What to do if I’m a non-1099 independent photographer with an agreement with a company that has a non-compete stipulation for 1 year with no boundaries?

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What to do if I’m a non-1099 independent photographer with an agreement with a company that has a non-compete stipulation for 1 year with no boundaries?

The non-compete states, “the MA covenants not to disclose any technical information on our process or the mechanics of the Distributors photo taking. The MA also covenants not to compete with the Distributor for a period of one (1) year, in 360-degree panoramic imaging, from the date of the termination of this Agreement for any reason”. Since I am not an employee, since there is no geographic boundary for this non-compete and the company has no control over my business, is the non-compete even valid?

Asked on April 24, 2012 under Employment Labor Law, Ohio

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Non-competition agreements are legal and enforceable against independent contractors, vendors, suppliers, and freelancers as well as against employees.

A non-competition agreement does not necessarily need to have a geographic boundary, especially since in today's world, many businesses and markets have ill-defined geographic boundaries. The agreement you describe would most likely be interpreted by a court to mean you cannot *compete* with this company--i.e. you could not market your services in or to the same markets that this company does. For example, if as a practical matter, its clients and its marketing efforts are restricted to New England, you could not market these services in New England; if the company markets its services to realtors, real estate developers, architects, and the like, you could not market to those industries, but could market to, for example, advertising agencies. And, of course, you could offer services other than 360-degree panoramic imaging. A court would most likely look at what the company does, and to whom it offers those services, and enforce the non-competition in light of that.


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