Board Member Q&A: Chris Kennedy


Tell us a little about yourself.

I'm a video producer at Digital Bard , working on videos at all stages of production for tourism and entertainment clients as well as local and non profit companies. I've been working in film and video since 2005 when I got my first job as a production assistant on the low-budget thriller, Blur in Philadelphia. I've enjoyed a varied career at all levels and type of video productions.

How long have you been on the board? How did you come to be on the board? Tell us about your chair position.

I've been on the board since briefly after a joined Digital Bard in 2015. I thought it would be a good way to meet others in the creative industry and to give back. I myself had met my current employer at multiple AAF events years before applying at her company. I've continued to stay, moving from the role as membership chair to treasurer and now to president because I feel the organization is a great asset to the community and I would like to see it help grow and flourish.

Any exciting news or changes we can expect to see from the club?

For me, this year is all about mixing things up a little bit. We're trying to introduce some new ideas into the mix and bring some old ideas back in order to provide the best experience we can for our members.

How about a little known factoid about you…

While many at this point know I'm a huge comic book fan, but what they may not know is that my comic book collection numbers close to 20,000 books including a Stan Lee-signed copy of X-Men #1.

Sponsor Spotlight Q&A: Lisa Gorham Creative


Tell us a little about your company.

In 2015 I launched Lisa Gorham Creative, a multi-disciplinary graphic design studio with a focus on brand and identity development. I collaborate closely with my clients to help build brand success through strategy, thoughtful conceptualization, execution, and attention to detail.

Who are your customers?

Over the years I’ve had the privilege of collaborating with some incredible clients in a multitude of industries, including: apparel companies, real estate agencies, vineyards, design and build construction, investment and finance, health and beauty, e-commerce, small business, corporate, higher-education institutes, and non-profits.

What is the best part of what you do? Most challenging?

It’s hard to choose just one thing that’s the best, but if I have to, I’d say my clientele. I’m lucky to have some pretty amazing clients—they understand who their company/organization is and truly care for their brand’s success. They love to be a part of the creative and strategic process on each and every project. Because of this great chemistry I get to do some pretty cool stuff.

My biggest challenge would probably be my struggle with turning off, mentally, at the end of the day. I find it hard to leave work in the studio and out of mind. In the evenings I often myself contemplate concepts and ideas and even sneaking in more sketching time when I should be recharging. The creative mind needs a healthy break on the daily... I’m working on it.

What made you choose to be a sponsor of the AAF-GF?

I’ve been a member of the AAF-GF since 2005. I’ve been lucky to serve on its board, volunteer for several committees at the local and District level, and have attended numerous AAF educational and social events. Over these many years I’ve formed countless friendships and connections—not only with local AAF members, but also at the District and National levels. It is because of the generosity of volunteers, sponsors, and club leadership that our club exists, continues to grow, and is able to provide the benefit of those connections and friendships. 

I want to see our club do great things at the local, district, and national level, flourish because of its hard work, and to inspire its members, local businesses, and other organizations. This is why I choose to be an active member, volunteer, and sponsor.

How can people get in touch with your company to learn more?



Any industry advice you can pass along?

Always challenge yourself and never take the easy way out. Aim to do something great.

Sponsor Spotlight Q&A: SOS Safe Ride


Tell us a little about your company.
SOS Safe Ride is the flagship program of the local nonprofit The Safe Ride Foundation, which is a nonprofit organization working to end drunk driving in Frederick County and parts beyond.  SOS Safe Ride tries to eliminate a potential drunk driver's final excuse of "I need my car" by providing an easy and affordable way to transport customers home, but within their own vehicles.

Who are your customers?
Our customers and clients are those who enjoy the nightlife. Young professionals who understand the dangers/consequences of drunk driving, and are responsible enough to do their part to prevent it.

What is the best part of what you do? Most Challenging?
The best part is by far the feeling when get when someone shows appreciation for what we're trying to do for Frederick County, in other words, we love when people simply "get it".

The most challenging?  While we absolutely love every one of our clients, one can imagine the challenges that come with having a clientele that is intoxicated 100% of the times that they call you.  Always makes for a fun, sometimes interesting evening.

What made you choose to be a sponsor for the AAF-GF?
One of our volunteers is helping to coordinate the event and we loved what the event is all about, we're excited to be a part of it!

How can people get in touch with your company to learn more?
Feel free to call our office at 240-722-7422, or download the SOS Safe Ride app on Android or iTunes.

Any industry advice you can pass along?
For the transportation sector, convenience is key.  At the end of the day, what you're truly selling is "Time".

Board Member Q&A: Jessica Patterson


Tell us a little about yourself.

My name is Jessica Patterson. I am the owner of Jessica Patterson Photography, an architectural and portraiture studio serving the DMV and beyond. 

How long have you been on the board? How did you come to be on the board? Tell us about your chair position.

I joined the board in May or June of this year. Last year I was approached by AAF in regards to joining but I had to decline. Currently I serve as the Awards Chair. My job is to throw the best party AAF has ever seen.

What’s your favorite project you’ve been involved with or your most memorable moment with AAF-GF?


Any exciting news or changes we can expect to see from the club?

This year the club is determined to shake things up and stop the status quo. Let’s get weird and unique and keep things fresh!

How about a little known factoid about you…

I sleep eat.

Sponsor Spotlight Q&A: Origin Design Co.


Tell us a little about your company. 

Origin Design Collective is a multidisciplinary creative studio, cultivating lifestyle brands from the inside out. My approach is very hands-on and collaborative with the client, working to get to know their business, voice, style, and hopes, creating their own personal alchemy for success. Through branding, Origin aims to bring clarity to the client’s purpose by deep diving into their “why.” For start-ups, so many great ideas and aspirations die at the beginning. I want to be part of the team that takes their passion and transforms it into visuals. Seasoned businesses often get wrapped up in the money, followers, reputation, and routine so that they forget what made them excited in the first place. I’d like to get those people back to that place of reason and fulfillment and start from there.  Origin is my business, but what’s very important about this company is that the ebb and flow is that of the client’s needs. I’ve crafted a team of specialists in their field, from a copywriter, office administrator, web developers, illustrators, and secondary designers. I don’t want to ever stifle a client’s vision, so it’s important that they have access to the some of the best professionals. This is known as The Collective.   

Who are your customers?

They are some super cool people! I am finding as I grow that my clients span from all over the map, but are similar in that they are small businesses, solopreneurs, and start-ups (more specifically lifestyle brands). These are people that want their services or products to better impact the lives of those around them. The social influencers, the tinkers, and thinkers, they are smart, progressive, calculated risk-takers. They are adventurers and pioneers in their crafts. My own fire is constantly being reignited working with them every day. 

What is the best part of what you do? Most Challenging?  

The best part about being my own boss is the freedom and flexibility. I love that my salary's ceiling can be however much work that I put in. I love that I can work from my couch, office, desk, friend’s office, or coffee shop. I can be out with a cold AND still be able to travel in the same year. I can make time for things in life that matter most; I don’t have to turn down lunch dates with my family. I also appreciate the freedom of what services I can offer, that I can focus on quality instead of quantity, and take on clients and projects from all over. For me, it's about creating a healthy lifestyle. There’s quite a few challenges, but the most consistent one I face is turning it OFF. I tend to do a lot of my heavy-lifting during more standard work hours, but at night is when it’s quiet and my email stops pinging. It’s really hard for me not to stay up all night.   

What made you choose to be a sponsor for the AAF-GF?

I have been involved with AAF-GF in cycles throughout the past few years. I am drawn to this creative community because it’s constantly moving, evolving and providing a great network of like-minded individuals. I also really enjoy the efforts to reach nearby students.   

How can people get in touch with your company to learn more? 

I just recently created a Facebook page and Instagram account that I plan on being particularly active on. But feel free to shoot me an email!   

Any industry advice you can pass along? 

Surround yourself with people who are better than you, that care as much as you, and that challenge you in healthy ways. You are the sum of consistency. That includes the types of people you are around every day, so I think it’s best to spend your time wisely here. Hire people to do the things you suck at. Reach out to those people in your circle (or outside of it) for advice when you don’t know the answer. Whether you are a one-man/woman show or a team of 300, you need to have the right people in place to make amazing things happen. And they will happen. 

Samantha Jones

Owner & Designer

304.671.4635 |

Board Member Q&A: Jacob Brain


Tell us a little about yourself.

My name is Jacob and I am a marketing strategist at New North. My role at New North is to work with companies to build a clear and concise message about their product/service and to get that message out to the right people in the right place at the right time and drive leads to build their businesses. That same core is true with my role at AAF which is why I am so excited to be a part of the team here building the advertising community in Frederick.

How long have you been on the board? How did you come to be on the board? Tell us about your chair position.

I actually just joined the AAF-GF board in early August, so I am still pretty new to the position. I have been a part of AAF for a while now, and when they were looking for a new Membership Chair I was recommended by one of the previous presidents.

As the membership chair I am responsible all things around membership, so you will see me at events talking to new and potential members as I work to grow the AAF community.

What’s your favorite project you’ve been involved with or your most memorable moment with AAF-GF?

I am still just a few months in to the position so I don’t have too many stories to tell (yet), but my favorite part of working with the team here is the people. There are some really smart and experienced advertisers both on the board and the community at large, and it has been great to get to know them better.

Any exciting news or changes we can expect to see from the club?

While we already have a great community and benefits to being a part of it, we have been working on expanding that further with more relevant events, additional advertising options, and opportunities to meet others who can be a part of taking your business to the next level.

How about a little known factoid about you…

I am actually the fourth in a line of Jacob Brain’s which is unique. Because of that I am (pretty much) legally obligated to have a son and name him Jacob Brain V. Either that or be excommunicated from the family.

Sponsor Spotlight Q&A: Coronation Media


Tell us a little about your company.

Coronation Media was established in 2012 as a full-service video & animation studio led by design principles. We focus on developing promotional materials and content ranging from broadcast commercials and animated explainers to long-form documentaries.

Who are your customers?

Our clients span a wide range of corporate and non-profit, with a specialty in faith-based organizations.

What is the best part of what you do? Most Challenging?

We love the moment when a client is proud of their video and it becomes a key part of their marketing, brand story, and culture. We’ve always emphasized the collaborative nature of the industry and give great importance to the expertise of our clients: They know their field. The challenge is then to learn everything we can about our clients’ industry, mission, and goals so we can authentically represent them in the best possible creative way.

What made you choose to be a sponsor for the AAF-GF?

We’ve been in the Frederick area for over six years, but have only recently gotten involved locally. We’ve quickly come to love the community here and are grateful for their support. We’re happy to give back!

How can people get in touch with your company to learn more?

You can see examples of our work at, email us at, or call us at 301.447.4128.

Any industry advice you can pass along?

We make it a point to learn and improve every day. The creative industry is something that’s never stagnant. It requires continued updates to equipment, software, trends, and creative approaches.

Sponsor Spotlight Interview: Collective Church

In Kind Sponsor SILVER: Donation of Lighting Equipment, Pipe & Drape for the 2019 American Advertising Awards.


Tell us a little about your organization:

Collective Church launched in September of 2017. We are a “church for the rest of us” and this means that if you have never been to church, walked away from church a long time ago, or are struggling to find a church you connect with — Collective was started for you.

Who is your demographic?

Anyone that is looking for a safe place to experience God and faith. It doesn’t matter age, race, or socio-economic status — our city is a diverse mix of people and we long for Collective to mirror that.

What is the best part of what you do? Most Challenging?

We have a unique opportunity to show people what the grace and love of God looks like in a way that many people have never experienced before. Watching people take steps closer to God is what it is all about.

The most challenging part is that we know that Collective is just one church and the needs of our city and the amount of people in our county far outweighs our reach. We feel burdens that we often cannot meet.

What made you choose to be a sponsor for the AAF-GF?

One thing that we strive to do as a church is to love and support not just our interests, but also the interests of our people. AAF-GF is an organization that is near and dear to many of our friends’ hearts and we want to support them and what they do to the best of our abilities. Plus, we love our city and the businesses that make it special and we will do all we can to support those organizations.

How can people get in touch with your organization to learn more?

The best way to learn more about Collective is to head to:

Any industry advice you can pass along?

Never forget that people have stories and their stories matter. It isn’t just about a church, a small business, or an advertiser — it is about the single mother who is fighting to make it work on her own, the student who is looking for purpose as they head off into adulthood, a family that just moved to the area and is wondering if Frederick will ever be “home.” When we lose sight of people and their stories, we lose sight of our purpose.

Board Member Spotlight Q&A: Cecelia Lee

Tell us a little about yourself.

I graduated from Hood College where I studied graphic design (with my mom!), video production, and ceramic arts. I worked as a graphic designer at the Frederick News-Post where I partnered with the Frederick Arts Council to conceptualize and design the local arts magazine, Fred Aesthetic. I am currently the Senior Graphic Designer at Sass Studios (formerly Kalico Design). As part of the Sass Magazine team, I get to meet and learn about a bunch of boss ladies in the area! I have also served as a company member at Maryland Ensemble Theatre for the past two years. As a company member, I do set design, puppetry construction, prop design, and large-scale projections. Some of my MET credits include Frankenstein, Oedipus Rox!, and Peter and the Starcatcher. Aside from designing, I enjoy the local music scene, theatre arts, Pinterest projects, and eating spicy food.

How long have you been on the board? How did you come to be on the board? Tell us about your chair position.

This is my second year serving on the board. I became a member through my job at the Frederick News-Post. I attended a few of their events as well as entered some work in the Awards show. The next year, I was nominated and voted onto the board!

I previously served as the 2017-18 Sponsorship Chair. I am currently serving as the 2018-19 Communications Chair. I get to run all of the social media accounts for the club as well as assist in marketing events. Fun stuff!

What’s your favorite project you’ve been involved with or your most memorable moment with AAF-GF?

I am LOVING doing the social media for the club. It’s been a lot of fun sharing articles, photos, and member news with everyone.

Favorite memory is joining the décor committee for the American Advertising Awards. The theme for the event was inspired by paper cranes. We folded THOUSANDS of paper cranes that we hung throughout the event space! I learned origami from the experience, which is pretty cool!

Any exciting news or changes we can expect to see from the club?

We’re going to be exploring new ideas for events, including some pertaining to relaxation and stress relief since that’s a huge aspect of being a business professional!

How about a little known factoid about you…

I used to be on a competitive jump rope team called THE SKIP WIZARDS! I went to competitions in Disney World. I even have a team photo with my stats on it!

Freelance Isn't Free Act

An important law went into effect in New York City on May 15, 2017, regarding the retention of independent contractors or freelancers who are based in New York City.

The new law, called the “Freelance Isn’t Free Act,” gives independent contractors/freelancers a right to sue for double damages (and potentially triple damages in certain cases) if they are not provided with a written contract containing specified terms and are not paid by the date provided in the agreement or, if not stated in the agreement, within 30 days after completion of services under the contract. The law applies to any independent contractor with a mailing address in New York City if they are an individual or if they are a LLC/Corporation and there is only one person or owner of the LLC/Corporation. The law is unclear if it applies to the contractor/freelancer even if the work is not done in New York City.

The difficulty with the new law is how to determine if a contractor who’s an LLC or a corporation is just one person. An independent contractor agreement can include a statement that the contractor is only one person, but it is a question that may need to be asked during the vetting process.

The law has some requirements for the written contracts with independent contractor/consultants. The contract must be written and must include the following terms (at a minimum):

  • Parties’ names and mailing addresses
  • Itemization of services to be provided
  • The “value of services to be provided pursuant to the contract”
  • Rate and method of compensation
  • Date when the “hiring party” must pay the contracted compensation or the “mechanism by which such date will be determined”

While many contracts can be drafted to include these terms, there are other terms that should be included in any contract that are not stated here. This list is the absolute minimum requirements.

But the big problems with the law are these:
The law contains very steep penalties for late payment or non-payment. Complicating matters is the lack of a “good faith defense” for the hiring party. The law does not allow a hiring party to assert a good faith defense even if there is a legitimate dispute as to whether the work was completed at all or if the work was completed unsatisfactorily. In some cases, the penalties could be as much as twice the unpaid amount or late paid amount, plus interest, attorney’s fees, and court costs. This absence of a good faith defense is potentially expensive (and, I must note, runs counter to most employment law provisions, including in New York, for employees who make a wage claim where the employer has a good faith belief that wages are not owed).

There are penalties for not having a written contract. While this is easily addressed, the penalties are for not having a written contract are modest. The killer is if the freelancer can show not only was there no written contract but also that the freelancer was not paid or paid late. There is a potential for triple damages, plus interest, attorney’s fees, and court costs.

The law prohibits retaliation against freelance workers to exercise their rights under the law. For example, you make a mistake and failed to pay a contractor on time and they sue. Under the law, you cannot deny the freelancer a “work opportunity” or “future work” even if their work was mediocre or incomplete. Under this provision, you would have to carefully document why you are not choosing that freelancer again. In addition to a lawsuit by the contractor/freelancer, the Corporation Counsel of New York City could bring an action to enforce this provision and the penalty could be as much as $25,000 to New York City, in addition to any damages that would be paid to the contractor/freelancer.

If any member is planning to hire a freelancer/contractor in New York City, or currently has an active contract with a New York City contractor or freelancer, they should contact counsel on how to proceed to ensure compliance and avoid very hefty penalties for non-compliance.

About Matt Johnston
Matt Johnston operates his own law firm in Frederick with a focus on small business counseling, copyright and trademark law, and dispute resolution. Many of Matt’s clients are in the creative industries whose concerns overlap Matt’s practice areas. Matt focuses on providing practical legal advice to prevent legal questions from becoming legal problems. Matt has been described as an approachable lawyer and is always willing to listen and address client concerns tailored to the client’s way of doing business.

DISCLAIMER - The preceding article is intended for educational and informational purposes only. The article should not be construed as legal advice applicable in all situations. No attorney-client relationship is created through this article. If you need confidential legal advice, Matt is available for confidential and privileged consultations by calling 240-351-9944 or emailing

Member Spotlight: Samantha Jones

How did you get into your business? Did you grow up wanting to do this?

Growing up I wanted to be a dinosaur specialist, an actress, then a painter, then a marine biologist, then the next karate kid, then a WNBA superstar, then back to an artist, until I landed in design. One thing that they all have in common though is the need to constantly evolve. All involve a need for creativity, exploration, interacting with people and demonstrating work ethic.

I would also be just fine with being a stay-at-home Khaleesi, mother of pugs. (Game of Thrones reference.)

Design is a little bit of everything in one, so the days are never based on routine, which I seem to thrive off of best. It keeps things exciting and unexpected. You need to be creative, thinking outside the box and sometimes kicking it across the room altogether. You need to develop quick problem-solving and decision-making skills, along with the ability to work well with people—understanding what motivates and inspires them.

It’s such a necessary yet overlooked form of storytelling, which has some fun ambiguity behind it. But all-in-all, it’s rewarding to take people’s visions and help them grow with a brand that will last them through their various pursuits.

What is something you’d really like the club to know about you?

That I’m a creative who’s passionate about people and new experiences. I love to travel and can’t get enough of it. I would also love to dabble more in other artistic mediums like video and photography. If anyone ever wants to get together to casually create, let me know! I’ll bring Capri Suns.

Are you from Frederick originally?

No, I grew up in West Virginia but have become more integrated into the pack through AAF-GF, AIGA and other local design communities. Hey ya’ll!

How about a little known factoid about you…

I have three go-to accents in light of an awkward conversation: The Belfast accent, the Shakira voice and the dolphin call.

If you’re interested in joining our Member Spotlight, download the Q&A form and then email the completed PDF to

2017 Public Service Project: Federated Charities

This year’s AAF-GF club service project benefits Federated Charities in Frederick. We’re looking to help create new logo for Federated Charities to use in promoting their pilot marquis event: The “Art” of the Dog.

Federated Charities is hosting a silent auction of art – local artist renderings of its mascot Charity [the dog]. Local artists are creating their version of what charity [the noun] means to them in the form/shape of Charity [the dog], using whatever medium they choose (e.g. photography, sand, metal, paint, etc.). Renderings will be 2D, 3D, color, BW … whatever the artist chooses. Proceeds are to benefit Federated Charities in their continued support of Frederick County through free and deeply discounted benefits to the community and their tenants.

If you’re interested in being involved this year, or in future public service projects, email

2016-17 AAF-GF Sponsors

There are numerous ways to support the AAF-GF and gain exposure for your business through financial sponsorship and donation of services throughout the year. What a great way to get your company’s name in front of our entire membership and contribute to the club’s activities!

Email our sponsorships chairperson, Angelica Carter, for information on how to become an in-kind or cash sponsor:

Building a Better Agreement

In the past couple of months I have become involved in a number of disputes involving noncompete and non-solicitation agreements. The issue is not limited to local matters, but also on a national scale. The White House recently issued a report on the subject of noncompete agreements and the impact on the labor force and on the economy as a whole. From a business perspective, a noncompete contract is a useful tool to protect the business. However, the tool itself is a restraint on trade and is not always well received and, depending on the language, may not be enforceable. Analysis of enforceability is very fact dependent and may differ from one employee to another.

So let us imagine a marketing company focused on multi-media and online advertising with a dozen employees plus two partners who own the business. After the two partners, there is a creative director, three account managers, two graphic artists, three web designers/programmers, a social media marketing expert, and two administrative staff. The partners have all employees sign that same non-compete agreement that contains the following terms:

  • Noncompetition during the employment plus 2 years after the employment within 50 miles of the firm’s office in Frederick.
  • Nonsolicitation of company clients, former clients, or prospective clients for 2 years after employment

The above terms are not something I plucked out of the air and exaggerated, but are something that I see regularly in noncompete agreements and I have one such agreement sitting in a folder on my desk as I write this.

A quick recap of the law is necessary before we launch into an analysis of our fictitious marketing company and their noncompete. A 1973 Maryland case called Becker v. Bailey laid down the general standard: a noncompete agreement is enforceable: “if the restraint is confined within limits which are no wider as to area and duration than are reasonably necessary for the protection of the business of the employer and do not impose undue hardship on the employee or disregard the interests of the public.” The analysis is done in two stages. The first will look at time and geography, that is, how long does the noncompete last and how broad a geographic range the employee prohibited to work in. The second stage will look at a few other factors:

  • whether the person sought to be limited is an unskilled worker whose services are not unique;
  • whether the covenant is necessary to prevent the solicitation of customers or the use of trade secrets,
  • assigned routes, or private customer lists;
  • whether there is any exploitation of personal contacts between the employee and customer; and,
  • whether enforcement of the clause would impose an undue hardship on the employee or disregard the interests of the public.

Although not formally part of the analysis used by courts, I would also argue that noncompete agreements should be analyzed from the perspective of whether an employee’s work is a core function of the business. Finally, just as an informational matter, public interest would include matters such as medical professionals (courts really don’t like noncompete agreements for doctors), lawyers, accountants, or other public service professions. Public impact is unlikely to be a factor in noncompete agreements for marketing and creative personnel.

The most difficult aspect of a noncompete agreement is that the reasonableness of the agreement, and thus its enforceability, is highly fact dependent. Often times, when drafting a noncompete agreement, it is helpful to do the legal analysis in reverse, analyzing the risk of impact to the company before determining the scope of the time and geography factors. So with these factors in mind, let’s begin our analysis.

Creative Director: Outside of the two partners of the firm, the creative director is probably the single most important person in the company. She would have access to all of the work done by the firm, access to all of the clients’ information, access to all of the proposals sent to potential clients, and often has personal connections with current and former clients. She may also have a wide range of contacts with creatives at other marketing firms and the community. The creative director is a skilled professional, whose personal connections could lead her to not only successfully open and staff a new marketing firm, there is a distinct possibility that clients would leave her current firm and follow her to a new firm. Given her personal success and likely professional development to this point, the creative director would not likely suffer an undue hardship if she left. Clearly, she is the biggest competition threat to the firm. So looking the basic non-compete, a two year duration is probably acceptable. The 50 mile radius sounds reasonable but consider that 50 miles from Frederick encompasses parts of Pennsylvania, West Virginia, Virginia and Washington, DC. All of those markets would likely have a different clientele and outlook. So for our creative director, even 50 miles might a bit of a stretch, something more akin to 30 miles might be more acceptable.

Account Managers: Our three account managers can be analyzed much like the creative director except that their exposure to the entirety of the client list is probably smaller and their personal connections limited largely to their own accounts. These individuals likely have less experience, but have the potential to successfully compete on a smaller scale against the firm. While these employees are core to functioning of our firm and they are clearly skilled, the potential impact to the marketing firm is smaller than that of the creative director. Looking at the noncompete though, two years and 50 miles might be considered unreasonable on the face of the agreement. In this case, it might be more reasonable to lower the time, to perhaps 1 year and a 30 mile radius from Frederick. These limits correlate to the level of risk to the company. While the company would likely lose business if the account manager left and either set up a competing business or went to a different marketing firm, the company could survive much more readily. Additionally, the 30 mile radius would give the account manager the ability to travel a bit to work which would not likely be considered an undue burden.

Graphic Artists/Web Designers/Social Media Marketer: I grouped these three categories together because they represent skilled and knowledgeable workers, but with more limited interaction with clients. Certainly, these individuals will work with clients and will no doubt build personal relationships, but their exposure to the breadth of the company’s clientele is more limited. Often these individuals would be working on discrete tasks within an overall client relationship. Their skills transfer but if they left the company, the impact, while significant in the short term, is not threatening to the existence of the company. So from a duration aspect, one year might be acceptable but could be a bit on the long side, whereas 6-9 months might be more palatable. Geographically, even a 30 mile radius might be difficult, but the company could be more flexible. The company could limit the noncompete agreement to a smaller radius of 15 miles for 9 months, but a larger radius of 20 miles for 6 months. Again, consider the risk to the company these employees represent.

Administrative Staff: These staffers might be just out of college, relocating to the area, or they could be older workers whose main skill and functionality is focused on making the company run smoothly. Typically, these individuals will have limited contact with clients, limited skills in the marketing field (if any), and limited ability to effectively compete with the company. Furthermore, their skills and knowledge are not unique or directly related to the core functioning of the company. In the case of these workers, it is very likely that any noncompete agreement would be reasonable and could represent a burden on their ability to work. Certainly a 2 year noncompete agreement would be unenforceable, and even a 3 month noncompete agreement would be a burden.

Nonsolicitation Agreements
Generally, nonsolicitation agreements represent a safer mechanism to prevent competition from departing employees. A noncompete agreement expressly prohibits a person from forming a competing business or moving to a direct competitor in the market. On the other hand a nonsolicitation agreement expressly protects the clients and prospective clients of a business from being approached and poached by a departing employee, but allows the employee to perhaps work for a competitor if there is a limited market in the area. Many courts have looked a nonsolicitation agreements more favorably because the limitation is much more directly linked to a company’s business interests, after all, clients are the heart and soul of any business.

However, companies should take care to draft the nonsolicitation with specific definitions in mind. Companies may easily describe a current client as one who is actively engaged with the business. But the terms former clients and prospective clients need to be defined, usually with reference to a time period. The length of that time period should bear some relevance to the life cycle of a client contract. If the life cycle is a year or more, a two year nonsolicitation clause may be okay. If the life cycle is three months, two years looks pretty drastic.

Finally, companies should fully understand what a solicitation is or more specifically, what it is not. A former employee who posts on LinkedIn or Facebook an announcement that says, “I am working for company B now” is not a solicitation but a general announcement. Clients may or may not see the announcement and may or may not follow the former employee. The solicitation must be from the former employee and not a contact by a client to the former employee.

Key Takeaways
1. Noncompete agreements must only restrict an employee in terms of time and geography to the extent necessary to protect the interests of the company.

2. A company should assess the risks to the company associated with each employee or class of employees and draft noncompete agreements tailored to address that risk. One noncompete agreement does not fit all.

3. Noncompete agreements may adequately protect the company, but would still be unenforceable if they unduly burden the employee.

4. Nonsolicitation agreements should clearly define current clients, former clients, and prospective clients in order to be enforceable.

Note: This analysis is done using Maryland law using court cases. Other states have statutory laws that limit the use of noncompete agreements (California, for example, is particularly strict) and state court cases might use a different analysis.

About Matt Johnston
Matt Johnston operates his own law firm in Frederick with a focus on small business counseling, copyright and trademark law, and dispute resolution. Many of Matt’s clients are in the creative industries whose concerns overlap Matt’s practice areas. Matt focuses on providing practical legal advice to prevent legal questions from becoming legal problems. Matt has been described as an approachable lawyer and is always willing to listen and address client concerns tailored to the client’s way of doing business.

DISCLAIMER - The preceding article is intended for educational and informational purposes only. The article should not be construed as legal advice applicable in all situations. No attorney-client relationship is created through this article. If you need confidential legal advice, Matt is available for confidential and privileged consultations by calling 240-351-9944 or emailing

Avoid Jargon & Legalese

At its core, a contract is a written expression of a business relationship.

Like all good relationships, clear communication and understanding between the parties is essential for the relationship to succeed. Unlike our personal relationships, if a business relationship fails, we can’t just de-friend them on Facebook or stop following their Instagram account. A failed business relationship usually means someone is paying another person money, and all parties are paying lawyers to resolve the dispute.

(Not that personal relationships don’t end up in court…but that’s a horse of an entirely different color.)

Understanding the terms of a contract means understanding the duties, rights, and procedures for all parties. Understanding leads to compliance and the benefit of the contract. So, if one of the fundamental elements of contracts is making sure the parties to the contract understand the contract, why do so many contracts fail at this basic requirement?

Outside of contract drafting errors, the two main culprits are industry-specific jargon and non-industry-specific jargon used by the contract drafters—what everyone calls “legalese.”

If a dispute about a contract arises and it must be decided by a court or by an arbitrator, and the parties are not clear about the meaning of key terms, there are three possible scenarios based on what the parties knew and when they knew it:

  1. Each party attached a different meaning to the term and each party was unaware of what the other party thought the term meant.
  2. Each party attached a different meaning to the term and one party (but not the other) was aware of what the other party though the term to mean.
  3. Each party attached a different meaning to the term and both parties were aware of the other party’s meaning attached to the term.

In the second scenario, the contract would be interpreted according to the party who was unaware of the other party’s definition. But, in the first and third scenarios, it’s entirely possible that a court or arbitrator could find that no contract was made because there was no actual agreement as to the terms of the agreement. Such a finding could be disastrous.

The best course of action is to ensure that all parties are operating on the same set of key terms definitions of industry-specific jargon and legalese.

Jargon is the language of an industry, usually a series of shortcuts to words and concepts common used in the business. Legalese is not actually jargon, but rather a style of writing where too many concepts are buried in a given sentence or explained in an unnecessarily complex way. Of course lawyers have their own jargon, and it almost certainly has no place in contracts written for non-law businesses.

Most advertising and marketing professionals are not working for other advertising or marketing firms. The usual client is someone from another line of business. This fact alone means that marketing firms and their clients must make sure they’re speaking the same language in order to come to an understanding about the contract for services.

This is where jargon comes into play.

For example, a “comp” to a marketing or design firm means something very different to someone in the restaurant or hospitality industry. If a contract between a designer and a restaurateur says that the client will be provided with three comps, a restaurateur may think they’re getting three things for free, rather than three different design ideas.

So how do design firms avoid these kinds of jargon based ambiguities?

The firm could include as part of the contract (or during the negotiation and assessment phase) a simple glossary of industry terms. The glossary should contain terms the design firms finds itself regularly defining for all clients. If the terms are important in the contract, you can either include the glossary as an exhibit to the contract, or include the glossary as a part of the contract text.

Legalese is even easier to avoid—simply don’t accept a contract drafting from your lawyer that you don’t understand. More importantly, don’t accept work from your lawyer that your clients can’t understand.

If a client comes back to you and says, “We don’t understand this term in your contract,” then you have a red flag to have that term re-written. Often legalese is the product of how lawyer(s) were trained to write.

A little known secret of law school is that legal drafting classes focus on persuasive writing intended to be read by judges and other lawyers. They’re written with a certain style and little attention to readability. Very little law school training goes into writing for the vast majority of a lawyer’s work, so writing to and for non-lawyers with readability is a significant concern.

Legalese is a style of complex writing that does not lend itself to easy comprehension. Contracts don’t have to be written that way. Some lawyers will tell you that the legal concepts required in some contracts cannot be written in non-legalese. Balderdash! (And other not so polite curse words.) I debunked some of those myths here, and included a discussion of how you can measure readability.

If you have a lawyer draft a contract for you, and you don’t understand the terms, you should demand the lawyer re-write the contract so you do understand (or contact an attorney who will take the time to write the contract so you understand in the first place).

Many lawyers don’t like to write contracts in “plain English” because it’s hard to do, as it runs counter to our training. Writing in “plain English” seems to imply they’re not needed as counselors any more.

Good contracts do two things well for all businesses:

  1. 1. Clearly describe the business relationship so everyone understands, and
  2. 2. Speed the sales process by avoiding unnecessary back and forth about contract language.

Because a contract is all about the relationship between the parties, make sure all parties understand the contract. Start the relationship from a solid understanding, not a “guessing about the other party’s understanding” and not from assumptions on your part.

About Matt Johnston
Matt Johnston operates his own law firm in Frederick with a focus on small business counseling, copyright and trademark law, and dispute resolution. Many of Matt’s clients are in the creative industries whose concerns overlap Matt’s practice areas. Matt focuses on providing practical legal advice to prevent legal questions from becoming legal problems. Matt has been described as an approachable lawyer and is always willing to listen and address client concerns tailored to the client’s way of doing business.

DISCLAIMER - The preceding article is intended for educational and informational purposes only. The article should not be construed as legal advice applicable in all situations. No attorney-client relationship is created through this article. If you need confidential legal advice, Matt is available for confidential and privileged consultations by calling 240-351-9944 or emailing

Independant Contractor or Employee? Misclassification can Be Costly

One of the hottest topics in employment law is worker misclassification; that is calling certain workers independent contractors when they should be classified as employees. The cost of misclassifying workers can be brutal. FedEx recently settled a misclassification suit involving FedEx Ground drivers for $228 million. Uber, the darling of the on-demand service industry, is actively defending a massive misclassification class action lawsuit and suffered several procedural set-backs in recent months. If Uber loses, its entire business model may crash, along with its multi-billion dollar valuation.

“But,” you say, “I am just a small business, it can’t happen to me.” Well, yes and no. Yes, you won’t be subject to ten figure damage awards or settlements. But no, a misclassification action could still put you out of business. The potential damages for misclassification come in two, independent forms: (1) back pay and benefits owed to employees and (2) back tax withholding, worker’s compensation premiums, and unemployment insurance payments owed to the state. A single misclassified independent contractor could cost you tens of thousands of dollars in damages and fines, plus legal fees.

Resolution of the independent contractor vs. employee question is tricky because the analysis is very fact specific. By some counts there are as many as 48 factors to consider when determining if a worker is an independent contractor or an employee. The burden of proof is always on the employer, the business, to prove a person is an independent contractor. Finally, the government has a bias to finding an employee relationship.

In some cases, workers may bring an action against an employer under state wage laws alleging they were improperly classified as contractors when they should have been employees. In other cases, the issue arises when the State wants to collect back worker’s compensation or unemployment insurance premiums. In Maryland, courts often look at the following five factor test: (1) whether the employer selected or hired the worker, (2) whether wages were paid to the worker, (3) whether the employer had the ability to discharge the worker, (4) whether the employer has the ability to control the worker’s conduct, and (5) whether the worker’s work is part of the employer’s regular business. Of the five, Maryland courts say factor 4, the control test, is most important. However, courts are beginning to look more closely at the fifth factor, the degree of similarity between the worker’s work and the employer’s business.

Of course, control does matter greatly, but in the fifth factor may carry more weight within the advertising and creative industry. One challenge is the lack of industry knowledge among the government investigators. Advertising services can take so many overlapping forms, it may be difficult to parse the distinction between a company’s business and the work a contractor is doing. For example, few investigators could describe the differences between a web design company that provides content for clients and a content marketing contractor, or between an SEO company and an a Google Adwords specialist.

Companies can increase their protection, and contractors can help their clients, by actively documenting the relationship. Of course, having a state of the art independent contractor agreement is a good start, but it is no longer enough. Some documentation beyond a contract can help:

  • Ask for current, active client references, then actually calling and documenting the references.
  • Determine if the contractor has employees of its own.
  • Ask for the contractor’s advertising or promotional materials, indicating the contractor is actively soliciting other business.
  • Ask for an EIN and a copy of an operating agreement or corporate bylaws.
  • These documentation efforts can go a long way to helping demonstrate independent contractor status.

To close, companies that use independent contractors should keep three factors in mind:

  1. The government is biased toward finding employee relationships over independent contractor relationships and the business has to prove independent contractor status.
  2. The closer the contractor’s work is to the employer’s business, the greater the risk of stepping over the line into employee status and all its attendant obligations.
  3. The facts of each situation or each contractor engagement are different and a separate analysis and documentation effort should be undertaken.
  4. If you would like assistance in analyzing your independent contractor relationships or to assist you in preparing a documentation checklist, please contact an attorney.

About Matt Johnston
Matt Johnston operates his own law firm in Frederick with a focus on small business counseling, copyright and trademark law, and dispute resolution. Many of Matt’s clients are in the creative industries whose concerns overlap Matt’s practice areas. Matt focuses on providing practical legal advice to prevent legal questions from becoming legal problems. Matt has been described as an approachable lawyer and is always willing to listen and address client concerns tailored to the client’s way of doing business.

DISCLAIMER - The preceding article is intended for educational and informational purposes only. The article should not be construed as legal advice applicable in all situations. No attorney-client relationship is created through this article. If you need confidential legal advice, Matt is available for confidential and privileged consultations by calling 240-351-9944 or emailing

Celebrating an Advertising Pioneer

District Two AAF Introduces First Annual Legacy of a Lifetime Awards

NEW YORK, NEW YORK, August 29, 2016 – Advertising legend Patricia Martin was a force to be reckoned with. Anyone in the industry will tell you that – with a smile and a nod of the head. A true industry pioneer, Ms. Martin’s life is now being commemorated through the first annual Legacy of a Lifetime Awards celebration.

The gala event is slated for Monday, Sept. 26, kicking off Advertising Week, at The Pierre on east 61st Street. Hundreds of advertising leaders and executives, along with District Two (D2) AAF member chapters and student chapters from colleges and universities throughout District Two are expected to be in attendance. District Two encompasses New York, New Jersey, Pennsylvania, Delaware, Maryland and Washington, DC.

During a long and illustrious career that earned her a place in the Advertising Hall of Fame – one of the first women to be inducted – Ms. Martin was immersed in many aspects of the advertising industry. One of the very first women to break into the business, she began her career as a copywriter and retired as an agency principal.

When women were first being hired as product managers, Martin was their champion and mentor. Those leadership skills took her to the top position in the American Advertising Federation (AAF) – chair of the 50,000+ member organization. Martin passed away in 2014.

Patricia Martin; D2 conference; Buffalo, NY (2013)

Patricia Martin; D2 conference; Buffalo, NY (2013)

D2 of the AAF, to which Martin belonged and served in various capacities for decades, is memorializing Pat Martin’s accomplishments by presenting four Legacy of a Lifetime Awards to industry notables who are currently creating their own legacies. The awards are for creativity, diversity, education and leadership. Martin was a lifetime member of The Ad Club of New York and the Advertising Women of New York.

Like Martin, those chosen to be honored with the first Legacy awards have had a tremendous impact on the growth, impact and integrity of the advertising industry. John Osborn, president and CEO of BBDO since 2004, has been chosen to receive the Pat Martin Creativity Award. Osborn is widely recognized for his ability to marshal the talents of the agency’s multi-disciplinary teams as they create compelling cross-platform communication programs. Under his direction the agency ‘s commercials are consistently among the most popular viewed during the Super Bowl.

Louis Carr, president of media sales for the BET Networks, is to be the recipient of the Pat Martin Diversity Award. One of the most influential and prominent African-Americans in media and marketing, Carr has hired more minority sales professionals than any other executive in the industry. Throughout his 15 years at BET networks, Carr has delivered over $4.5 billion targeted to African-American consumers. And the Louis Carr Internship Foundation provides motivated minority students professional experience in top companies while earning money for college.

The Pat Martin Education Award has been designated for Leslie Winthrop, co-founder of AAR Partners North America. Known as the “Madison Avenue Matchmaker,” Winthrop’s firm has successfully placed over 1,500 advertisers with the most appropriate communications agency for their specific marketing needs. She has also been heavily involved in District Two AAF, chairing the National Student Advertising Competition for the past three decades.

Advertising Hall of Fame honoree and industry great David Bell has been chosen to receive the Pat Martin Leadership Award. Four years into his advertising career he was named president of Knox Reeves Advertising, and would go on to lead Bozell Worldwide as president and CEO before becoming CEO and chairman at True North Communications. He later served as president of The Interpublic Group of Companies. Bell has also held key industry leadership positions, including serving as chairman of the 4As and two-time chairman of the AAF.

Sponsors to date for the event include BBDO, and The Interpublic Group of Companies, and BET.  Other supporters include Time Inc., Ogilvy & Mather, The Ad Council, The American Association of Advertising Agencies, Wired, The Advertising Club of New York, Havas, CP+B, Access Confidential and Spotify. Sponsorship opportunities and program ads are still available.

Individual tickets cost $500 and a table of ten is $4,500. To sponsor, support or attend, go to or contact Legacy Chair Helen Lavelle at 570-969-6000.

American Advertising Federation Greater Frederick Partners with Frederick County Bank


FREDERICK, MD – After years of patroning what used to be local Farmers & Mechanics bank (now PNC), the American Advertising Federation Greater Frederick Chapter President Adrienne Lawrence announced formally switching financial institutions to join local Frederick County Bank as a way to further demonstrate the American Advertising Federation Greater Frederick (AAF-GF) club’s commitment to Frederick’s commerce.

“The board and I are really excited to bring more business back to the Frederick community and are already planning more ways to work with other area businesses to strengthen the area’s resources,” said Lawrence. “We are proud to support the AAF-GF and look forward to more ways we can work together in the near future and beyond,” said [insert name], [insert title] of Frederick County Bank.

About Frederick County Bank
Frederick County Bank is an independently owned community bank founded in 2001. It was created by a group of local business leaders specifically to bring highly personalized, responsive banking services to Frederick’s families and businesses — the kind of personal attention that only a locally owned and managed bank can provide. For more information visit

About AAF-GF
American Advertising Federation of Greater Frederick is the regional professional organization for individuals who work in advertising, marketing and related fields within central and western Maryland. Established in 1989, AAF-GF is one of 200+ local chapters of the American Advertising Federation (AAF), the national organization that acts as the “Unifying Voice for Advertising.” AAF is divided into 15 districts and our club is part of District 2, which includes New York, Pennsylvania, New Jersey, Maryland, Delaware, and the District of Columbia. For more information visit