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Does a Non-Compete Carry to The Web?

7-28-2012

What if you are on the air, and one day you're not. Fired. Just like that. It could happen. You may say something the GM's spouse didn't like. You may offend the church down the street causing complaints your boss just doesn't want to deal with. Or, HQ may decide your brand new newsish format, geared toward women, should really be music. Out you go. Bye Bye. What about your non-compete? What if you decide to take your funny shtick, cool radio name, Facebook Likes and head for the World Wide Web. Can you do that? Is that legal? We put that question to Broadcast Attorney John Garziglia.

Here's what Garziglia said:
A radio personality taking his or her show to a podcast after leaving a radio station with a non-compete in a state where non-compete restrictions are enforceable, or even if there is not a non-compete, invites a variety of legal issues.  Here are some of the issues that immediately come to mind. 

The first issue is whether by the terms of the non-compete agreement itself, podcasting is specifically prohibited for a time period after employment termination.  Many non-compete agreements only restrict employment with other area broadcast radio stations.  Others may be more broad.  For instance, if the restriction was that the subject employee would not compete with the employer through broadcasting activities that reach listeners within the service area of the former station, that restriction likely would prohibit podcasting.  It all depends upon what the non-compete says, and then how a court interprets what the non-compete says.

The second issue is who owns the names and elements associated with the radio show and possibly even the name of the radio personality.  If DJ Joe Smith was hired five years ago by a radio station and the employer radio station gave Joe his air name of Buffalo Bulldog which Joe has used ever since on his radio show, the name Buffalo Bulldog may very well be owned by the radio station and not the departing air personality.  Likewise with bits, creative, sounders and show elements, either created by the radio station’s personnel or by Joe Smith himself as an employee of the station, those may all be owned by the radio station. The former air personality may not be able to use any of it in podcasts.

The third issue involves advertisers.  If the non-compete specifically prohibits contacting former advertisers, then there is likely not even an arguable claim it can be done.  Even without the non-compete prohibiting this, however, absconding from a radio station with, and using for gain, any internal information such as advertiser lists or sales information that might be regarded as trade secrets or proprietary information, may be grounds for being sued. 

Finally, in our social media era, there are significant issues yet to be fully threshed out as to who owns Facebook and Twitter accounts that may be the work-product of an employee’s employment and created while being paid by the employer. 

There is a reason that successful radio personalities employ agents and lawyers to negotiate employment contracts.  There is also a reason that radio stations likewise employ lawyers to draw up non-competes and related employment agreements.  The more precise an agreement, the fewer gray areas there will be at the time the relationship terminates.  In the absence of a precise agreement, however, the above issues and more may arise if talent upon departing takes content, creative, service marks, client information and even the air personality’s name, and competitively uses it against the former employer. 

For more articles from John Garziglia go HERE
John F. Garziglia is a Communications Law Attorney with Womble Carlyle Sandridge & Rice in Washington, DC and can be reached at (202) 857-4455 or jgarziglia@wcsr.com. Have a question for our "Ask The Attorney" feature? Send to edryan@radioink.com.



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