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Real Estate Photographers Should Be Very Careful about Signing Non-Compete Agreements

Published: 20/07/2017
By: larry

Just a few weeks ago, a beginning real estate photographer told me he planned to work for a local company to learn the business and get some training.

On the surface, this seems to make perfect sense. The part that most people don't seem to understand is that real estate photography companies hiring photographers are very sensitive about the photographer quitting and becoming a competitor. So most will want you to sign an agreement where you agree that you won't compete with them (a non-compete agreement) in the future.

It turns out non-compete agreements are a huge problem for workers all over the world. A recent article in the New York Times says:

A recent survey showed that one in five American workers is bound by a non-compete clause. They cover workers up and down the economic spectrum, from executives to hairdressers. Despite their widespread use, these agreements often catch departing workers off guard because they are rarely highlighted during interviews and are usually tucked inside employment contracts that are full of impenetrable legalese few people can understand.

Laws in some states, like California, make non-compete agreements effectively unenforceable while other states like Idaho make it easy for companies to enforce non-compete agreements.

So, if you are going to work for another company:

  1. Understand how the laws in your state or country deal with non-compete agreements.
  2. When and if you sign an employment agreement, read it carefully and understand how it relates to your future plans.

Better yet, build your own company and work for yourself so you have complete flexibility. It really isn't as hard as you might think!

11 comments on “Real Estate Photographers Should Be Very Careful about Signing Non-Compete Agreements”

  1. I have a thought.... why doesn't the newbie take the time and effort to learn the trade on their own by going to seminars, training workshops, etc., instead of using someone else's hard earned experience and knowledge knowing that they are going to become the competition? Can anyone tell me what is ethical about that?

    You want to take the easy route, then pay the price...

  2. I am not quite in line with Jerry but almost. Photography has a long tradition of young entry level photographers working for established photographers to learn the business even after graduating from art or photography schools. In the commercial world of advertising, working as an assistant for the best photographer you can find is almost mandatory.

    Learning photography is one thing; learning how the business of photography is conducted, it's practices, accounting, client management and sales practices, photo shoot agreements and PO's, what equipment is needed and how to use it, billing and all the sundry busieness things you have to over lay on top of the actual photography is vital to running your photography as a business.

    But in my time, photographers all needed one or more assistants and just knew that a few of them would pick up small jobs from their clients, generally jobs that the main photographer would turn down as too small to be profitable. But we never were obliged to sign non compete agreements. So I feel sorry for those trying to enter the market if companies that are in the business are requiring their hires to do so. But it also sounds as if this entering photographer is wanting to join a "Photo Mill", mass photography company to churn out fast and dirty images at a low price and hires inexperienced photographers to do the work. That is a tough maket to try to enter. And the business model is hard to maintain as a single free lancer.

    So I would agree with Jerry that in this case, the photographer would be better off taking every online course, seminar, workshop he/she can find and shoot friend's houses to learn the craft, keep their day job, start out shooting whatever houses they can and be upfront about their level of experience and slowly build their business if they have no choice but to sign a non compete agreement.

  3. I don't have much sympathy for the companies in this situation myself. Why not make the photographers want to stay by treating/paying them better? It just seems to me like noncompete contracts are just a way to get away with paying people nothing, then not having it bite you in the ass too. If an employee had benefits and was paid well I would find a non compete much more palatable.

  4. Good points noted by each, however, there is also a downside to the photo mills where they may actually teach you bad habits. The would on quantity, quantity, quantity to turn out the most you can to generate enough survival income after their cut where the focus of a student is to learn quality, and unbeknownst to them, custom service to maintain, service, and expand the business as they go solo. Just because you have a bunch of jobs that you shoot to their prescribed standard, then ship them off for them to do their post isn't a learning strategy.

    One way to learn is to shoot model homes (not their photographer) which are nicely staged, upscale, and give you material to develop your business on.

    Finally, In some States, a non-compete agreement may not be worth the paper that it is written on and is used as an intimidation tactic. Generally, if it bars you from making a living in your home area courts may limit it's enforceability. That of course varies with each State/locality, but something to be aware of and could be expensive to "win."

  5. I don't think working for a "virtual tour" company is a good way to learn either photographic or business skills and I think that opportunities to apprentice with established real estate photographers are very rare. Assuming you don't already have business and sales experience, my suggestion is to find a commissioned outside sales job that will give you training in sales and negotiating, do that for a few years, work on your photographic skills on the side at your own pace while doing that, and then start your own real estate photography business.

  6. Know what your signing. there is a difference between a work for hire and a non-Compete. If their is a non-Compete clause, treat it as if it will cost you alot of time and money to get out of the it. Say you turn out to be the top producer and the best photographer for that company do you really think they will let you go without a fight.

  7. None compete clauses often tend to be used by companies that are insecure in their own position. That may be because their customer service/quality is poor, the pay is poor/illegally low, the treatment of staff/contractors is poor, a general sense that they don't add anything of value to the supply chain. Instead of trying to resolve these issues, they try to hide behind legal clauses which, as others have pointed out, are often (although not always) unenforceable.

    Problems can then arise for a photographer if you turn out to be very good at what you do. The problem with being a top producer in such companies is that you may well be treated badly by the management. I have seen companies like this that deliberately bully good people to try and get them to leave the industry, because being better showed the gaps in their own operation. They (the company) are annoying both their customer and their supplier at the same time, even though in actual fact, individual suppliers within that ecosystem may be doing a very good job (and the client knows this). When a company perceives the people who work for/through it as a threat, you know they have serious issues.

    It is unfortunate really that they cannot look inwards, see what they are actually doing wrong and resolve it, but there we go.....

  8. Lots of great advice. I would only add that, in the large view, non-competes will probably grow in use. Why not, the company only has to pay a lawyer once (to draw it up) and use it forever with every employee. If the company is paying you dogsh*t, why even start with them at all? Especially if a non-compete is required. I think you would have to be starving to accept that position.

  9. Here's a thought: Build yourself a nice website (you can even have someone else build one. Go to freelancer.com. I bet you could get a nice one built for $100-$200) then approach one of the run-n-gun (or all of them even.) in your area and tell them you can offer your services. Your services could be any that they do not offer. What could that be? Well, run-n-gun operations are cheap and low quality. You could convince them to offer their clients an Upscale photo shoot and use you. Yes, they will make some money off you BUT they are selling you and you can negotiate a good pay rate. Lovin it!!

  10. I had some more thoughts on this topic. Working for a big photo mill operation as a way to start off isn't a great step up. The non-compete aspect is problematic, but your are also going to be thrown into the jobs with no training and since you won't be post processing the images, which you have signed away the rights to, you may not be getting any experience there either. You get assigned a job, shoot brackets, upload the images and hope they send your check in a reasonable amount of time. I had one company tell me on the phone that they pay within two weeks, but the contract stated up to 90 days and they would not change the contract. Obviously, I told them no (and didn't even say "thanks".

    To date, I have not seen a photographer sub-contractor contract that is fair to the photographer. The non-compete clause is a biggy and should be looked for but there are also indemnity clauses that put you on the hook, payment terms that might be very long, no guarantee of being assigned any work at all or exclusive territory. At the same time, you are required to have and maintain equipment on their approved list, carry liability insurance that protects them, sign an open ended background check release and submit to random drug testing that requires you to provide a "sample" within a few hours of being notified. Some other terms may require that you upload photos within a short period of time after completing the shoot. While usually not a problem, it might mean that to stay within the contract, you won't be able to stop off of on the way home to get a bite to eat or run a couple of errands. When I do time sensitive work for Reuters, they want images within about 45 minutes, but it's not a contract term so there is some flexibility if there isn't a good way to submit the photos right from the location. The flip side is that they pay a decent rate and don't muck about in getting the payment sent off.

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