Non-Competition Agreements and Publicity Rights

[Ambidextrous]

As an independent copywriter, I am used to "work for hire" and non-disclosure agreements. However, I recently showed up for freelance work at an internet agency and was asked to sign a nondisclosure, noncompetition agreement which would prevent me from working for another agency or company which markets products on the internet for a year. I wouldn't sign for the "non-competition" clauses.

Question: Once the work is produced (i.e., made public), shouldn't I--as the writer-- be allowed to publicize the work, and my role in it. Prior to publication of the work, who actually holds the copyright to the words I wrote? Are these noncompetition agreements enforceable, when the period of time they preclude one from competition (in the example above, 1 year) are much longer than the period of time the person--employee or contractor -- was working for the company (three weeks, in this case)?

[Anonymous]

Your post seems to involve two separate issues - first, the non-competition agreement, and second, the assignment of your copyright to the agency. Copyrights can be assigned, although assigment must be in writing.

If you assign your copyright to the agency or its client, they would be able to prevent you from publicizing the work as they would then be the owner. (In some states, any intellectual property that an employee produces on the job becomes the property of the employer, while in others there must be a written agreement for the employer to gain ownership, but as you are an independent contractor and not an employee it is unlikely that those laws would affect you.)

The term of the non-competition period must be reasonable. That will not necessarily depend upon the length of the work relationship, or the length of the noncompetition period, of itself. That is one of many factors likely to be considered by the court, with a great deal of emphasis placed upon the agreement's effect on your future employability. (That is, it may be reasonable for an agency to keep you from working for certain competitors for a period of time after you stop working for them, but it isn't reasonable for them to impose terms which effectively make it impossible to find employment, or which are significantly broader than necessary to protect their interests.)

Some states will not enforce employee non-competition agreements, on the basis that they are against public policy, but most will enforce them to one degree or another. It is my understanding that New Jersey permits noncompetition agreements, if reasonable, which impose post-employment restrictions.

[Ambidextrous]

Thank you very much for your insight. I found, through your website, a company which represents several in the advertising industry. There were (not copyrighted) forms from which I was able to piece together my own agreement. Hopefullly this will help in my future business relations.