Copyright 201: Why Freelancers (And Employees) Should Want A "Portfolio Use" Clause
Whether you’re an illustrator, a designer, a copywriter, a software engineer, a programmer, or a member of a myriad of other creative disciplines, you have probably thought, at the very least, of doing the occasional freelance gig. You’ve probably even done a couple of small jobs for local businesses or organizations with low budgets. But, allow me to present you with a hypothetical:
You’ve done contract work for half a dozen companies, and you’re really proud of the work that you’ve done. Now, you’re looking for something a little more stable and you’ve been called in to interview with a hip new company in just the right part of town. When you go in, what will you have in your portfolio?
I ask, because you may very well be barred from showing this potential employer anything you worked on as a freelancer.
Most freelancers work on contract and are called “independent contractors" by the Copyright Act. Because of this, companies who hire freelancers for creative work require them to sign agreements specifying that the work they are creating is a work-made-for-hire and that all copyright will vest in the client rather than the artist.
Normally, that’s not a big deal – you probably aren’t going to get a lot of calls to sell copies of Company XZY’s corporate logo. But, public display and performance is one of the rights controlled by copyright – meaning that the client in this case controls the right to show your work to other people. In theory, this means that your portfolio is infringing the copyright your client holds in the work you completed for it.
To be honest, there haven’t been any notable lawsuits regarding this use – clients generally don’t seem to care all that much about portfolio use except in some specific cases – which I’ll get to in a moment. Moreover, there is a pretty strong argument that a portfolio use would fall under the fair use defense, though I’m not aware of any actual ruling to that effect. That said, I have never been an advocate of relying on the likelihood that someone won’t bother to sue; I would rather see something in that contract that prevents the lawsuit from ever happening.
Enter the “portfolio use" clause; it’s a simple addition to your freelance contract that reserves to you the right to show the work you’ve completed for clients in your portfolio. For most clients, this is going to be a non-issue; they’ll be happy to sign off on the use, and you can be certain that you won’t get sued down the road.
So, what does it mean if a client doesn’t want to sign off on a portfolio use clause? It could mean a couple of things. It could mean that your client doesn’t really understand what you’re asking, and that you might need to explain more clearly what you want and why you’re asking for this. It could mean that your client has a product or service coming out for which you’ve done some work and doesn’t want any of that work leaked before the actual release. It could mean any of a number of other things, some good and some bad.
In my personal opinion – as a former freelancer, rather than as an attorney – a portfolio use clause is a must-have. Freelancing is a very competitive field, and actually landing a salary job is even more difficult. Why would I want to add more hurdles by having to keep some of my best work out of my portfolio?
What, then, about the salaried employee? The title says that a portfolio use clause could be helpful there, as well, right? How is that situation different from the freelancer’s?
The short answer is that an employee can put a lot of information about that job on his or her resume. Freelancers can’t really have a resume made up of a list of every single client for whom they’ve done work in the past, but an in-house creative can put a lot of detail about that single gig where he or she will have done more than one creative project.
Does that mean an in-house creative shouldn’t want a portfolio use clause? No. It may be harder to obtain, though, and not necessarily worth the effort if demanding it will cost you the job. There is a difference between doing freelance logo designs and working in-house at an ad agency. The ad agency has a certain expectation that outsiders will see all work that comes out of the agency as the agency’s, rather than as that of individual employees.
If you really do want a portfolio use clause in your in-house employment contract, and your potential employer is balking, you may be able to compromise with some sort of non-compete or temporary non-disclosure agreement. You could, for example, agree not to compete with your employer for any clients belonging to your employer at the time of your departure or to stay out of a niche area that provides your employer’s bread-and-butter. Or, you could agree to not show work done for the employer for a period of time after you leave. There are a number of ways in which you can protect your employer’s interests without permanently sacrificing your ability to show your work to future employers and clients.
In the end, most creatives get by without a portfolio use clause simply by not bringing the issue up. They and their clients don’t realize how problematic this situation is, and everyone just goes along without raising a fuss. Adding the clause, though, provides certainty and avoids potential problems – I mean, you have a standard agreement that you’re having your freelancing clients sign, right? How hard is it to add one more little clause to give yourself some peace of mind?