The Professional Webspace of Designer and Illustrator Kevin Cornell:
"Design, Art, and Lackluster Humor."
As if remaining competitive isn't hard enough...
It's a common thing nowadays to find a non-compete clause in an agency contract. The phrasing may differ, dependent on how adept the lawyer is at throttling the english language, but the core of the term is usually the same:
If you sign this, you can't work with one of our competitors for one year.
Now, that seems innocent enough, but it can be quite a dangerous clause to a freelancer. I don't think anyone could make enough on a freelance job to afford shunning every other agency in the city for one year. Yet, it's a safe bet every agency requires a freelancer to sign a contract, and odds are every contract contains a non-compete clause.
The question is, does the agency even realize they're doing that? As an Illustrator, most of my work comes in through Art Directors, but they don't read the contract — usually, they don't even send the contract. Most of the time, the contract comes from the Human Resources department; they certainly don't understand the ramifications of the contract on my Illustration career. From the agency contact's point-of-view, they're not aware whether they're handing you a handgrenade or a pineapple.
Soooo.... what then?
While it's a bit scary to think you're the only one actually reading the contract, it's also a bit of a comfort. That usually means if you bring your problems with a non-compete clause to the attention of someone, they'll be sympathetic to your plight. If you find the clause, simply cross it out with a pen, and initial that cross-out. Explain to your contact your problem with a non-compete (i.e. - "I can't afford to not take jobs from other agencies for the next year, unless you can guarantee consistent work."). If they understand, and agree, the agency representative (the agency person who will finally sign the document) should initial next to the crossed-out clause.
Okay Smartypants... What if they don't agree?
Well... if they don't agree, you can still try and negotiate a shorter time span. Or perhaps you can ask that the non-compete be client-specific (since most agencies are hiring you to work for one of their clients, you agree not to work with a competitor to the client). Beyond that, if nothing seems to work... weigh whether you need the job that badly, and make your decision. Whether it works out or not, at least take comfort that it's your own educated choice.
Comments on this Article
There are currently 27 comments.
2. bearskinrug
Right, an "Intellectual Property" clause — I think a lot of the contracts that web agencies put together are written with the technological side in mind; the language is worded to specify who owns what particular application, or unique code. Unfortunately, these agencies tend try to apply the same kind of thinking to what an illustrator offers; but there are different standards for the two professions.
For instance, the illustrator is being hired to create the work, but they should still own the copyright to that work. If the agency wants copyright ownership of that material, that's a separate fee, just as if you were purchasing stock illustration...
3. Robert
Regardless of whether we sign over the copyright or not, all our contracts have a clause stating that we have the right to use any work we produce in our portfolios. This had hilarious consequences when a client we had fallen out with demanded we remove "his" brochures from our website... else he would sue us. It was a particularly sweet moment when I told him to "bring it on, but read the Terms & Conditions you signed bfore you do." We never heard from him again.
For smaller companies and clients, it is usually possible to jump in first with your own contract.
4. bearskinrug
That's a good idea :D
Also, excellent point about jumping in with your own contract — it's definitely a good way to make sure the contract is in a language you understand, and that the terms accurately reflect the illustrator/client relationship.
By the by, if anyone is an illustrator looking to create their own contract, there are plenty of samples provided in the Graphic Artist's Guild Handbook: Pricing and Ethical Guidelines...
5. Malibu
Non-compete clauses for employees are being found not enforcable in many US states. Check with a lawyer before alienating potential repeat customers by challenging their contracts. If it's not enforcable why bother?
http://www.igda.org/columns/lastwords/lastwords_Dec05.php
I like the idea about presenting your own contract first also!
6. Nathan Smith
Wow, I haven't really dealt a lot with non-compete contracts, but had always assumed it means "Don't give this work / trade-secrets to our competitor." I had no idea it was so heavy-handed and broadly sweeping. I guess I'm fortunate that most of my work (aside from my corporate day job) consists of working with churches, who typically want other ministries to succeed.
By the way, I think that's one of your best cartoons yet, very poignant.
7. joesplanet
Hmm, dueling contracts? Sounds like there's another 'toon in there somewhere...
8. bearskinrug
Malibu - Excellent find! Let's hope Pennsylvania is one of the more lenient states... :D
Nathan Smith - Thanks, Nathan!
Joesplanet - Waaaaayyyyyy ahead of you...
9. sutter
The worst is the "No-pants" clause. A three year one can really get embarrassing...
10. Kate
I like the fencing Mojo, Kevin. I just signed on to wish you a very Happy Birthday.
11. Terry Tolleson
BSR... it's your birthday? Are your friends going to throw you a party?
Anyway... I haven't had to deal with a contract specifically like this, but I did have the mose bizarre severance package when I was laid off at an ad agency back in '02.
Basically, it went like this: "You are getting an 8-week severance, of which we will pay you weekly for these next 8 weeks. Every week, you must sign an affidavit that states you have not excepted another job anywhere. Upon finding employ elsewhere, prior to the end of the 8 week period, your severance will be terminated."
mmmmm.... forced vacation...
12. bearskinrug
Sutter - Only for you. A normal person wouldn't ever get a tattoo like that...
Kate - Why thank you! And you found the easiest way to reach me!
Terry - It is indeed my birthday today; the cat has been let out of the bag!
Wow - that's a pretty sweet deal. How long did you work there to earn 8 weeks severence?
13. Terry Tolleson
I was there for only a bit over 2 years. I think the reason they did it like that is because, our "last day" wasn't being listed until a) the 8 weeks was up OR b) we found another job. So, I guess, technically, it was like giving 8 weeks notice, rather than receiving 8 weeks worth of severance.
16. Joshua Lane
AHHHH, it was YOUR birthday too!? Well, happy birthday Kevin!!
You and Niff should throw some sort of combo-party... with balloons and cake :)
17. niff
I also find that giving them your own contract doesn't usually fly. They want YOU to sign THEIR contract. But in my expierience if they are not used to working with an illustrator they are pretty willing to change the contract to fit what it is you are doing for them. I did sign that claus lately... it's been Hell not wearing pants all this time.
18. raymond
yeah, that no pants clause is usually buried deep in the fine print. Luckily, there are kilts and sarongs, but being neither Scottish nor a Pacific islander...
Suffice it to say that I wore pants, but called them "trousers"... You've got to fight them with their own medicine. Once they catch on with a trousers clause, I'm moving on to "slacks". Gotta be wily against the lawyer types.
19. Damien
Good article though I have to say that my attitude is a little different and some advice I'd give to freelancers is, work for yourself, not for others. What i mean by that is, take the work but take it on your own terms and if you dont like the terms, dont take the job - there will be others.
20. bearskinrug
Josh - I could never throw a combo party with Niff. I couldn't tolerate all her biker-gang buddies eating MY cake. Plus, they'd never let that rowdy bunch into Chuck-E-Cheese.
Niff - Yeah - you say it's been hell... but in the meantime you've been getting free drinks at EVERY restaurant you visit.
Raymond - Well... be careful with that. Slacks are technically women's pants. Can you really afford to start wearing women's clothing? Seriously, a good set of heels costs about 200 bucks...
Damien - Good advice... The best part about freelancing is having the choice to take the jobs that might save you an ulcer; you might as well exercise that choice.
21. Travis
In Australia, this kind of clause is often found in contracts; many of which I have signed. It can not be enforced though, due to what is essentially "restraint of trade". A lawyer particularly one with a nose for smelly employment contracts, will be able to guide you through these kinds of nasty pitfalls.
Oh, and Happy Birthday.
22. RonaldB
I may be a bit late, but:
Happy birthday, Kevin!
By the way: I received my copy of The Whippins Campaign last saturday, and read it in one sitting; next day, I re-read it, again in one sitting.
The only thing I have to complain about it is that it's simply too short: how did Charles handle the new challenge?!!
Also, the Shaltazar remake of "The stove is broken" is a classic.
23. anaglyph
Whenever I find clauses I don't like in agency contracts I just cross them out. Remarkably, in a fifteen year span working with ad agencies, I've never had any decison to do so disputed. I figure that by the time the job is rolling, they just can't be bothered getting into an argument about it...
24. jason
Ah... I remember reading my most recent contract (large, well know insurance company in Hartford) and seeing this exact clause. This time, I didn't have a problem with it really. When I'm doing coding work (and form design) it doesn't really bother me that they get to keep the damn things... In fact, other than having a PDF for my resume, I won't see the form ever again (or at least until I'm 55-591/2).
But great info on this one... a lot of people don't realize that this clause is in there... Oh, and happy birthday!
25. bearskinrug
Travis - Hmm - good info - and thanks for the Birthday wishes :D
RonaldB - Remake? That's Plagiarism! I'd sue if I wasn't so afraid of winged carrion beasts! ;)
Anaglyph - Yeah - I could see that happening a lot. Clients always seem to contract freelancers with a time-crunch...
Jason - Do you do a lot of out-of-state work? This clause doesn't even seem like it'd cause a problem when you're working across a large geographic area...
26. norm
this is the best... i just signed a non-complete agreement. i will cease to be complete unless i find the edge of the world. (at which time, i'll be prepared to trip and oncoming trash dumping stemheads)
27. bearskinrug
Yeah! I'll go with you! I can keep those teenagers from using it as their "make-out" point!
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1. Chris
Non-compete clauses are pretty standard in the industry I used to work in: software and systems engineering. In my experience such clauses are usually worded to prevent you from joining particular companies (e.g. those a specific distance away from your work location). This is done to prevent technical innovations or secrets from making their way outside the company whilst they still have an 'edge' in the marketplace.
Another common condition is the 'all your ideas belong to us' paragraph, which means every idea you may have during or outside of work time is owned by the company you work for.
But, as you write, contracts are very much 'up for grabs' when it comes to agreeing to them. If a company really wants you, they'll bend accordingly.