Sell out? Or stick to my principals and lose my modest salary and benefits?
The below post appears in the "Corporate Video" section of COW. I was advised to repost here for potentially better feedback.
--My original "Corporate Video" post on Fri. Jan 7, 2011--
Ohhhh, boy. I think I just walked out on my salary and benefits today. I need some support and recommendations.
Today, I had to make the big choice you sometimes hear about: Stick to my principals, or "sell out" to keep my salary and benefits?
My employer asked me to sign a restrictive Invention Assignment Agreement (potentially sign away rights to my private work.)
I am a videographer/editor/producer for a large bicycle accessory retailer (actually, a similar type of industry.) I shoot and edit videos promoting the bicycle accessories that we sell, as well as event coverage, corporate interviews and the myriad media-related tasks given to the "in-house media guy." (My job description states: Videographer and Copywriter.)
Regardless, we were recently purchased by an even larger company within the industry.
I am now being asked to sign a very restrictive, very generic Invention Assignment Agreement. This agreement states that they own any invention (read: video/film/artwork/text) I create which "relates to the Company's current or contemplated business or activities;"
To me, this reads that if I create any movie/film related to bicycles and bicycling that they could claim ownership.
I am an avid bicyclist and bicycling fan, and I love getting paid to make videos about the products and events/people in the industry. Dream job, right?
How can they tell me that any bicycle-related movies I make, in my free time, with my own equipment, belong to them?
They have refused to modify the generic contract I am being given. I simply ask that they specify, in writing, that I may produce bicycle-related media as long as it does not conflict with my employer. Meaning, I will not produce videos promoting specific bicycling products, or bicycle accessory installation advice or how-to.
Otherwise, I should be free to produce any artwork or visul media without fear of them claiming ownership.
This is ridiculous. Ridiculous, and complicated. And scary.
I was told that they would not modify the agreement.
I was told that signing the agreement is a condition of my employment.
I was told that if I do not sign the agreement – I do not work here.
I was told to have the signed agreement turned in by the end of business, today.
I did not sign the agreement.
I just walked away from my salary and benefits on a matter of artistic principle, and I am freaking out.
I just lost my job. I think.
I am NOT signing that agreement without modifications.
They would have to pay me a LOT more to lock me down artistically like this. It's a matter of principle. The principle of a starving artist?
Is this type of agreement common for other corporate videographers?
I'm not hearing the sell out part. If they would have offered you a bonus or a bigger salary to sign away freedoms that's one thing but that aint the case. You did the right thing. Walk. Ride. Enjoy your freedom to create.
"Stick it to my principals" or "Sell out" is the wrong way to look at it. Such polarized thinking is what causes religious and race wars at the extreme.
In any case, they're asking for too much that conflicts with your personal life and you made the right choice in my opinion. Good job.
HOWEVER! Don't just walk out. Don't quit. I would return to work on monday, as if nothing had happened. If asked, "Why did you leave, I'd say sorry, I was upset by the stress of the corporate merger, but here I am." If you turned in a formal resignation sheet, talk with your local boss about "losing" that piece of paper. Wait until they ask you to leave; even if it is right away.
If you quit/resign, you won't be able to access unemployment benefits. While I'm not one to promote living off everyone else; for hard workers between jobs it's certainly a benefit.
There are other benefits as well. They may "overlook" that you didn't actually sign the contract and forget about it, and still pay you. Just keep working. If someone comes with a contract, take it and say "I'll get right on it" and let them go away. If they want you to sign it right there, say you need to review the contract and get back to them, then never do. If they want to wait while you read it, take a really long time, say what you aren't comfortable with. I would avoid actually saying no to it, I'd say I need to think about the drastic conditions in here. Basically delay and stall, as long as they continue to pay you.
I've lost a consulting job this way. I thought they didn't want me around after the board replaced the principals and took over the company, so I stopped showing up. However I bet had I just continued to show up they'd still have me on.
Make them ask you to leave. Meanwhile look for another job. This is not about sticking it to them. This is about not letting them take advantage of you while you maintain yourself and your family. The two concepts are fundamentally different.
For future employers, the situation will probably be the same whether you quit or are fired, because you can describe what actually happened. What is important is that you maintain a positive relationship with your immediate supervisor so he or she can continue to be a reference for you. (See point 1:polarization)
Really the first point is so critical. Even though it's only a few words on an internet post; those who use them most likely have the same polarized thoughts throughout all aspects of their life.
The larger the company you do work for, the more likely you are to face this situation.
And yep, it puts you in a tough position.
I've seen more (and more restrictive) Master Agreements and Scope of Work documents from my clients in the past few years than ever before. I suspect that's because they are all growing and the legal departments are getting ever larger.
You want to feed off the big organizations, expect their legal departments to set the terms.
That's how it works.
By and large, I think Cory expresses a good way to proceed.
Keep doing your job and put them in the position to have to make the move to fire you. They may not.
If they try to coerce you to sign on the same day, the contract itself may be questionable legally. Can one sign a contract under duress and an immediate threat? "Sign this or get fired today" basically eliminating your right to have the contract legally reviewed sounds "unreasonable." Of course that wouldn't be a fun legal battle to pursue. Sometimes winning is still losing.
I think a reasonable response to coercion is that given this is a legal contract with significant ramifications you need to time to have your lawyer review it. For a simple contract review (as I suspect this would be) it shouldn't be too expensive to find a lawyer with both state labor and contract experience.
"relates to the Company's current or contemplated business or activities;"
I am suspicious about the term in bold. Proving contemplation is slippery. You make a targeted bike documentary that becomes modestly successful like "Dogtown and Z-Boys" did for skateboarding and they can claim they "contemplated" it?
Also look at the longevity of the contract. If it's just for the duration of your employment you might survive it as long as you get out of there when you're ready. If extends some years past your employment that's a serious concern.
Keep working. Talk to a lawyer. My guess it shouldn't cost more than a couple/few hundred dollars and and you're be able to make a clearer life decision.
IANAL but I've talked to them and you should consider that as well.
Without Prejudice and without knowing the finer details:
I would agree with most comments here: don't give up the day job. In short, it is what we in the UK call "Constructive Dismissal" - depending on how many years you've worked for the company, it can get very expensive.
You might even have a claim against the previous owner - i.e. once you lawyer threatens to sue both parties, its gets messy and tend to bring people to the table for a suitable settlement. At which point you are likely to find that it is a overzealous HR person who is trying to get you to sign the contract, where as that both senior management and the legal department will be happy to "talk" to fix this situation - no new owner of a business are interested in bad publicity from one of there most avid fans :-)
Maybe even appeal to the group CEO before going full out legal - again, if that person doesn't know about this and if you explain that you've no interest in competing or generating competing products and that this is a passion more than a job for you, they might just decide to come to an arrangement that suit both parties.
All the Best
Please do visit our faceBook page here: http://www.facebook.com/MacMillionProductions
Mac Million Ltd. - Digital Media Production
I'm not going to go as far as to reverse my earlier post on the Corporate Video COW (where this thread began). But I do admit that perhaps I misread or over-interpreted Michael's original post. I was under the impression that the resignation had already happened. If it has not, and a state of limbo still exists, then by all means he should look for middle ground, keep attempting to negotiate or, as was suggested directly by Cory and indirectly by Craig, STALL. Force them to make the moves. Just be sure that while this is going on you are doing your job and never giving them any excuse for claiming under-performance.
As to contacting a lawyer, while that's probably a good idea, Michael may find out what he needs to know by contacting the labor board in his respective state government. I'm not a lawyer -- and I don't play one on TV -- but I seem to recall that signing a non-compete requires some form of "consideration" and that an employer can't go to an existing employee and ask you to agree to something new like this without giving you something in exchange for doing so. At least that's the way it was in my state. Which brings up the points offered by the boys from the other side of the pond…
Employment law in the US is substantially looser than it is in the UK and especially more favorable to the employer than it is in most of Western Europe. There are many states here where employment is entirely at the will of the employer, ie.- they can release any employee, anytime they so desire without any cause whatsoever. Not to say that litigation for wrongful dismissal can't be brought under truly extreme circumstances, but these kind of lawsuits are very expensive and can last years. This pro-business (at the potential detriment to the employee) attitude is one of the reasons it's considered simpler and less expensive to start a new business here than it is in Europe. Not saying it's right or wrong, just how it is.
I'd have a really honest conversation with myself if I were you. Can you pay the bills with personal videos you'd be making regardless of if you had a full time job? If you sign the contract and continue to make the videos - does it really matter if your company could theoretically claim ownership of it? Unless you say disparaging things about your employer or their products, it's highly unlikely that would ever, ever happen.
My 2 cents...
A contracting party cannot impose additional conditions after contract has been agreed without the agreement of the other party.
That's why they want you to sign.
Does that not apply to employment contracts where you work?
So if they sack you, what unfair dismissal legislation can you rely on in your jurisdiction? Here in the UK, a case like this would almost certainly end in a tribunal finding in your favour as unfairly dismissed if the reason for dismisall were failure to sign agreement to new conditions, and would be looking to the employer to pay you compensation. The employer's lawyers would probably promote an early offer to you to settle, if they thought you had legal advice or would fight. I don't know how that goes in the USA, but I guess not or you wouldn't have posted like this ..
[Michael Mahoney Jr.] "How can they tell me that any bicycle-related movies I make, in my free time, with my own equipment, belong to them?"
How much money do you earn in your free time making these videos?
I'm not asking you to actually answer the question here, I'm asking you to evaluate the value of what you might be giving up. When making big life decisions like this you should take the time to lay out the pro's and the con's.
Hypothetically, let's say you make 40k at your current job and supplement that with another 2k from videos made on your own time. Given that the company is unwavering you're going to end up leaving something on the table. Do you walk away with your principles in tact and leave +38k on the table?
If the money you make during your off time is fairly significant you might consider having a go of it on your own by building up a business. Do you have other potential clients outside the niche of the bicycling community? You'll need a decent client base to get off to a good start. What is the state of job market like in your area? Again, these are questions you should be asking yourself.
Maybe I'm reading your post wrong, but it sounds as if you made an emotional decision. You were upset because they are overreaching their control. Business is business. There's no place for emotions in business decision making. If possible try to evaluate your situation without letting emotions factor into the process.
I have to agree with John Davidson on this. What chance do you think there is of a company monitoring your outside work and activities? Unless you produce something that becomes wildly successful and well-known, there is little chance that:
1. They'd ever even know what you're doing on your own time.
2. They'd feel threatened enough to do anything about it.
My advice? Sign it and keep doing what you're doing. If your videos truly don't conflict with your employer's products, then the chance of anyone getting upset or taking any legal action is incredibly small.
This isn't a matter of a company trying to take away your artistic freedom, it's a matter of a company trying to protect what they perceive as proprietary technology or products. Stay away from doing outside work that touches those things and everybody will be happy.
Magnetic Image, Inc.
Read our blog http://www.videomi.com/blog
Amend the contract (in pen) sign it, hand it in, if they don't accept it let them fire you, then you have a legal case. Don't just walk, if you quit you have no legal standing. A friend of mine had the same deal years ago when his music recording company was bought, he was an engineer and did recording on is own time and in his own studio, the contract he signed was a very unfair blanket agreement which would enable his employer to "own" all his work, even if it was done at home on his own gear, you are getting the same crap deal.
Attorneys are assholes when it comes to dealing with creative people, they don't get it and they don't care. They know most creative people will easily cave and sign any agreement put in front of them and will give up. So what to do? Do you really want to work for a company that is going to screw you? I would not.
My friend did not sign the agreement and it took them two years to finally "fire" him, business slumped, it had nothing to do with the contract.
You have every right to "negotiate" any contract, if the other party has a take it or leave it attitude, walk, that means they are screwing you, dont' care about screwing you and if you roll over easily, will screw you in the future about something else, like reducing your salary and benefits because the new owners kid wants to go to filmschool or he needs a new corporate jet, or they just want 350 times the average salary in the company, not just the 250 times they are now getting.... dosen't really matter what the reason is, does it?
Wow, I really appreciate all of the feedback I am receiving. Thank you so much, and please, keep it up. This issue is kindof a big deal.
I'd type a novel if I had the time, but let me shorten my thoughts into some specific points that address things you folks have mentioned.
1: This is an ugly and complicated issue. But there isn't any silly back story or any bad blood between myself and anyone in the company. It's just an issue of a new, much larger owner being unwilling to make a very reasonable, very minor modification their generic agreement.
2: I did not resign, and they did not fire me. A required form was not turned in on time – that is all. I will be at work on Monday, ready for a resolution. But I am NOT signing that form without modifications.
3. Competition: I have no interest in working for any competitor, or competing with my employer in any way. I simply want to create content in my free time, without fear of them claiming ownership.
4. Salary: They can't hold my salary over my head. We live a very simple, very frugal life. Except for finding cheaper living arrangements – losing my salary won't impact our lives very much. Grinner mentions that typically someone receives a bump in salary, a bonus, or some other form of compensation (a Consideration) for signing away rights like this. So far this has not been the case. I am in the middle of a huge project for the new ownership, and they want to renegotiating the terms of my employment for some reason. They took 5 vacation days from me, want me to sign away my rights to my work – and they refuse to have a salary discussion.
They need me more than I need them. I will walk.
5. Consideration: Nick, that's what you receive in return for signing a contract, a "Consideration." Unfortunately, and as Nick mentioned, in the US, most employment is an "at will" status. So they can actually fire me for any reason, any time they feel like it. And they CAN bring me a new agreement to sign – and my Consideration for signing (what I get in return) is to keep my job. Horrible, but true.
6. Polarized Thinking: Cory, I largely agree with what you have typed. Unfortunately, you sandwiched it between a couple of strong opinions about the way I think. But let's put that aside – it's obvious there is a lot of emotion connected to this issue for me, and that emotion probably came through in my post.
Yes, I may be slightly polarized in my thinking. However – I did not draw the line in the sand. They did. It's like this.
Them: "Wow, we're really happy with what you're doing, so we're going to give you some huge projects to work on. As a matter of fact, we're so happy with you, we'd like to put the brakes on that huge project and renegotiate the terms of your employment. How's about we take away 5 vacation days, double your health insurance costs and have creative control over anything you make? Oh, and we refuse to address the salary that's been unchanged for four years (even though your job has expanded ten-fold since then.)
They drew the line in the sand (and created the polarization) and are trying to make me step over it. I refuse.
7. Mads Jorgensen: You make a valid point. The executives for the company are in a completely different State from us, and they may not fully appreciate, or even have knowledge of the messy situation that local management and HR have caused.
Being that we are a huge publicly traded company – the Legal Dept and the Head of Human Resources are both going to be looking for that very important form – and they're going to want to know why it isn't turned in. Hopefully, when the actual decision makers realize my artistic intentions, we can make a simple change to the agreement and move on with our lives.
8: Chris and John: I will not sign this legal document knowing full well that I intend to break it. Or just go blindly along thinking "they won't touch my stuff. They don't care."
How can you guys think like this? Don't you understand what is going on here?
It doesn't matter if what I create is "worth" anything – it is mine.
When I shoot a documentary this spring about rebuilding my bicycle for a long road trip – this agreement states that they could own my documentary if they wanted to. This is unreasonable and I CANNOT agree to it.
Here's a hypothetical example that might be easier for people to understand:
- Say I work for Guitar Center as a photographer, and I get paid to take photos of guitars for their catalog and/or website.
- The Invention Assignment Agreement reads that any photos I take or media I create that "relate to the company's current or contemplated business" belong to them.
- What is the current or contemplated business of Guitar Center? Too vague. That could include anything related music – live music, recording, instruments and accessories, rock and roll, music education, etc.
- Any photos I take of guitars now belong to them. Any photos I take of my personal guitars now belong to them. I shoot photos of my friend's band – those shots belong to the company.
That cool vintage guitar blog I was running – damn, that now belongs to them too.
It doesn't matter if what I create is "worth" anything – it is mine.
Again, unless I am competing with them in any way, like having my documentary sponsored by a competitor – or feature/promote/sell in any way bicycle products, I should be free to create whatever I want related to bicycles and cycling.
Verbally, they assure me that I am free to do what I please. But they refuse to put it in writing.
I appreciate everyone's feedback, and your words. Keep 'em coming. I'll go into work on Monday with the intention of resolving this issue. I have not quit, and they have not fired me. Let's sit, wait, and see what happens. I'll keep you posted.
Please, continue to discuss. This issue won't be over for some time, and I'll keep updating the thread.
[Michael Mahoney Jr.] "they CAN bring me a new agreement to sign – and my Consideration for signing (what I get in return) is to keep my job."
I'm not sure that is true. At least it wasn't a few years back when my wife was going through agreeing to a non-compete contract that her company wanted her to sign more than a year after she had been working for them. Consideration isn't not taking something away.
Michael, your situation also reminds me about something I went through 8 years ago with one of the world's largest chemical companies. (Trust me, you'd recognize the name.) After two very successful meetings which established that we were extremely qualified to handle projects for one of their divisions, they provided their standard vendor agreement and I showed them my rates. They we SHOCKED that we wanted twice as much per hour as other vendors doing similar work. I pointed out that we could do with two or three people what the other guys were doing with ten people, each being paid at their approved rate ceiling. They, being one of the world's largest corporations, couldn't do the math of 2 times 2X is less than 10 times 1x, and insisted that we agree to their rate. The guy who brought me in even pulled me aside and whispered, "Use their rate and just tell them that everything took twice as long."
This then came down to a moral decision for me. Our timesheet system is the basis on how we charge most of our clients. How could I deliberately game the system for one client? It's kind of like the best reason to be honest with everyone -- those who tell the truth have so much less to remember than those with a different lie for each situation. Combine that with the fact that their contract said that they could pop into our business at any time, without advance notice, to audit our business records and I said, "Screw it. Honesty is the best policy" and turned down their business.
So I can relate to you not wanting to sign an agreement that you intend to ignore. So do what was discussed earlier and stall until you have to sign and then turn in the agreement with the objectionable clause stricken or amended to say something to the effect of "work created during standard business hours." Then you can have the fight, if necessary.
I still think that finding a way to do the work as a freelance outsider might be the best way to go, but then I've been self employed since I was 25.
Just in case you didn't read the notice at the top of this forum, everything on the net, including the COW, IS indexed by the search engines and any HR rep clever enough to Google "Michael Mahoney Jr." will find this thread at position #6 (or higher). Another good reason to make honesty the best policy.
"Michael Mahoney Jr wrote: Chris and John: I will not sign this legal document knowing full well that I intend to break it. Or just go blindly along thinking "they won't touch my stuff. They don't care."
How can you guys think like this? Don't you understand what is going on here?"
I think we do. What is going on is a company trying to protect it's proprietary products and/or brand. Companies do it every day. Non-compete contracts are required by many companies as a condition of employment.
I can't speak for John, but what I'm saying is if your videos and creative work truly don't compete with their products nor do they do them any harm, there is virtually no chance they will percieve that you've violated that contract. Further...they likely don't have the time or inclination to police such activities. It's just a way for a company to protect it's interests and insure that employees don't take the company's products, techniques and technology and use them for their own gain.
So what I'm saying is if what you do on your own time truly doesn't harm or compete with your employer, then sign the agreement and do your other projects under the understanding that you're NOT competing with or harming your employer in any way. That's not deceptive, that's not morally wrong. Since their contract language is incredibly vague, you can in good conscience move forward under the understanding that what you're doing doesn't violate that contract. End of story.
Bottom line...nothing will ever come of this agreement if you sign it and in my experience, you're making a much bigger deal about it than it deserves. This isn't a record company taking your music and compositions and selling them as their own, it's a company looking out for the products, reputation and good will it's built for itself over time. You'd do the same to protect yourself if the shoe was on the other foot.
Magnetic Image, Inc.
Read our blog http://www.videomi.com/blog
[Chris Blair] "Bottom line...nothing will ever come of this agreement if you sign it and in my experience, you're making a much bigger deal about it than it deserves."
I agree with Chris. This contract is not really about you and your video activity. The company is rightly concerned that employees with knowledge and expertise related to the core business of the company will take that information somewhere else.
Two things jump out at me here.
1st: No one here, myself included is an Attorney licensed to practice
in your state, so all their advice is worthless.
Before you walk out on your salary and benefits
the proper thing to do is to consult with one.
You say "Potentially sign away rights" so it is clear to me that
you yourself are not sure what this agreement means.
Get a good attorney to clarify this for you.
You also used the word "WE" so I assume you have a family
and risk losing yours and their benefits, I assume you mean
Medical Insurance, better get a reality check on what that costs
to buy on your own. If you have a wife and two kids get ready to spend between 12,000.00 and 16,000.00
2nd: In todays job market never ever believe that you are worth
more to them then they are to you. They can replace you in a heartbeat, I doubt you can find another position with benefits
I gotta say I think it is reprehensible for some here to say walk
without getting real legal advice (some have, Kudos to them)
They are not in your shoes and will not suffer any consequences
so it's real easy for them to pontificate and take the high ground
but you would be surprised at how fast their thinking would change
if it was their livelihood on the block
As my mom never misses a chance to point out, I never became a lawyer.
That said, the worst-case version of this form sounds like most judges would throw it out as too broad to be enforced.
Try signing it, but lining-out and initialing the objectionable parts aboutmyour off-hours work. If nothing else, it runs the clock out a little longer on the play.
I refer you as well to my longer answer on the Corporate Video version of this thread. Understand the underlying needs they have, and work to find a win-win that suits you both.
Well, it's done. I was let go about two weeks ago for budget reasons.
Nearly a year after I signed away my dignity to keep my job, they took it all away.
I felt like such a loser after signing that form. A corporate nobody. A sell out. A compromised man.
And for what? When the share-holders asked about the inflated Marketing budget, the video department was the first item eliminated from the spreadsheet.
The CEO just got approved for a 300K bonus, but they'll save 35K on Marketing by kicking their video producer to the curb.
So, I'm officially unemployed.
Thanks for all of the support from the COW community. I am trying to go freelance now (supplemented w/ a part-time job anywhere...)
Here's a link to one of my favorite creations, this style of event coverage is really what I love to do. It is incomplete because of various corporate issues:
Anybody in the Cleveland, Ohio area need help with anything? Send any jobs my way, even internships - I need to get my face out there.
[Michael Mahoney Jr.] "Anybody in the Cleveland, Ohio area need help with anything? Send any jobs my way, even internships - I need to get my face out there."
How do we get in touch with you? I have a freelance lead for you.
Bob C bob "at" r c o l e "dot" c o m
Bob! Thanks for the speedy reply, and thank you VERY MUCH for asking for my contact information - I should have included it in my post.