<blockquote>

<p>you're not IMO a schmuck............yet.</p>

</blockquote>

<p>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.</p>

 

[juanita_ramirez]

<p>Mr. Schilling,</p>

<p>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.</p>

<p>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.</p>

<p>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.</p>

<p>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.</p>

[JRCrowe]

<p>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.</p>