Tuesday, April 24, 2018

Non-Compete Agreements in the Artworld?


Imagine an artist working for another artist (typically called a studio assistant) and that same artist being asked to sign an agreement where she agrees to not work for another artist within a number of years dictated by that same agreement. Or a curator being asked to sign a similar agreement, where he agrees to not work for a competing museum or art institution. And what about an art instructor? Or writer agreeing not to write for a competing art journal?

Does it happen? You bet, albeit probably not to the extent that it does in other industries. But that might change.

A few weeks ago I read an article in the NY Times, where noncompete agreements were being signed by yoga instructors, chefs, and camp counselors, so why not workers in the art world? There are good reasons for noncompetes, such as keeping employees from walking with valuable proprietary information and intellectual property, not to mention having been trained and prepped by employer one only to lose that employee to employer two.

But there are also arguments against, primarily that most workers, certainly in the art world, do not have the bargaining power to negotiate NCAs. They also, in general, don’t have the financial capacity to hire attorneys to negotiate and review their NCAs. Lastly, it may hurt job mobility, forcing many workers to stay put rather than be unable to find a similar job with a so-called “competitor.”

As the articles below point out, there are some states that don’t enforce NCAs, such as California (roll your eyes), where as others, such as the great state of Texas place only a few limits on them.

Since that NY Times article a few weeks back, the Times has also had a “room for debate” on this topic, as well as an op-ed. There’s also this well-penned argument by Peter Cappelli, professor of Management at the Wharton School.


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Comments: 4

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  • Daniel Grant

    Not too difficult to figure: Artists don’t pay their assistants enough — or provide sick days, health insurance or any other perks — to be in a position to demand a non-compete agreement. In other fields, the type of employees who might be asked to sign a non-compete agreement are better compensated, but artists generally have a difficult time acknowledging that their assistants are employees.

  • Hi Dan,
    Thanks for your thoughts. Agreed, but there are certainly some employees that have access to sensitive information and data, such as client lists or assets protected by IP laws, so I can see NCAs applying here, as well as to employees who are deemed to provide unique services to an employer, and thus the current employer would not want that employee running out to a competitor. We don’t really tend to hear about these, but one can certainly think of them applying in the auction-house business, no?

  • Heather Schubert

    I was researching this issue and came across job postings for Studio Assistants for commercial photography companies that required non-compete contracts as well. Not the same as a Studio Assistant for an Artist, but still a good issue for photographers to be aware of in the future.

  • Hi Heather,
    That’s a great point. Thanks for sharing!


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