Publication date: 4 September 2019
Auction houses, galleries and art dealers must protect their network and expertise. This can be achieved by including non-compete, non-solicitation and confidentiality clauses in employment contracts with key employees or in contracts for services with freelancers. The drafting of these clauses requires the specialist knowledge of an art lawyer.
The art world does not only have to deal with the law in disputes over authenticity and provenance of works of art. The protection of the network and expertise of auction houses, galleries and art dealers is also an issue. Sound agreements with key employees and with freelancers about confidentiality, non-competition and contacts with business relations are of vital importance to your art business.
Non-compete clauses, non-solicitation clauses and confidentiality clauses with a penalty clause are the most common ways to prevent key personnel from making use of the knowledge and contacts they have acquired. However, such clauses must be worded carefully or they will either be invalid or not applicable.
A non-compete clause must be laid down in writing and limited in duration, location and sector. A non-compete clause in a fixed-term contract will only be valid if the clause states which substantial business interest is the reason for the inclusion of the clause. This is not required in permanent employment contracts. However, it is wise to think carefully about which competitors you wish to exclude. Also take into account the possibility that the employee starts his own business.
The same requirements apply to a non-solicitation clause as to a non-competition clause in respect of written form and temporary contracts. Particular attention should be paid to prohibiting contacts with relations through social media.
A confidentiality clause in the art trade will mainly concern the knowledge of business processes and relationships. The employee must not, by definition, disclose any business secrets or harm the competitive position of the employer. However, it is wise to make explicit agreements and to lay these down in writing for the time the employment contract has ended .
The rules set out above only apply to employment contracts that fall under Dutch law. If your employee starts working abroad, the provisions will continue to apply under Dutch law. If you hire someone from abroad, other rules might apply. In the US, these rules may even vary from state to state. Therefore, always have checked-out whether your new employee is allowed to work for you.
You can include agreements about non-competition, non-solicitation and confidentiality in the contracts for services with freelancers and other self-employed workers without employees. The first two, however, will not be as strictly enforced as in the case of employees. Nevertheless, it is wise to make such agreements. Keep in mind, however, that such agreements may also be an indication that there is an employment contract instead of a contract for services. Particularly in view of the obligation for a self-employed worker without employees to have more than one client, caution is called for. Therefore, seek the advice of an employment lawyer on this.
Are you looking for an employment lawyer in the art sector? Would you like to have a non-competition clause, a non-solicitation clause or a confidentiality clause drawn up? Or do have any other questions concerning art and law? Please contact us:
On 10 January 2020, the Fifth EU Anti-Money Laundering Directive came into force. This will have major consequences for the art world. What are the most important ones?read on
According to the Amsterdam District Court, Uber drivers are employees. Therefore, they are covered by the collective agreement of the taxi industry with all associated rights and obligations. How did the District Court reach this judgement? And what does it mean for other forms of platform work?read on
In this article, we will discuss several questions and challenges in the field of Dutch employment law, tenancy law and contract law during COVID-19.read on
Do the new rules of the Supreme Court for the assessment of employment contracts also have consequence for management agreements? Case law has not decided yet. This can be seen from the judgments of the Arnhem-Leeuwarden Court of Appeal and the District Court of Midden-Nederland about the management agreement of the CFO of Volksbank.read on
A sick employee may not be dismissed. However, an employee who knows of imminent dismissal, cannot avoid this by reporting sick. But when does the employee know that this is the case? This question was central to the court case concerning the dismissal of a CFO of Volksbank.read on
Employers can determine rules on clothing and appearance in company regulations. What do employers have to keep in mind when setting such rules?read on