I need to get a non-compete in place for my assistants. They are in photography school and live fairly close by. anyone have an agreement that they would be willing to share with me?? Can either email or PM me, I would really appreciate it!!

Even if you get one, you should probably consult a lawyer because different states have different laws regarding the enforceability of these.

Why bother going to photography school if you're not allowed to become a photographer when you graduate? Isn't that what they're striving for? Why would they sign something promising they won't? (This is a serious question by the way - I'm not being sarcastic! I really wonder why they would sign anything like that. I know I wouldn't have!)

That SOOOO didn't answer your question. Sorry

Sounds like a job for a real lawyer. Keep in mind that even if you get one you'll probably have to sue to enforce it and that will likely cost you more than its worth to pursue...

+1 on Sarah's sentiment. One of the issues with having an assistant, or any employee for that matter, is that they may strike out on their own.

I don’t have one but I will be getting one written up. I worked for a very well known local studio in my area. I had to sign a Non-compete agreement.

My non-compete wasn’t that bad, the highlight was that I was not permitted to open a studio within XX miles for one year after the date I resigned.

I just uploaded a video about this to the Freedom Club yesterday ...It's really dangerous to take on the mindset that other photographers are your competition. It's a death trap that I've seen too many photographers step into. The biggest competition we have in this industry is our clients - not other photographers.

Everyone should watch it!!!

Don't get me wrong, I am all about teaching and building a relationship with my employees BUT I don't want to get burned. I know too many photographers in my area that have been totally burned by someone they trusted.

The people I have hired are from my area (duh, not like they're gonna work for me and live an hour away) and I am teaching them EVERYTHING about my business. My clients are also getting to know them. I am a higher-end priced studio. These employees could very well leave me and attempt to take some clients with them either right in the same town, or the next town over.


I treat my employees with nothing but respect and trust and we all get along awesome, but what's to say that I won't get burned by them?!?

I am a business-woman first, artist second (sorry, I have equal left and right brains, it's a god-given burden!). I want to do what's right for my BUSINESS.

To answer your question Sarah, the non-compete usually states something like they can't go to a competitor and teach them everything I have taught them, and they can't open their own studio with a certain amount of miles within a certain time frame. Most students aren't planning on opening their own studio right away, BUT even the students I have now are ALWAYS asking "so how much did WE just make on that order?" They have dollar signs flashing in their eyes and as much as I try to teach them the business side of it all, all they can think of is making money! lol....

And I totally agree with you DJ. Look at Stephanie Clark and Lori Nordstrom. They were total soccer moms and have become HUGE, successful photographers! I also think it's the potential client we need to be scared of as well, the ones who won't even come in because they can take their child's own senior photos, or uncle bob can shoot their wedding! I hear ya!!

I'm gonna be pretty stubborn on this because I think it's important to beat this mindset out of ourselves.

Can you tell me what you mean by being "burned" ?

I truly believe that I could write down every single thing that I know and every single thing I've done - hand it to somebody and not feel threatened because I know that even if somebody knows EVERYTHING and wants to "compete" with me I understand one fact and that is that it will still take them time to accomplish what I've accomplished and once they do that I'll have progressed as well....unless of course I just want to sit around and do the same thing I'm doing now but if that's the case I deserve to be passed up.

In my opinion a non-compete in our industry is simply a way for a photographer to try and hold somebody down. As I've shown in the photo below if you try and hold somebody down as they try and stand up you have to keep lowering yourself to do it....it's the same in business.

I think there are two totally different mindsets at play here. David, and others 'like him' are innovative and flexible and constantly changing/improving what they do. That's one way to do business.

On the other hand is a business owner that has a stable market share in a stable market and wants to keep it that way. Not a bad thing, but both are risky in their own way and have their own problems and solutions.

Down the street from my house is a taco truck that parks in the same parking lot every day. For years. It's got good food and a consistent lunch crowd. About a month ago another identical taco truck started parking across the street. I mean exactly the same, they have the same brand/model generator sitting out front and when they open their sales windows they are literally face to face across a 4 lane street. That's gotta piss ya off. This guys been making a steady living serving lunch outta the same parking lot for years and now here is a clone trying to take a chunk of his business, and probably succeeding.

I know that's oversimplified, the options for getting and reasons for buying photography are vastly more complicated than a taco. But in a limited way it works.

So I can see both sides. I personally prefer David's way of working, but I don't have a brick/mortar store front in a small town either (thank goodness!).

I did some work for a studio last year that wanted me to sign a contract prohibiting me from using the images I took (at all) and they also wanted a non-compete. I wouldn't sign the non-compete, I never would! I'm competing. I agree with David that it's better for wedding photographers in particular to work together for the overall good of the industry. If you're outgoing, have good work to show and work hard, you'll make a living. How good of a living depends on your business skills more than anything else. But that mindset is fundamentally different than running a downtown portrait studio with a fairly large and consistent overhead.

So if it works for you Amy, then awesome, but it might drive good people away (you'd lose me over it!).

Best quote ever DJ. Thanks for that.

I shot a wedding at a new location yesterday. When we got to the salon there were another husband/wife team shooting their bride there as well.

I cringed on the inside, always worried that someday I will have to put up with another "territorial" photographer. (I have one here in town that has been known to rip me in public)

I walked up, introduced myself, and thankfully they were of like mind and we traded business cards, joked and had a great time trying to get out of each others shots in a painfully small space. It was great.

+10000000000

Ok, here's the being "burned" situation. Imagine you have hired a really fantastic graphic artist. Things are going really great. You've taught them how to do everything you "do" to make your images have "Your Look" to them. Now imagine they go work for a photographer about 10 miles away from you and they are now make their images look like yours. Not so cool.

I get what you're saying DJ, I am not trying to hold anyone down. I totally understand that at some point all of my employees will either have their own business or move onto somewhere else, they're only 18-20 years old right now!

Dj, you're out there selling your products knowing that everyone is going to be able to do their work and have it looks like yours (sorta, you know what I mean). My best friends in the world are my "competition" right in my surrounding communities. I have no problem with competition and agree that it helps us make ourselves better and forces us to strive to stay ahead of the game.

HOWEVER, when I have a storefront studio in a smaller town (with about 3 other photographers in town already), I don't exactly want my employees to start opening up shop on the same street! It honestly wouldn't be beneficial to either one of us, not just me!

Amy I understand your position and I understand DJ’s position as well. I’m an individual who has signed Non-Compete, NDA and separation agreements.
Keep in mind Amy that you can not prohibit someone from making a living with a Non-Compete. Non-Compete agreements are more geared towards establishing a new storefront establishment across the street from you, your situation is that an employee of yours went to work for another studio. They can challenge that in a court of law and usually win. The terms of a non-compete also have to be realistic usually for a one year term.

In a situation as yours you may benefit from an NDA and or a separation agreement that simply states that they are not permitted to show or tell the tricks you have taught them to anyone. Thus giving this individual a talent that they can use. Granted they may use it while working for your competition but if they ever move on your competition should not have that so called trade secret.

I'm with DJ on this one (again).

These students are going to bee your friends and peers in a few years. You don't want to be that 'nasty' photographer in town, do you?

I have a simple agreement with my assistants/2nds. I just ask that they don't post any shots on the web for 90-days. They can use the stuff in print, or in class, but no web stuff. I remind them that they don't have a model release, if any trouble comes up.

I've never had a problem. Ever.

I gotta go with DJ here...
It really is funny to me how small business people think that for some reason employees are bound to be loyal and go the extra mile for them. Think about it, when a huge accounting firm trains up 1,000's of people and most leave in less than 2 years they don't make them sign NCA's. When I worked for a regional marketing research firm (with 5 others within 20 minutes) they didn't make me sign a NCA. The reason is the same for both (I'm absolutely sure that both businesses would love to make employee's sign NCA) if they made you do it nobody with any talent would work for them!
The reality is that employees are going to do what is best for themselves just as you would do in their situation. If you are loosing employee's to competitors you need to think about how you are compensating them. If you are worried about them burning you maybe you need to pay them more and/or ask less of them for the money you pay. The only thing that will create loyalty from an employee is if they feel they are fairly compensated and treated. Making them sign non-compete agreements is a sure way to get them to feel like they were taken advantage of while they were in school. Non-competition agreements are bad for employees and will breed resentment in the long run. Even if you pay well and treat them well they will always feel like they are trapped in that they can't take the skills they have learned and make a living with them.

And sometimes, they just don't care. Or think that because they didn't sign anything that they have full right to use 'em. Just sayin...........been there.

If you want one, I agree that you need to have one drawn up by a lawyer becuase the laws on what is legal and binding is so varied from state to state. But I gotta say, I would never sign a non-compete in that situation. It would impede my ability to earn a living.

Karen

Christos, good points about NDAs. That type of agreement seems more in line with something enforceable though I'm no lawyer and give no legal advice.

My non-lawyer opinion is that even a solid NDA would be difficult to enforce against a recent art school graduate who decides to use his/her newfound knowledge in a competing business because so many photographers are using the same tools: programs, action sets, presets, and scripts.

For example, if I had signed a NDA or Non-Compete and up-and-decided to quit being an assistant, taking all of the things that my wife taught me about photography, Lightroom, and recreated/reverse-engineered her PS actions for my own business she'd probably be S.O.L. for a lot of reasons:

• It's expensive to sue someone -- especially when your expectation to get anything back from a startup company is very small.
• The tools she used are readily available to anyone in photography
• Most techniques have been published for free somewhere on the Internet or easily found at the local library.
• Artists have been copied from the beginning of art.
• The person who sues another photographer to prevent that photographer for using their techniques or methods will bring a lot of negative attention to his/her studio in the process.

My apologies, Amy, for the thread not quite serving its original purpose, but I think there are a lot of things to draw from the conversation. KarenS (get a lawyer), Colin (pay well, don't take advantage) and David Jay's (don't hold others back) comments are especially poignant.

Damon. Although non-compete agreements are usually harsh and people don’t like them, it all boils down to what the terms of the agreement are.

When I signed up to work with a large studio in NY it contained a bunch of stuff, work for hire, non-compete and NDA stuff all in one document. And I still agreed to it. Now for the non-compete it was rather simple, I was not permitted to open a store front studio within the same township for one year. Now that didn’t bother me because NY is a very large town, it didn’t prevent me from working at another studio and it also didn’t prevent me from working out of my own home.

NDA agreements I see them as a win-win. Although they are harder to enforce they can still serve a purpose. Now as an employee of a large studio you will learn a lot of stuff and tips and tricks so knowledge is power and it only benefits you in the long run. You are an asset to the company you have what is called intellectual capital, I hope you see the win for the employee here.

If that employee leaves and works for another studio under the terms of the NDA, they will not be permitted to disclose “trade secrets and stuff” although the employee is still required to produce the same level of works. And trust me they will try to get it out of you, especially if you have a certain look and feel to your PS work. As an employee you should be able to realize this

Now I know I’m thinking with my business mind, and hell New York is New York so we are looking out for our own best interest. As I’m sitting here I’m thinking about the single shooter studios, weekend warriors, family owned studios and the wedding mills. We are talking about the $500 gig to the seven figure studios that can shoot upto 600- 800 weddings per year.

I’m sure I’m not the only photographer or the last that lives in a big city that hasn’t heard of and agreed to NDA’s, non-compete and work for hire agreements.
So it all boils down to that you are working for someone else, and in that case you have to play by their rules. If you don’t like it, become a sole proprietor and start your own business.

Well, I agree with the others, but I also understand where the idea of a NCA would come from, which is why I suggested a lawyer, like Karen. The laws *do* vary from state-to-state because of the ideas of them being able to earn a living afterward - states interpret "reasonable" restrictions differently, and even within a state, you may find different application from metro versus more rural areas. A local attorney would be better able to tell you what you can and can't enforce, and other ways to try to "protect" yourself, potentially without some of the negatives that can come with NCAs and NDA (disclosure). There may be other structures to put in place to help protect yourself both from a legal and non-legal standpoint...

I'm curious what PS "trade secrets" exist. I'm not trying to be funny, I'm just not able to figure out what you mean.

I'd be more worried about the repercussions Digital Millennium Copyright Act issues from reverse-engineering a plug-in than an NDA being enforced for doing PS work that looks like another photographer's. It just seems so ridiculous and anti-competitive (obviously ). In NY I can see how this type of stuff would fly, but only the Non-Compete with regional restrictions.

I wonder how often -- if ever -- one of those NDAs has actually been used in a suit that got to court. Of course knowing that the threat of litigation, even if it's unlikely to succeed, is enough to have people honor their agreements.

It's expensive to enforce NDA's or any other breach of contract. So most decide to let it go. Unless you have an NDA with Microsoft, Apple Dell and IBM as I did when I worked in IT for a large financial firm. They have deep pockets. And wouldn't you like to know the crap and dirt within MS operating systems I caint tell ya, since i signed a sepration agreement that had Confidentiality clauses.

I agree they are a joke and retarted. And I agree with David and most that posted against them. But sometimes they are the nature of the beast.

Hell, I walked into all the small local studios in my area to introduce myself and inform them that I'm also looking for second shooter position if needed. Man if looks can kill. It must be the mentality here.

mine, mine, mine, mine ALL mine.

You can't force someone not to disclose information that is publicly available. So, truthfully unless you have some kind of secret formula that you have never shared with anyone and that no one else is doing (which just seems a bit impossible to me) a NDA is not going to be enforceable. It makes much more sense when we are talking about IT and software codes. But, unless you created your own software to make your pictures different in post, or invented your own lens or someother contraption to give your images something unique, I just don't see a NDA being applicable.

As for a Non-Compete agreement, I just don't see the need. First of all, one of the things that I love about this industry is how much everyone is willing to share and teach and it's just amazing to me! My clients continue to come back to me every year (even as my prices increase) because I am providing something no one else can give them. And if they stop coming to me and start going down the street, that means I'm doing something wrong. Because it doesn't matter how much I teach someone else, no one is ever going to be exactly like me and I'm never going to be exactly like someone else. And if I stop providing my clients with the images and service that they value, they SHOULD go somewhere else.

That being said, I think a non-solicitation agreement might not be a bad thing if you have ongoing clients - I don't think it would be right for another photog to take your list of clients and solicit them directly after leaving your studio. I could understand you wanting to protect that information, even if only to keep your clients' information private. But even if they did, why do your clients choose you? Everytime they make an appointment with you they have the choice to make it with you or someone else. And if they choose someone else besides you, is it going to be because they opened a storefront across the street from you?

Just my .02...

-Jessica

I think your opinion is worth a little more than $.02 in this discussion since you're a real attorney.

Jessica, what's your billable hours rate ? (You don't have to answer)

And good point on the client angle. It's one thing to protect a client list -- especially if an associate photographer is employed -- but it's kind of ridiculous to try to hold back an ex-employee with the threat of litigation.

Running a studio (and even a home-based business) is hard work and if the employees understand that they'll probably stick around for a while to learn all the ins and outs before breaking away with the business model /

I agree with Jessica. There are a ton of wedding photographers, even more so since the digital era and now EVERYONE is getting into weddings, or portraits, or babies or whatever the newest photography craze is. The thing that will set you apart from your competition is you. You can't teach another person to be you. And everything you know about this business, or know about PS or know about post, or what lab you use or what album company you use, someone else can find it or figure it out without too much trouble because of this great resource we call the internet. So, if you are being yourself, shooting from your heart, are truly genuine with your customers and get done what you say you will and when you say it will be done, your clients will have no reason to go somewhere else and they will have no reason to not refer other people.

There is plenty of work to go around.

I have a similar style to another studio in town, who is within a 5 mile radius of my place, but if I badmouth them or try to outdo them, etc, I'm only hurting myself because I'm getting caught up in the competition and losing sight of the art. I've been told time and time again that couples have hired me because of my personality, and no one else can be me, regardless of how good their photos are. I can't shoot every wedding, I'm not the greatest photographer in the world, but I'm great at being me and I have a passion for what I do, so worrying about the other guys is only going to make me crazy and push people away. I've been there and done that.

Being friends with assistants and other photographers is only going to raise you up. When you start holding people down, as DJ says, you are only hurting yourself. Plus if people start copying you, it can only raise you up and make you more worthy. Clients want genuine people to work with and if you are that and are truly committed to helping them out, you have nothing to worry about.

I think the non-solicitor agreement is the best option, if you have to go with one, so they can't pursue the clients you've worked so hard to obtain. But it just comes back to what I said in the previous paragraph.

Where can I find this video? That sounds really interesting.

THANKS! Sarah
sarahshalley@gmail.com

CNC are ... iffy at best. Whether or not they're a good idea, there are a LOT of restrictions on their use. Check into it with a lawyer, for real. Not worth the headache tho either way.

wow-- I am glad I have never been asked to sign anything like this. As an assistant and a second shooter, I would be a little taken aback if someone asked. I hope that working with someone on a consistent level allows for some level of respect and trust to be built, and that would knock that all down for me....not because I have any intention of divulging trade secrets or opening a studio in the same street maliciously, but more that it would feel sort of insulting. like a prenuptual agreement mentality, sort of.

In a way I feel like I bring as much to the table as some of the photographers I work with as far as post processing and such, and in the form of fresh ideas, etc....so maybe you have to sign one too that if one of your assistants does a post technique that you really like and use on your images, that you won't use it anymore after they leave. you will just have to pretend you never learned it. silly, right? There is free access to ANYTHING you need to know on the net and it is indeed silly to think any of us has any secrets left that can't be learned from someone else.....and if someone asked me to sign something like this, that is what I would do---go learn from somebody else. Don't cost yourself good assistants over fears of possible future competition. :-)

Kate