[co-author: Charles LeCocq - Summer Associate]
Competition is the name of the game this summer. The presidential hopefuls travel the country competing for votes. After knocking out Marco Rubio and Ted Cruz and more than a dozen other Republican Presidential hopefuls, Trump now competes against Hillary Clinton, while also competing for the votes of his former competitors. Hillary, meanwhile, battles Trump while still competing against Bernie. It is hardly a coincidence that our summer movie blockbusters in this heated election year feature themes of titan against titan. Batman fighting Superman. Iron-Man fighting Captain America. Of course, they ultimately compete for the hard-earned money and attention of the American people. Although audiences may want to see more of these dynamic crossover battles, well-crafted non-compete agreements can impact the ability of employees to leave their current position for a competitor’s new opportunity.
Employers can use non-compete agreements to retain uniquely valuable or skilled employees, or at least to keep them from using their talents at an employer’s direct competitor. If the agreement allows, the former employer can seek an injunction barring disallowed future employment, in addition to seeking damages. In a recent Florida case, a medical weight loss facility obtained an injunction when the trial court determined that a doctor breached his non-compete agreement. (See JDJ of Miami, Inc. v. Valdes, Fla. 11th Cir. Miami, 2016). In the contract, the doctor agreed that upon termination of his employment, he would not dispense prescription weight loss medicine or work at a competing weight loss clinic for an agreed period of time and within an agreed geographic area. If a former employer can demonstrate to the trial court that the non-competition agreement is intended to protect a legitimate business interest, Florida courts typically enforce non-competition agreements. However, Florida law demands that an enforceable non-competition agreement contain reasonable geographic restrictions and expires after a reasonable period of time. In the doctor’s case, if he had wished to prescribe weight loss medication after his job ended, he should have waited 15 months or worked at a medical practice or facility located beyond the area of the agreed geographic restriction.
Starting in 2008, Marvel Studios began a system whereby studio-employed actors frequently reprise their characters in films loosely tied together within the same “universe.” Robert Downey, Jr., has reprised his role as Tony Stark/Iron-Man in at least seven feature films. Of those, only three were in the Iron-Man series. So what’s the concern with an actor playing the same character in multiple films? The concern is that Marvel has licensed several of its properties to other film studios. These studios employ actors to play those roles. Marvel recently acquired the right to use the famous web-slinger Spider-Man in the most recent Captain America film. Prior to this, Sony Pictures held exclusive film rights to the very popular crime-fighting arachnid. (Interestingly, Marvel only obtained the right to the Spider-Man character, not to the actor that currently portrays Spider-Man.)
So what happens when property and performer are intricately connected? Take the foul-mouthed, 4th-wall breaking Deadpool, the comic-book juggernaut that exceeded all box office expectations. Upon the colossal success of the Deadpool film, Marvel’s biggest stars and biggest fans now clamor for Deadpool to appear in a Marvel Studios film. Twentieth Century Fox owns the exclusive film rights. Unlike Spider-Man – a character that different actors have successfully portrayed – critics credit much of Deadpool’s success to actor Ryan Reynolds’ passionate performance. (Reynolds was a driving force behind the Deadpool project.) Without Reynolds, some industry analysts opine, future Deadpool films may not replicate the initial success.
Non-compete agreements and protection of signature art styles are more common in the entertainment industry than many people realize. While Pierce Brosnan was playing James Bond, he was contractually forbidden not to wear tuxedos in any non-Bond film. To see the translation of these agreements to real life, you can note that for a black-tie scene in The Thomas Crown Affair, Mr. Brosnan wore an unbuttoned dress shirt with an undone tie. Classy perhaps, but certainly unlike the always-dapper 007.
Donald Trump has proven that a Presidential hopeful need not have a resume reflective of a life in politics. Hillary Clinton has proven that perseverance can pay off. Bernie Sanders has proven that with a tailored platform, even a long-shot can make an impressive run. The competition for President of the United States continues. If competition drives your business, consider having in place well-drafted non-compete agreements to protect you from the inevitability of departing employees aiding the bottom line of your competitors.
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