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Freelance Editing + non competition agreement
I am a freelance editor. Recently a producer (and friend) hired me to edit an hour long documentary for PBS. She was hired by PBS to be the director of editing and I the editor. Towards the middle to end of the project, the PBS executive producer felt that it was necessary to communicate directly with me so that her ideas would only be interpreted by one person (me) instead of a middle-man (my friend + producer). (It’s like playing that telephone game when your a kid… ideas get distorted when you have to go through people to get to the end result)
The exec producer of PBS has never worked with freelancers before, but due to severe budget cuts, she hired my boss to oversee the editing; my boss hired me to do the actual editing. The exec. producer of PBS was not aware of what a pain it would be to have to go through a middle man to communicate her ideas.
With all that being said, the doc is finished. The executive producer of PBS called me last minute to edit a short 4 minute piece that is due in three days. Small project, very little money involved. I agreed. I didn’t ask my producer if she’d mind. I didn’t think of it. I did not sign any anti-competition with my producer, but when she got word that I was working for PBS on this 4 minute project, she became upset and confronted me and the exec. producer of PBS. She told me that from now on I must sign a non-competition agreement.
My issue is ….. I do not work full time for this woman, maybe I edit 1 or 2 projects a year from her (all low pay). She cannot guarantee me a certain number of hours or wage. PBS said they want to continue working with me. They do not want to work with my boss because she does not actually do any editing and going through her is a waste of time and money.
I asked my boss if I went directly to PBS and applied for an editing job, would that non-competition clause apply. I didn’t get an answer. Do you think it’s fair to sign this agreement? I do not mind signing an agreement that I will never seek employment from any client of hers, but if they actively seek me out, what should I do?
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59 Replies
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1) This is always a challenge when working with friends.
2) In some states, like california, non-compete agreements are unenforcable. https://en.wikipedia.org/wiki/Non-compete_clause
3) You have no business nor personal agreement with your producer/friend now. So she has no say over whether you work for PBS or not. However she does have a say over whether she continues to provide you work. So from a business perspective, it’s pretty clear that if two clients are conflicting, you work with the one that provides the greatest benefit.
4) I expect my subcontractors to not steal my clients, so I understand. When I start working with them, I make where I stand clear. I would stop working with a sub who stole my client.
If I were you, given that the workload from her is low pay and minimal, I would continue working with PBS and tell her:
– you are happy to continue working with her
– will not actively seek to steal her clients
– will not turn down work if a client actively decides to stop working with her and seeks you out
– will not sign a non-compete agreement (or if illegal or unenforcable in your state blame it on the law: “non-competes are unenforcable here”)If she decides to not work with you, then you got an upgraded client. If she does, then you have a clear working relationship, and you have two clients.
As for doing business with your friend, that is always laden with the possibility of destroying your friendship.
Cory
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Cory Petkovsek
Corporate Video -
This is you answering your own question.
“My issue is ….. I do not work full time for this woman, maybe I edit 1 or 2 projects a year from her (all low pay). She cannot guarantee me a certain number of hours or wage. PBS said they want to continue working with me. They do not want to work with my boss because she does not actually do any editing and going through her is a waste of time and money.”I wouldn’t consider this ‘stealing’ a client.
Don’t even think about signing a non-compete with this person. It’s pointless since she isn’t an editor, and you are not attempting to take her ‘producer’ job. I don’t really see where you are competing with her. And as Cory pointed out, these are notoriously hard to enforce in many states. If you check into it, you may find out this is a violation of your states labor laws. If a client decides that she isn’t providing value, and you are, that is her fault. Not yours. If she doesn’t like it, and decides not to offer you a couple of low pay jobs this year it doesn’t sound like your missing out on much of anything.Scott Sheriff
Director
https://www.sstdigitalmedia.comI have a system, it has stuff in it, and stuff hooked to it. I have a camera, it can record stuff. I read the manuals, and know how to use this stuff and lots of other stuff too.
You should be suitably impressed… -
Your “friend” is being unreasonable. You need to find a nice / charming / acceptable way of standing your ground while bringing her back onside.
Your are not competing : you have been offered edit work (which your friend does not do).
Her issue, seen one way, is that the end client, perhaps through budget restrictions and perhaps for other reasons, wants to be more “hands on” and bypass producer / director contact and go straight to techs on at least some projects.
With the economy as it is, this may add to any insecurity your friend is feeling.
But whether the end user hires you or someone else, s/he wants to bypass producer level : your friend is not going to get that work. She should be pleased it’s come to you : it’s a favourable comment on the work you did together.
Agreeing not to compete as a producer with her clients wouild be reasonable, if that would mend your fences with your friend. Otherwise, it might be a case of smiling sweetly and saying no: you can’t afford to turn down work that your friend cannot anyway do, if directly approached with it.
If that costs you your friend’s projects, you’d have to bear that loss and hope the other work more than compensates. If it costs her friendship, that’s sad ; but what kind of friendship was that ?
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Hey Lisa,
Allow me to disagree with the others on this one: Any one of my freelancers that takes up work directly with anyone of my clients that has been introduced through me, without getting my blessing first, seize with immediate effect to work for me (and being my friend).
Likewise, I extend the same principle to my own clients, hence why they are happy for me to work directly with their clients, because they know that I won’t steal them and they know that I’ll look after their interests. It has not been uncommon for me in one particular situation to phone up a client and tell them that they need to invoice XYB corporation for a XYZ job that I’ve already done and delivered directly on their behalf. Even recently I had a major government contractor phoning me because they could not get hold of my client, same principle applied, I took the order and passed on the paperwork. My client is now even more happy to use my company’s services.
And no, there is NO such thing as a small job, a job is a job, and you should respect the hand that has fed you previously. Mark my words: Soon, one day PBS will talk with your digitizing assistant and find that they are cheaper than you to use… So shame on you and more shame on PBS for pulling this stunt.
Sorry to be harsh, but if you approach your business dealings from a point of honesty and integrity you won’t need a non competition agreement. All you had to do, was ask your client whether it would be OK, and she might just have said yes. Instead, PBS got you to organise a reduction on their editing fees…
Hope this point of view helps you.
All the Best
Mads
London, UKPlease do visit our faceBook page here: https://www.facebook.com/MacMillionProductions
Mac Million Ltd. – Digital Media Production
Blog: https://macmillionltd.blogspot.com -
The short little job came after the big job was finished. You didn’t go seeking out the new job, they came to you. You are a freelance editor. You had no formal agreements to the contrary. I move these pieces around and they fit together in such a way that suggests to me that you technically did no wrong. Technically. From an interpersonal relationships aspect I think you should have said *something* to the first client, if only along the lines of how the PBS client has contacted you back for an unrelated job. Your “friend” has no claim on you as far as I can see. If you want to humor them and sign the non-compete, you can tell yourself it’s likely unenforceable.
Really, what your friend is mad about is that they can’t add on their surcharge for doing nothing to your charge for actually doing the work. You’ve exposed them as basically useless, and this will cost them money in the future.
While I understand where Mads is coming from, a freelancer who can’t free-lance is going to go out of business. By nature they have to be free to work wherever the work is. If the “friend” wants to put you on retainer or salary, then they can expect to dictate whom else you do jobs for. And you shouldn’t be doing a job for PBS while you’re still working on another PBS job with this friend. A huge no-no is to even discuss possible work with your friend’s client during the current job, that is s huge breach of trust, etiquette, and professional protocol. In that kind of case I would agree 100 percent with Mads’ view. But I don’t get that kind of vibe from your description of this incident.
Your post suggests that the friends’ job is done, and that’s why I think it’s a case of no harm, no foul. It was unrelated work for the same client. The friend introduced you to them. They reached out to you. Looking down the road, this is a relationship that could work positively both ways, in that you can refer producing work back to your friend when you deal on editing jobs with this PBS client in the future. Explain diplomatically to the friend that you’re willing to do this for them, and maybe they will lighten up. If they don’t, well, you have to decide what’s best for your career, but by your description, you’re not missing much with an “editing manager” who doesn’t edit. After all, anybody with a phone and a pulse can call themselves a “producer”. If all they do to add value to the program is literally tack on a fee, and contribute nothing, while someone else does the work, I’m not surprised that the PBS person wants to cut out the middle-man.
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Just decline if it comes up. Some gigs and jobs are worth signing em for but some are not. A friendly phone call to the producer probably would have kept everything all smooth betweeen the two of you. It aint an asking for permission thing just a classy I’m not sneaking over your head gesture. I’ll tell ya what happened to me a couple of weeks ago.
Dude calls me up and asks if I will run camera as a freelancer at his studio for a couple of days. He and I go a decade back and we’ve always been friends. As shoots go, good ones, anyway, we often become friends with the clients over a day or two. Such was the case this time and at the end of the two days, as we were parting ways, my friend’s client asked my if I had a business card. Brother, I thought nothing in the world of it, slid it to her with him standing next to me and said something like “just be sure to request me next time you’re talking with Kev”. They split and good ole Kev aint been the same since. He saw it as I was going after his client. I tried to explain if that were the case I would not have done it in front of him. To this day, he’s all fussy. My fault? Well, it was as easy as just saying what I said and pulling no card out. I just didn’t think and while I have explained to him that my mistake was out of ignorance, not malace, I could call him right now and he’d not answer.
That’s how I see that phone call you could have made. I realize you, like me, are just programmed to say sure then provide. When a triangle gets formed though, just keep that in mind all the time. In my case, just routing them through Kev would have compimented him and maintained the hiarchy I wasn’t aware he was trying to boast. In your case, the producer would have realized there was no budget for her and would have wished you well on the gig.
It’s funny. We are in communications but lack of communication can still be an obsticle.
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Honestly, it doesn’t sound like you have any kind of formal agreement with your friend. She made a mistake by not having PBS sign something that prevents PBS from cherry picking you and anyone else she might work with. She’s trying to make up for it by having you sign a non-competion agreement. If her primary business is editing and you want to do more editing, I suggest you let her go unless she can, as you said, guarantee work. If her primary business is NOT editing, you are not competing and the non-competition agreement is a waste of time (a non-competition agreement will lay out specific work you may or may not do otherwise it’s a waste of time) and she is just upset that you got the business directly and she wants a cut. Since there is no agreement between you (either verbal or written), she can do nothing except have you sign an independent contractor deal – this will lay out pay structures, time frames, non-competition, exclusivity, etc., etc. or let you go your own way.
As a freelancer, I will not sign any form of non-competition agreement without adequate consideration. In other words, if you want to take away my ability to work, you will pay me for it. Think of yourself as a commodity – you only have so much time in which to do and be paid for the work you do so don’t sell yourself short.
Many years ago, a former employer had me sign a non-competition agreement as a part of employment which is pretty standard. I worked in the marketing dept. as a graphic designer. I left and did the same work as a freelancer a few years later. They tried to sue me by claiming I was competing. Their primary business was manufacturing and design was offered as an additional service. It never even got to court. Maybe the owners were upset with my leaving? I have no idea, but when my lawyer asked them to describe exactly how I was competing, they dropped the suit. Good for me cuz I couldn’t have afforded the legal fees.
Jonathan Ziegler
https://www.electrictiger.com/
520-360-8293 -
Being from Chicago, I guess I should also point out that there are other factors that may be at play. Sometimes, favors are traded, you can call it baksheesh, you can call it a referral, you can call it a finder’s fee, call it a commission, or call it buying a guy a lunch. Usually if working with some guy gains you another new paying contact, it is only neighborly to thank that person in some formal or informal way. The rental place where I used to cut my freelance work, long ago, would often give my name out as a referral to other people who needed camerawork. I noticed that, and so the place that referred me for the camera work was where I would bring all my editing business, such as it was in those meager days. My way of saying “thanks”.
Of course, this stuff is all a matter of degree, sometimes you do favors for people with no ulterior motive at all, just because you like them or you want to help them, and I don’t think it is formally written down anywhere. It’s just customary practice some places, more customary in others, maybe. I personally never expect it, plus it’s banned in all forms where I work, for good reason. Always of course, your conscience and ethics should have the final say on what is appropriate in these exchanges, and if you have specific policies, then that overrides all. If you feel bad or wierd about it, that’s a good sign something is not right. Probably in this guy’s situation, taking her out to lunch as an appreciation for the contact, and telling her about it right away, might have prevented things from going south quite so fast.
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Signing a “non-compete” agreement as a free-lancer is financial suicide. The only scenario I would consider is DURING the terms of employment with a specific producer NOT their client. Once the job is over your are on your own, too bad if the “client” hires you and not the producer, that is the business.
Malcolm
http://www.malcolmproductions.com -
Hi Mads, The more I think about it, the more I’m tending to disagree with her and you. She is preventing me from earning a living as a freelance editor. Freelance is just that.. without strings attached (to some extent).
I’d surely be willing to sign an agreement stating I would not seek employment from any of her past clients for a period of time (usually these contracts state a time frame – sometimes one year, sometimes two years) However if her PAST client calls me directly I should be allowed to say yes regardless.
I’d only agree with you if I received a steady flow of work from her with a set number of hours and livable wage.
Total time on the Doc. – over 370 hours, Thousands of clips to import, lower thirds, rewrites, graphics, titles, mixing, changes, etc…. total pay – no exaggeration (I’m an idiot, I know) – $3,800. My fault for accepting these terms, but not ever having worked on anything longer than 12 minutes (besides weddings) I truly didn’t know how much work was involved.
My producer (friend) left her contract with PBS over my house a few days ago, – Total payment they paid her – $7,500. She made $3,700 for maybe a total of 60 hours of supervising my drafts and approving lower thirds that the PBS producer made me do over in the long run.
I’d even be willing to sign a contract and give her a finders/agent fee for future PBS if they call me
She sure is taking care of herself and earning her living…. the more I think about it, the less I’m questioning it… I feel I’m right about this. BUT I still respect your opinion and thank you for posting! 🙂
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