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Freelance Editing + non competition agreement

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lisa sermanFreelance Editing + non competition agreement
by on Feb 15, 2011 at 4:04:24 am

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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Cory PetkovsekRe: Freelance Editing + non competition agreement
by on Feb 15, 2011 at 4:45:20 am

1) This is always a challenge when working with friends.

2) In some states, like california, non-compete agreements are unenforcable. http://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

--
Cory Petkovsek
Corporate Video


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Scott SheriffRe: Freelance Editing + non competition agreement
by on Feb 15, 2011 at 5:29:52 am

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
http://www.sstdigitalmedia.com

I 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...


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Mike SmithRe: Freelance Editing + non competition agreement
by on Feb 15, 2011 at 9:17:13 am

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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Mads Nybo JørgensenRe: Freelance Editing + non competition agreement
by on Feb 15, 2011 at 10:26:01 am

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, UK

Please do visit our faceBook page here: http://www.facebook.com/MacMillionProductions

Mac Million Ltd. - Digital Media Production
Blog: http://macmillionltd.blogspot.com


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Mark SuszkoRe: Freelance Editing + non competition agreement
by on Feb 15, 2011 at 3:39:32 pm

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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lisa sermanRe: Freelance Editing + non competition agreement
by on Feb 15, 2011 at 8:20:44 pm

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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Mads Nybo JørgensenRe: Freelance Editing + non competition agreement
by on Feb 15, 2011 at 9:23:16 pm

Lisa, oh dear, you did not just go and disclose one your clients confidential contracts to the public? You are past the 6 feet, if you dig any deeper you'll hit lava.

Serious joke aside; There has been quite a few comments about freelancers making a living etc. But none what-so-ever covering the fact that you did not get off your own butt to win that new client. In fact, it seems like some people are conveniently, to suit their own needs, forgetting the cost of marketing, networking, winning and keeping a client.

I won't comment on yours or your original clients rates. But with all due respect, $62/hour is not a lot of money when you take negotiations, insurance and all the other stuff that goes with being a producer. So congratulations, you screwed over your own client, you offered to do the job cheaper (with kit I presume?) than anyone else would, and by so, you screwed yourself over.

In my opinion: your client is better without you and PBS, if that is what they are paying her and if they then screw her afterwards. In my opinion, PBS should have "chat" with their in-house person about ethical behaviour.

Anyway, enough of my rant. Do the decent thing and give your client a payment of 10% - that only seems fair, and you seem to be up for doing that. So good on you.

For the rest of the "yeah" sayers in this thread, lets see if there amongst the readers here are any producer, production company or facility here, who would employ a freelance or full/part-time person, whom has been known to previously steel clients from their own current clients/employers before asking you for a job?
A "Yes" or a "No" vote in the subject line will suffice.

My 5p just became 2p...

All the Best
Mads
London, UK

Please do visit our faceBook page here: http://www.facebook.com/MacMillionProductions

Mac Million Ltd. - Digital Media Production
Blog: http://macmillionltd.blogspot.com


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lisa sermanRe: Freelance Editing + non competition agreement
by on Feb 15, 2011 at 10:07:06 pm

Hi Mads, I stated in a previous post (which i know it's confusing on here sometimes to sort out the posts)... My producer left her contract at my house accidentally in a notebook. But yes, I saw it. My producer does not know I am aware of what she made on the piece.


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Scott SheriffRe: Freelance Editing + non competition agreement
by on Feb 15, 2011 at 11:12:51 pm

"My producer left her contract at my house accidentally in a notebook."

Smooth move Ex-Lax.
Why would she have not had this filed away in her office where it belonged?
Is this just not another example of why this person isn't being hired back. If she is this careless with her business...

Scott Sheriff
Director
http://www.sstdigitalmedia.com

I 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...


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lisa sermanRe: Freelance Editing + non competition agreement
by on Feb 16, 2011 at 12:06:04 am

Because production notes were written all over. I don't think she meant for me to see it. And I really have no reason to lie on a forum of all places. We all need guidance once in a while, and maybe sometimes we need a little affirmation (this is normal). But after 24 hours of playing the situation over and over in my head, I still feel like I'm not doing anything wrong by accepting the job. Wasn't sure at first, that's why I posted. Wanted to simply get opinions.


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Scott SheriffRe: Freelance Editing + non competition agreement
by on Feb 15, 2011 at 10:19:33 pm

"Serious joke aside; There has been quite a few comments about freelancers making a living etc. But none what-so-ever covering the fact that you did not get off your own butt to win that new client. In fact, it seems like some people are conveniently, to suit their own needs, forgetting the cost of marketing, networking, winning and keeping a client."

Thinks must work different over in the UK.
The "get off your butt" part was that Lisa had a learned, marketable skill (editing), and the producer did not. Welcome to the world of using sub-contractors. Want to avoid it? Then learn to do what they do, as well as they do it.

So did you not see the part where she did the editing (on job #1), and the client realized who was doing the work and wised up and stopped using the useless go-between who did nothing for the next job (#2)?
The only way the producer would be entitled to anything is if she had a contract with Lisa as her agent, which she wasn't. And then agents usually get 10%, not 50%.

What if PBS decided to stay in house with the next job? Is that stealing too? Shouldn't that job belong to the producer? Where is that line drawn?
What if they like Lisa so much they offered her a job? is the producer magical entitled to a cut of her salary because she introduced them?

So when you rent gear, and a new place opens up with better rates and customer service, how long are you obligated to keep using the former rental house? A month? A year? Forever?

Or how about the local market? Are you saying once you shop somewhere there is some type of 'implied' contract, and you can only shop there?
Or do these rules only apply in the world of media?

Stealing implies ownership, and you don't 'own' the client. It is a relationship, not a possession.
If your rates and service are good, your assistant, another editor, or some bloke in Sussex can't 'steal' your clients. When I hear someone use that term, what I really hear is "I'm over-priced, and under-delivering, and got found out".
The answer is to start delivering a better value, not whinge about someone stealing your customers. That is what the producer should do. She could neither edit, or produce effectively. Why should she get paid at all? Who is actually doing the stealing here?

Scott Sheriff
Director
http://www.sstdigitalmedia.com

I 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...


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lisa sermanRe: Freelance Editing + non competition agreement
by on Feb 15, 2011 at 10:43:21 pm

Yes, but I've gotten off my "butt" plenty of times and have gotten jobs. Remember..... these people called me. They do not want to deal with a middleman (for the reasons I mentioned in my original post if you kindly read)


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Mike SmithRe: Freelance Editing + non competition agreement
by on Feb 15, 2011 at 11:22:06 pm

I don't think things work that differently over here in the UK. Mads seems a little over-upset over this one: maybe it hits near home fior him. But it's good for all of us to remember that potential customers can search these forums, and how we seem on here is a matter of record.


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lisa sermanRe: Freelance Editing + non competition agreement
by on Feb 16, 2011 at 12:11:23 am

True!!! And I really don't mind the differing of opinions... stings a little, (especially when I feel so right ...lol) but I love the discussion.


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Mads Nybo JørgensenRe: Freelance Editing + non competition agreement
by on Feb 15, 2011 at 11:26:43 pm

Hey Scott,

I noticed that you didn't vote..?

So far we have only got Lisa's story, so everything else is pure speculation.

But here is an opinion:

I do freelance from time to time and I do understand the concept of desperate and hard times. I've never said that anyone owns any client, I've merely pointed out the ethical way of how one should be doing business with ones current clients. And according to Lisa, she did not fire her client before accepting her client's client. She didn't even discuss it - that shows intent. But it is true to say that her "old friend" has got no legal claim on the client.

But Scott, as a professional freelancer: Would you ever work the same hours at the same rate that Lisa (and her producer) did? Because that is what has become central to this whole discussion.

Lisa feels that her actions is OK, because in effect Lisa did not ask for proper money in the first place. Question is whether Lisa had ever worked for PBS before? We know that is a no.

And whether without her friend's help, we don't know if she would ever had had the chance to work for PBS or how long it would have taken her to get through that door?

What we do know is that Lisa is not a loyal freelancer, and to support her claim she is quite happy to go through other peoples private notes, including publishing them - whether the producer forgot them, is not an excuse to do such a bad thing - because in the end as I understand it, Lisa did get paid the rate she agreed to do the job for.

If not or if the hours was out or what-ever, Lisa could have re-negotiated for a better rate or walked away - but she didn't. So no, Lisa has only got herself to blame. And two wrongs, certainly don't make a right.

Before offering the same low rates to PBS I think that Lisa should read the http://magazine.creativecow.net/article/clients-or-grinders-understanding-t... article. Because there will always be a hungry freelancer around the corner ready to take her slot.


Anyway, I'll get off my high horse now. However, what I do find interesting about this, is the discussion of ethics and ethical behaviour. In the UK we have new, and tougher than the US, laws coming into force in May (Anti-Bribery Act). Some people call it a crusade for the West to be righteous; due to the simple fact that we within the next 10 years won't be able to compete on innovation, manufacturing, population, growth etc., but Ethical Behaviour is something that we in the West can always win on. (That was an attempt to include sarcasm, before anyone gets going)

Never the less, a UK based CEO will from 1st of May be liable for something that an employee did wrong in another country half way around the globe, even if that was to "offer a packet of cigarettes". So there is on our side of the pond a lot of evaluations going on about how one as a person and a company behaves ethically. I shall be the first to put my hand up and say that I don't always get it right, but I'm happy to amend my ways and I always learn from my mistakes. But we are facing a new world order, and that not only includes treatment of freelancers and contractors, but also how they behave.

Interesting times ahead - but please do vote above on my question in the previous post. I'm very interested in discussing it either in the forum or off-line.

my 1p...

All the Best
Mads
London, UK

Please do visit our faceBook page here: http://www.facebook.com/MacMillionProductions

Mac Million Ltd. - Digital Media Production
Blog: http://macmillionltd.blogspot.com


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Mark SuszkoRe: Freelance Editing + non competition agreement
by on Feb 16, 2011 at 12:01:15 am

The low salary isn't germane to the argument. She got what she contracted for. One of my favorite bible stories is in Matthew, ch. 20. Guy owns a vineyard, needs to bring the harvest crop in, in a big hurry, storm or something is coming and anything left behind will be ruined. He hires some guys in the morning for a set wage. Later in the day owner sees he's still behind, hires more guys. Last hour or so before dark, still not quite caught up, he hires more guys. Comes time to pay the workers, every worker get the same amount. The guys from the morning all-day shift are upset that the one-hour guys got paid the same for working one hour. Vineyard owner asks if the morning guys got what had been agreed to. They agreed they had. Vineyard owner tells them that the rest of it is none of their business then, it's his money to spend or waste as he sees fit, and they are not to get mad that somebody else did "better" than they did, if they got what they had fairly agreed to get.


That she got paid a crummy wage she agreed to is never by itself an excuse to do wrong.


You CAN make the argument that when anybody works for too cheap a rate, it depresses the local rates for everyone else, and is ultimately bad for business. The moral there is to know your rate and the local rates, and not just take the first number they hand out as the best deal.


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lisa sermanRe: Freelance Editing + non competition agreement
by on Feb 16, 2011 at 12:08:27 am

I hear you, and I know it's my fault for agreeing with the salary, but she could have chose to pay me whatever she wanted (more would have been fair) She had total control over the disbursement of the money.


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lisa sermanRe: Freelance Editing + non competition agreement
by on Feb 16, 2011 at 12:01:29 am

I am not actually saying that my actions were okay, but I am admitting some pent up frustration which is normal for any human being. But even with that said.... I would even say it was a mistake. It wasn't really sneaky intent at that moment when I said "yes" there was not a mean ulterior motive, but perhaps more of a justification feeling. Mads, not saying you're wrong, and yes you are only getting my side of the story. (Which there are always two perspectives) This is my perspective. I've told no lies, but simply my perspective.

Mads, you seem like a "black & white, right or wrong" kind of guy who doesn't allow for the gray areas in life. I can assure you there are plenty of gray areas and since I do not plan on inviting my producer on this forum, I am telling you my perspective and situation.


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Mads Nybo JørgensenRe: Freelance Editing + non competition agreement
by on Feb 16, 2011 at 2:24:26 am

Hey Lisa,

No problem, I really wish you the best of luck.

Please keep in mind the warning that is at the top of this forum. Your producer (and ex-friend) might decide to search on your full name and PBS (Just try this for your number 1 spot: "lisa serman" pbs). You might not invite her, but Google will.

The person that got you your first PBS credit and I suspect your first broadcast credit is the one that you should make friends with.

As much as it sounds like a trivial line out of the nearest self-help book, the following absolutely works for me: Treat other people, like you want to be treated. Eventually you'll be aligned to only be working with people who is of same mind and same integrity as you are.

All the Best
Mads
London, UK

Please do visit our faceBook page here: http://www.facebook.com/MacMillionProductions

Mac Million Ltd. - Digital Media Production
Blog: http://macmillionltd.blogspot.com


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Scott SheriffRe: Freelance Editing + non competition agreement
by on Feb 16, 2011 at 1:16:57 am

Mads
"Hey Scott,

I noticed that you didn't vote..?
"

Sorry, I don't get what you mean?

Mads,
"So far we have only got Lisa's story, so everything else is pure speculation."

I will take her story at face value. We have no reason not to. It sounds credible, and is plausible.

Mads,
"I've never said that anyone owns any client,..."

Well, lets see what you did say:
"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)."

"My clients"? "My freelancers"? You own your clients and freelancers? I'll bet that is news to them.
I'm sorry Mads, but that statement wreaks of ownership and entitlement. Unless you have a contract, I say the client is free to choose whoever they wish.
The producer should have had a contract with PBS if she was that concerned.
Long story short, no contract, no ownership.

This whole idea that an introduction to a potential employer means you owe this person a royalty is a straw man. Job one everyone got paid for the job they did. End of story, end of relationship, no contract, no one owes anyone anything. Equilibrium.
Job #2 starts from that point. Why does Lisa owe the producer for this work? And how is it unethical to accept this work? (double face palm)

Is she the victim of a grinder? It's up to her to decide that. Sometimes fast nickles beats slow dollars.
As far as her rate etc, that is a completely separate issue, and not the one at hand. The issue is the non-compete contract.

Mads,
"What we do know is that Lisa is not a loyal freelancer, and to support her claim she is quite happy to go through other peoples private notes, including publishing them -"

These are no longer private when they are carelessly left in her home. This is an admitted gray area. It is clear that the producer was careless, and sloppy.

So there is always someone that comes along that will work for less.
So what??? Why do so many people think they can hide their lack of competitiveness behind a non-compete? IMHO, it is about a sense of entitlement.
Either you change your rate, offer more for the money, or let them go. If a competitor can do the same work for less money, it is up to you to figure out how they are able to do that. Sometimes the client finds out the lower priced person cuts too many corners, and comes back. And sometimes they don't. And sometimes it means there are a million FCP licenses out there and the market is saturated, and the good old days are over.

Similar situation:
I replaced a Director on a show that didn't TD his own show. I do. The TD that used to get that gig isn't needed. I didn't charge more even though I did what amount to two jobs. I just like to cut my own show when possible. The TD went around whining to everyone about how I screwed him. I didn't screw him at all. What screwed him was his sense of entitlement. If he knew how to Direct, he could have gotten the gig. But he thought he owned the TD slot on this gig, and thought he was untouchable, and never bothered to learn another job. In the freelance world, unless you have a contract you don't own sh*t.

Scott Sheriff
Director
http://www.sstdigitalmedia.com

I 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...


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Mads Nybo JørgensenRe: Freelance Editing + non competition agreement
by on Feb 16, 2011 at 2:11:26 am

Hey Scott,

You better go back and read my previous post, because something clearly passed you by.

I don't like being misquoted: For the record, I don't own any clients and have never said so.

I do however make the strong choice of not re-hiring people or companies who decides to work around my company and thereby loose us revenue - that opinion is my prerogative to have, and I dare you to find anyone, including yourself, who would not do the same?

It is true to say, that I in this discussion have taken the moral high-ground and aimed more at the ethical behaviour rather than the legalities of the situation. From what I've deduced from your postings, you've in my opinion chosen the gravel-pit, and that is OK. Let's just agree to disagree, and then leave it at that.

I wish you the best of Luck - thank you.

All the Best
Mads
London, UK

Please do visit our faceBook page here: http://www.facebook.com/MacMillionProductions

Mac Million Ltd. - Digital Media Production
Blog: http://macmillionltd.blogspot.com


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lisa sermanRe: Freelance Editing + non competition agreement
by on Feb 16, 2011 at 2:24:53 am

Sorry, Didn't mean to start a big argument. Well, Where is my knight in shining armor to whisk me away to the Caribbean. Need that now.


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Scott SheriffRe: Freelance Editing + non competition agreement
by on Feb 16, 2011 at 3:26:32 am

Mads,
It is one thing to disagree.
However, to constantly call others ethics into question in order to win an argument is inappropriate unless you can demonstrate an expertise in business ethics such as a law degree, or an MBA.

For the record, I didn't misquote you. I pasted your quote verbatim, in context and in its entirety. I did render an opinion on your quoted statement. On that opinion you are free to disagree.

Scott Sheriff
Director
http://www.sstdigitalmedia.com

I 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...


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Herb SevushRe: Freelance Editing + non competition agreement
by on Feb 16, 2011 at 3:11:03 pm

Mads -

I have a small production and post company in NY. If, while producing a spot for a client, I hire a DP who is later hired directly by that client for another project I wouldn't have any problem with it providing the DP was not actively soliciting that work during my shoot.I would have no problem hiring that DP again. I have done so and will do so in the future.

I have also had guys badmouthing me to the client during a production in hopes of stealing them away, and of course I'd never work with them again. In general a good client wouldn't hire them, so pretty much if the client is available for such opportuning, they're not a long term client of yours anyhow.

Herb Sevush
Zebra Productions


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Jonathan ZieglerRe: Freelance Editing + non competition agreement
by on Feb 15, 2011 at 10:37:30 pm

OMG! She's keeping 50% of the contract? Yowza! I'm in the wrong business!

She shouldn't have left a contract out. That's a huge no-no from a client confidentiality standpoint.

Agree to a commission from the contractor of no more than 10% specifically for business received from one of her former clients for no more than 1 year. It's still free money for her and you are (likely) under no contractual obligation to do so anyway. Do this if you intend to do business with this person again. Otherwise, I'm pretty sure you won't be doing business with her again anyway.

TALK TO A LAWYER! I'm a huge proponent of getting legal advice on most business things. You may find there is a lot involved you don't know about and nobody on the board can give you legal advice (only well-intentioned legal-ish advice to which we have no legal obligation). Call around for a contract or business lawyer with a solid intellectual property and/or entertainment background. Many will give you a free 1-hour consultation for a specific issue and then will be able to quote you for any work they may have to do. Entertainment and IP lawyers aren't cheap, but spending a few hundred bucks to save you thousands in the long run is money well-spent. Many will also be able to generate generic contracts you can use again and again that protect your interests. I assure you PBS has its own lawyers that represent their interests nicely.

If you don't want to talk to an attorney or can't afford one, check this out: http://www.aiga.org/content.cfm/standard-agreement - the AIGA Standard Form of Agreement for artists. This will not cover video specifically, but it will cover many forms of creative expression. It's not a clip and paste doc, but it has a number of suggestions for the types of things creatives should be including in their own contracts. They will recommend you seek legal advice (anyone who offers any sort of legal document will make this recommendation to mitigate liability) and I still will, too. AIGA has been fighting for artist rights for decades and are a well-respected group.

Other legal resources for entertainment law:

http://www.lawlawlandblog.com/
http://marklitwak.blogspot.com/
http://www.filmindependent.org/content/legal-ease-entertainment-law-blog-yo...

Cheers! Remember: slander and libel are illegal! ;)

Jonathan Ziegler
http://www.electrictiger.com/
520-360-8293


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grinner hesterRe: Freelance Editing + non competition agreement
by on Feb 15, 2011 at 5:21:34 pm

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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lisa sermanRe: Freelance Editing + non competition agreement
by on Feb 15, 2011 at 8:56:20 pm

I hear ya!


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Jonathan ZieglerRe: Freelance Editing + non competition agreement
by on Feb 15, 2011 at 5:44:54 pm

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
http://www.electrictiger.com/
520-360-8293


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Mark SuszkoRe: Freelance Editing + non competition agreement
by on Feb 15, 2011 at 6:09:47 pm

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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lisa sermanRe: Freelance Editing + non competition agreement
by on Feb 15, 2011 at 9:06:10 pm

Yeah she may have been okay if I'd have called her, but then again (and maybe I'm being a bit passive-aggressive) I probably do not feel I owe her. I feel taken advantage of especially finding out what we each earned. Again my fault for accepting the terms, but feeling like she really took advantage of my naivete, I said yes to PBS right away. I understand what you're saying though.


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Mark RaudonisRe: Freelance Editing + non competition agreement
by on Feb 15, 2011 at 9:16:51 pm

Lisa,

Here's my .02 cents.

This person was NOT a friend. You are better off NOT ever dealing with her again. You are ENTIRELY
within your rights. In my opinion, you're lucky she revealed her true colors early on. You've saved
yourself untold grief (and money) by bailing now on this relationship.

Shed these kind of toxic people from your life as soon as possible. You will be much better without them.

Now, put this behind you and go create something!

mark



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Malcolm MatuskyRe: Freelance Editing + non competition agreement
by on Feb 15, 2011 at 7:24:49 pm

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


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Eric AddisonRe: Freelance Editing + non competition agreement
by on Feb 16, 2011 at 5:51:27 am

This is a really interesting thread!

My own thoughts as the owner of a production company, and as one who used to be a freelancer...I don't own freelancers. If I wanted to, I'd hire them. I don't use them that often, but when I do, I don't expect them to steal my clients.

That being said, if one of my freelancers did something that my production company doesn't offer - for instance, audio, I wouldn't feel bad if they got work from one of my clients. I have a guy who usually handles audio for me - he's a genius. I'm not set up as a recording studio, but if one of my clients needed audio work done, and they called him I wouldn't care in the least. That's not something I do. If I hired him as an editor, and they started calling him to edit that would be different.

When I freelanced, I did a lot of freelance work for one producer. Other producers saw my work and wanted to hire me too. The producer I was working for didn't want to hire me full-time, and while these other producers were his competition, they wanted me to work on projects for people that my usual producer didn't have as clients, plus I was doing something he couldn't do - edit! So I felt no guilt. I was doing good work, and that work was leading to other work. That's where I see you, Lisa, in this whole situation. You've done nothing wrong.

One other thing just to complicate the issue here - I used to work for a production company, and one of our editors quit to go on his own. As far as we know, he didn't notify any of the companies clients who liked to use him that he was quitting. When he left, a number of clients left us and starting using him. My old boss was furious and called him in one day to talk about it. The former editor said that these people looked at him like a doctor or hair dresser or auto mechanic...they wanted the guy they trust. And now that he's someplace else, they'll go where he is. That argument has always stuck with me. It's a tough spot, and I see both sides...but I tend to side (even as production company owner now) with the former editor. You spend long hours with an editor sometimes - you grow to like his style, his work habits, and even him (or her!) personally. I wouldn't go to the same barber shop if the guy who I usually have cut my hair left - I'd want to go where he is.

Lisa, if you had taken away a producing job from this person/friend, I'd say you were in the wrong. But if she can't edit and you can, then in my mind, you've stolen nothing. You've earned another job from a new client.

---Eric
Owner | 100 ACRE FILMS
http://www.100acrefilms.com


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Malcolm MatuskyRe: Freelance Editing + non competition agreement
by on Feb 17, 2011 at 5:35:33 pm

This thread seems like a discussion of "ownership" no one "owns" their clients, no one "owns" a free-lancer (contract laborer) Once the contract is up, you do what you want! If the "producer" has a problem with that, they can put you on salary, then they can tell you what to do, till that day, they are being very unreasonable and unprofessional. No one has the right to tell you whom to work for or not, unless they are your employer and you are being well compensated. Poaching clients is a very vague term, if they are the "producers clients" (ownership) then why are they calling you? Because the client does not feel the "producer" owns them, and they have no obligation to work with them after their contract is completed. They can work with anyone they want to and so can you!

Malcolm
http://www.malcolmproductions.com


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walter biscardiRe: Freelance Editing + non competition agreement
by on Feb 22, 2011 at 11:40:08 am

The boss should have had you sign a non-compete clause prior to the edit essentially saying that if the third party approached you directly about working with them, you would have to go through the boss first.

I use freelancers all the time in our shop and one of the things we don't have in place is a non-compete for freelancers. We DO however have an understanding that if I bring you in to work on a project with one of my clients, they're still my client. If you decide to work directly with that client in the future, that will harm our relationship.

Fortunately I have a very good roster of freelancers who respect that I don't steal their clients and they don't steal mine. We have had a few instances where the client went directly to the freelancer for follow up work or potentially another project. In those cases, the freelancer contacted me first and we either worked it out or I simply released the project to the freelancer directly. It also works in reverse when I help out a colleague or another company with a project. If their end client calls me directly for a project, I go back through the original colleague / company before proceeding.

Open communication is the key. If I had enough work to keep a freelancer busy all the time I'd hire them. In lieu of that, I pay them a fair wage to do the work and trust that they respect me and my company enough that they won't try to steal clients.

In your case, when the PBS Exec approached you directly, it would have been appropriate for you to at least let this boss know that they approached you and want to work directly with you. This would have probably defused what turned into what sounds like a bad situation for you where you got caught in the middle.

Walter Biscardi, Jr.
Editor, Colorist, Director, Writer, Consultant, Author, Chef.
HD Post and Production
Biscardi Creative Media

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lisa sermanRe: Freelance Editing + non competition agreement
by on Feb 22, 2011 at 4:46:22 pm

Thanks for your insight. Makes sense. I should have probably called her. Let me ask you one other question. What in your area is a fare wage to pay freelance editors? Do you pay per project or per hour? Thanks!


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walter biscardiRe: Freelance Editing + non competition agreement
by on Feb 25, 2011 at 12:57:51 pm

[lisa serman] "Thanks for your insight. Makes sense. I should have probably called her. Let me ask you one other question. What in your area is a fare wage to pay freelance editors? Do you pay per project or per hour? Thanks!"

Editors in Atlanta make between $35 to $75/hour freelance depending on how much experience they have, the project, how good they are and the length of the contract.

For documentaries we pay strictly by the hour. There's no reasonable way to know how long a documentary will take to edit so I bill my clients by the hour, thus, the editor gets paid by the hour.

For regular series / episodic work, it's per project since we have a set amount of days for each edit so we can plan that way.

My full-time employees are paid hourly. We have four full time employees and a roster of 20 or so freelancers we work with on a regular basis.

Walter Biscardi, Jr.
Editor, Colorist, Director, Writer, Consultant, Author, Chef.
HD Post and Production
Biscardi Creative Media

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walter biscardiRe: Freelance Editing + non competition agreement
by on Feb 25, 2011 at 1:25:28 pm

[walter biscardi] "Editors in Atlanta make between $35 to $75/hour freelance depending on how much experience they have, the project, how good they are and the length of the contract."

I should clarify, that's the editor only working on my equipment. What editors charge with their own gear varies wildly. It's extremely rare that I hire an editor with their own equipment.

Walter Biscardi, Jr.
Editor, Colorist, Director, Writer, Consultant, Author, Chef.
HD Post and Production
Biscardi Creative Media

Register now for our Open House March 5

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Lisa SermanRe: Freelance Editing + non competition agreement
by on Feb 25, 2011 at 5:17:01 pm

Okay, so 40-$45 p/h is reasonable. Is that for straight up editing or do editors usually include use of Photoshop, AE and Motion to create graphics? I have an advance knowledge of Photoshop, but only a basic knowledge of motion and AE. I can create 3D titling that move and spins, but beyond that, I need to use templates for most other things. Do most editors charge extra for the creation of customized motion graphics?

Thanks


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walter biscardiRe: Freelance Editing + non competition agreement
by on Feb 26, 2011 at 1:54:42 pm

No, nobody charges extra for graphic work. Straight hourly or daily.

I don't do that ala carte pricing in my shop to use certain software during edits.

Walter Biscardi, Jr.
Editor, Colorist, Director, Writer, Consultant, Author, Chef.
HD Post and Production
Biscardi Creative Media

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Lisa SermanRe: Freelance Editing + non competition agreement
by on Feb 26, 2011 at 5:40:10 pm

Good to know... Thank you!


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Scott SheriffRe: Freelance Editing + non competition agreement
by on Feb 22, 2011 at 5:10:27 pm

Walter,
"The boss should have had you sign a non-compete clause prior to the edit essentially saying that if the third party approached you directly about working with them, you would have to go through the boss first."

As an advocate of the non-compete, I was wondering if you extended this philosophy to other tradesmen you do business with?
How would you react if say, your plumber, mechanic, carpenter etc asked you to sign a non-compete contract?
If you decide to switch to a different barber, or electrician do you ask their permission first?
When you worked for someone else, did you ask the boss' permission to send out your resume' if you saw a job you were interested in?


I don't disagree with the overall sentiment of what you said, and that common courtesy should always be the rule.

Scott Sheriff
Director
http://www.sstdigitalmedia.com

I 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...


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Gav BottRe: Freelance Editing + non competition agreement
by on Feb 22, 2011 at 10:37:24 pm

"How would you react if say, your plumber, mechanic, carpenter etc asked you to sign a non-compete contract?
If you decide to switch to a different barber, or electrician do you ask their permission first?"

In all of those cases I'm the client - and therefore can take my money where I like......

The Brit in Brisbane
The Pomme in Production - Brisbane Australia.


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Rob GrauertRe: Freelance Editing + non competition agreement
by on Feb 23, 2011 at 9:20:13 pm

Scott Sheriff,

The situations you're listing off don't compare well to Walter's situation.

In his situation, he is the employer and the freelancer is the 'employee.' They want to avoid competing over common clients.

In the situations you listed, you made Walter the client - the client of his plumber, his mechanic, his carpenter, his barber, his electrician. He's the CLIENT is all of those, so your examples aren't applicable.

The resume example you provided is more along the lines of what he was talking about though. And I'm assuming Walter would have no problem with his freelancers sending out resumes as long as they weren't going to his clients.

...just saying

Rob Grauert, Jr.
http://www.robgrauert.com
command-r.tumblr.com


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lisa sermanRe: Freelance Editing + non competition agreement
by on Feb 23, 2011 at 9:49:40 pm

Okay,
wait.... lol

Easy way of looking at it perhaps. My producer produces commercials for our local Ford car dealership.She calls them her client (as they are) PBS is not only a network, but a production company as well. They are in a different category than local mom and pop businesses who have nothing to do with television production. I don't believe even my producer can classify PBS as her "client". It's not the same.

Example: We both share the same camera guy. I introduced my cam guy to my producer. I can't say to my camera guy... "hey look, you got to sign a contract stating that you wont work with any other production company other than me" It wouldn't even be right to ask him for a 10-15% commission on all the gigs he gets with her. I cannot dictate what production company he works for just as this woman cannot make me sign a contract stating that I cannot work for PBS without consent. Doesn't make sense.


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Scott SheriffRe: Freelance Editing + non competition agreement
by on Feb 24, 2011 at 7:42:20 pm

Bob,
"The situations you're listing off don't compare well to Walter's situation.

In his situation, he is the employer and the freelancer is the 'employee.' They want to avoid competing over common clients.

In the situations you listed, you made Walter the client - the client of his plumber, his mechanic, his carpenter, his barber, his electrician. He's the CLIENT is all of those, so your examples aren't applicable.

The resume example you provided is more along the lines of what he was talking about though. And I'm assuming Walter would have no problem with his freelancers sending out resumes as long as they weren't going to his clients.
"

I see what your saying, but I was using Walter as a vehicle for a rhetorical statement. It was aimed at those trying to assert the right to control the market because they occasionally hire someone. They are probably worried about loosing work to a lower priced competitor. Welcome to the free market.


According to Merriam-Webster

Definition of FREELANCE
1
a usually free lance : a mercenary soldier especially of the Middle Ages : condottiere b : a person who acts independently without being affiliated with or authorized by an organization
2
: a person who pursues a profession without a long-term commitment to any one employer

I believe that those who assert the notion that they own the client and/or the freelance worker are just wrong. My comments about other trades, were simply food for thought along those lines.
It seems those most in favor of this ownership really want this to work like a one way valve. They want to control the clients choices, and relieve themselves of the obligation to keep the sub-contractor employed if it suits them. This attitude seems to be unique, and very self-serving. Normally when someone wants to enter into a relationship like this with a worker, they back it up with full time employment, or some other incentive. Not by 'blacklisting' them, which is what this is.
Another way is by mutual agreement such as a contract. Unless you are acting as an agent, those type of non-compete contracts are often with the client, not the sub-contractor. Why? Because the sub isn't under any obligation (real, or implied) to ask permission to work. I wanted to show how many other common trades we all use day to day operate this way.
And it's not just them. Live TV, sports, non-union gigs like that don't work like this. In towns where there are all the major sports franchises it is not uncommon to have multiple events on the same day. This is all handled on a first come/first served basis. Often people try to hire the same crew all season, but if your booked first by someone else, you don't get blacklisted for not asking permission to freelance for someone else. So unless you are a staff employee, ESPN doesn't care if you work for Fox tomorrow, and will hire you for the next gig without a second thought.

Should there be some common sense and etiquette? Sure. Freelancers shouldn't solicit work while I'm paying them. But other than that, no. What they do on their own time is not my business. If I want to make it my business, I need to pay for that privileged by hiring them. Or I can just make sure my prices and service can't be beat by any subs I hire. Problem solved.

Scott Sheriff
Director
http://www.sstdigitalmedia.com

I 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...


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Bob ColeRe: Freelance Editing + non competition agreement
by on Feb 22, 2011 at 10:58:40 pm

It's less about ethics than practicality. Everybody has to get by, and everybody has his reasons for doing what he does. But you as well have to be able to make a living, and live with yourself.

As a rule I agree with Mads and Walter. Common sense dictates that the freelancer should offer to pay the producer/former-friend APPROPRIATELY, e.g. 10%, not 50%. If the producer wanted 50% of the tiny budget, good-bye producer, so long friend.

Probably like most of the people on this thread, I'm basing this on personal experience. I've been in Lisa's position, and had a client approach me directly -- I always, always talk to the producer who introduced us, and make a deal (sometimes 0%, sometimes 10%) -- and usually go on to do more jobs, where the client goes through the producer, who hires me again.

I've also been in Lisa's producer's position, when a hungry freelancer and a penny-pinching client collude behind my back. That's a good way to find out that a client is a grinder, imho, and not worth keeping. And of course, although I'll still hire him when necessary, the hungry freelancer won't get the first call again.

Bob C


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Immy HumesRe: Freelance Editing + non competition agreement
by on Feb 23, 2011 at 6:55:43 am

Thanks to all for yr comments, I find this thread very interesting. I've been on both sides in different ways over the years, but as a freelance documentary producer, director, and editor, often for PBS, one thing in particular jumps out at me:


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.


This was your FIRST hour doc. You'd never worked on anything longer than 12 minutes, expect for WEDDING VIDEOS.

To me, this screams big break. Your first PBS credit presumably, and first long-form. This puts you in a different job market. Before, I would never have hired you to cut long-form, even if you were my best friend. I tried that once and it was a disaster. Almost cost me an A&E hour. Now, assuming your hour is well-cut, I'd consider you.

So saying you're an idiot cuz you didn't know how much work was involved is not the point. It just shows that you did have a lot to learn about the process, and were probably, with all due respect, slower than someone who'd done even one before. Many people would happily take $10 an hour as you did to get that experience and credit. (I have many talented film students who would do it for free.) An experienced doc editor would have done it in less time, upping the hourly rate considerably.

Also, I can't help suspecting that your "director of editing" (odd title... was there another director?) carried more weight than you're aware of. Are you sure you know all the hours she put in? and what is her getting the job worth?

The sad part is PBS paying $7500 to cut an hour. They're supposed to pay a living wage. But I don't find the division of labor and money scandalous at all, and I hope you will reconsider feeling ripped off by yr friend. You may come to feel better about her and what you've gained.

That said, I don't think a non-compete agreement is a good idea. Just sounds like hurt feelings on your (former?) friend's part.

Sincerely,
Immy


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lisa sermanRe: Freelance Editing + non competition agreement
by on Feb 23, 2011 at 7:38:40 pm

I definitely see your point. And yes, this was my very first long-form of anything to do with broadcast. My producer gave me an opportunity to work for her.... NOT PBS. I was hired via my producer through her company. And yes, I was on a learning curve and it probably took me longer than seasoned television editors. (but no more than a 40 hour learning curve)

With all that being said. I have to tell you that I'm 40 years old with a family to feed. I'm no student and although you say many people would have done this gig for free, you may be referring to students just out of college. My producer wanted to work with me because she knows I'll stay up 24 hours straight to finish something, If I don't know how to composite something in Motion or After Effects, I'll do whatever it takes to figure it out. I'm diligent, responsible and she knew this about me. This is why she asked if I would work on the project.

I also believe she asked me to work on the project because she knew she'd get the most bang for her buck. And yes, I feel sore and I feel taken advantage of, but that's my fault not hers. It doesn't really matter what I feel, it is what it is. I have to "suck it up" as they say.

I do not feel like I owe her anything beyond what I've already given her. The project is completed, PBS is happy. They contacted me for this little 5 minute piece. I probably should have called my producer (not to ask permission, but just out of courtesy) I realize this now. This is where the feelings got in the way and at the time, I felt like she didn't own me. I am a freelancer. I had already agreed to give her a finders/agent fee, and I told her I'd sign an agreement stating that I would not actively seek past clients up to a certain time period (from what I've been seeing online, some contracts state a period of 6 months up to 2 years).

I have a problem signing an agreement that I cannot accept a job from a past client even if they contact me. The ten years I've known her, I have only edited one or two projects a year. Most of them being 30-second commercials and one - 12 minute promotional video. It's not like I earned a set salary from her and worked for her full-time. I work for several people.

She's a producer and director. I am an editor. She has very little technical skill and does no editing herself on ANYTHING. I don't see where the competition thing comes into play in this situation.


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Immy HumesRe: Freelance Editing + non competition agreement
by on Feb 23, 2011 at 10:06:27 pm

Well it seems that your story got attention from lots of us production people - so i think you did us a favor by sharing it.

The Doc Tank, inc for documentaries


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lisa sermanRe: Freelance Editing + non competition agreement
by on Feb 23, 2011 at 11:59:27 pm

Thanks, It's worth a discussion. And debate I think. I hate the business side of it.. I just want to edit and be creative.


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Bob ColeRe: Freelance Editing + non competition agreement
by on Feb 25, 2011 at 3:33:52 am

A reminder of what the stickie at the top says: this is a public forum and is indexed by Google, etc. If there is anything you don't want your producer/friend to read, you shouldn't post it here.

(but it has been interesting to read...)


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Malcolm MatuskyRe: Freelance Editing + non competition agreement
by on Feb 25, 2011 at 7:34:50 pm

If you sign a contract saying that you will not "actively pursue" clients for 6 months to 2 years, you should be compensated for this, and just doing the job is not sufficient compensation. If a producer want's to keep you off the market for a period of time, they have to EMPLOY you for that period of time. You are not a well paid executive who can afford to pas up work, because you got a "buy out" from an employer who does not want your "unique" knowledge to go to a competitor, none of which apply to a freelance editor. The producer does not "own" the client, and they do not "own" you. They cannot demand you not work for anyone unless they are currently employing you. If they do they are being very selfish and you will be best served taking the job and passing on any "future' work with the producer.

Malcolm
http://www.malcolmproductions.com


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Lisa SermanRe: Freelance Editing + non competition agreement
by on Feb 25, 2011 at 8:18:02 pm

Okay, I like what you're saying. I was just trying to be "fair" to her. But I suppose I need to think about my ability to earn. Business is business.


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Pat ChrysalisRe: Freelance Editing + non competition agreement
by on Mar 23, 2011 at 8:54:25 pm

First, I want to thank you all for taking the time to discuss such an important topic. For the first time in 10 years I am currently faced with a decision about non-compete, and your insights are invaluable. Thank you.

I am a freelance instructional designer. I got a call from a recruiter a few weeks ago asking if I was available for a subcontract from a media company. After several interviews, checking references, etc., the media company wants to hire me for a 6-month period. The odd thing is, however, that I will technically work as a contractor for the recruiter-- the recruiter will bill the media company directly and give me my share (about 2/3 of the billing rate). Sounds to me like the client is paying a lot of money to the recruiter, but that's not my business.

Then today, at the 11th hour, the recuriter mentions that he's about to send me the contract and, by the way, it contains a non-compete clause where I can't work for this client directly for 1 year. If the client wants to hire me for another job, they have to go through the recuriter again and pay the recruiter's percentage.

This sounds to me like some of the situations discussed in this thread-- the recruiter does not have my skill-set in house, is doing nothing hands-on to complete the project, and wants to continue milking this particular cow for as long as possible. Ethically, I don't mind them getting a percentage for the current contract (assuming I sign it). They had the approppriate recruiting/search skills and did the work to find me and set me up with the client. Fair enough. But if the quality of my work results in the media company wanting to hire me again, why should the recruiter continue to get a cut of the action? I'm sure the recruiter would claim that "placing" people is their business and by "placing myself" with the media company I would be hurting their business.

I would apppreciate your thoughts on the ethics of this business model.


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Bob ColeRe: Freelance Editing + non competition agreement
by on Mar 23, 2011 at 11:06:11 pm

On the face of it, one year doesn't sound so bad - it's the original period plus one renewal. But I'd attempt to negotiate down the percentage (from the start) in exchange for the one year. 1/3 seems high to me. And remember, Google indexes all of these threads.

Bob C


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Mads Nybo JørgensenRe: Freelance Editing + non competition agreement
by on Mar 24, 2011 at 1:18:16 am

Hey Pat,

I'm with Bob on this, a year is not a long time.

[Pat Chrysalis] "This sounds to me like some of the situations discussed in this thread-- the recruiter does not have my skill-set in house, is doing nothing hands-on to complete the project, and wants to continue milking this particular cow for as long as possible."
I know that there is number of freelancers around that thinks, that because they are able to do a task that their "provider" are not able to do, that this gives them the right to do a stampede on the end-client.

Please do remember that the one thing that you were not able to do, was to land the client in the first instance. Think of yourself as part of a racing team: You might be the driver, but without the mechanic you won't stay on the track and without the person selling the advertising, you won't be able to raise finance to race in the first place.
Aah, I hear the clever clogs say, but we can do all of that ourselves. In which case Pat: You do not need the recruiter or their client... get my drift?

However, instead of looking for loop-holes as to why you need the recruiter, you need to change the perception of him. By him hiring and paying you to do a job for a third party, he will no longer acts as just a recruiter. He is now your agent, or employer. Your contract needs to stipulate what it is?

In that scenario the "recruiter" should state whether you are able to take on work for your own clients during the contracted period? Who covers insurance and taxes + how about holiday pay? It suddenly becomes a very expensive and complicated exercise.
Normally an agent will take 10-12.5% fee and contract you not to seek work direct for up to 12 months after the last invoiced job, but you carry your own expenses.
Where as an employer... one might not want to do that if he has to sort out all of the small print...

In regards to your fees. If you are paid your normal full fee and you don't have to do the "small print" stuff, including negotiating with the end-client, what do you actually have to complain about?

Either you are not charging enough for an excellent product? Or your "sales-man" is a fantastic marketeer and sells based on value rather than what is the mark-up on the production/purchase-price from supplier.

If you get paid on time, what you've asked for, then you do not have the right to question or moan as long as you are not asked to about it lie to end client or anyone else. I.e. as an example the recruiter might claim to take less of the fee than what they actually are taking etc.

Hope this yet another point of view helps? :-)

All the Best
Mads
London, UK

Please do visit our faceBook page here: http://www.facebook.com/MacMillionProductions

Mac Million Ltd. - Digital Media Production
Blog: http://macmillionltd.blogspot.com


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Pat ChrysalisRe: Freelance Editing + non competition agreement
by on Mar 25, 2011 at 1:27:47 am

The End of the Story

Just to let you all know... I was offered the contract. One year, part-time, at a very nice hourly rate. But the contract did contain a draconian non-compete clause.

Wiping away a tear of regret, I told them to remove the non-compete clause or no deal. Through several conversations with several people going up the ladder, I was polite, professional, sympathetic to their concerns, but absolutely implacable. In the end, they removed the offending paragraphs.

We both signed the contract and we're in business. Hooray! Score 1 for the creative freelancers of the world!


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Lisa SermanRe: Freelance Editing + non competition agreement
by on Mar 25, 2011 at 1:59:04 am

Congrats! I am so happy it worked out for you.


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