PORTFOLIO: What's yours is NOT theirs.
Artists get a lot of leeway in business law and tax law. We won't mention that some of that leeway is due to ignorance (e.g. "I don't know how you do it, but we want you to make some of that magic you do.") but that's okay. It makes up for some of the hobble-de-hoy we have to deal with, like customers who love the work but can't afford to pay for it and expect to take it anyway. Every now and then, employers and clients attempt to strong-arm their creatives, using various scare tactics and threats to keep us from displaying our work in a portfolio or online. Now, if you display that ad you designed for XYZ sport drink to sell sport drinks; then you are violating all kinds of laws. But if you display that ad because you are trying to get more advertising work, then the law is on your side and no one can stop you. EVEN if you were an employee when you created it, you are allowed to display that ad under your name (e.g. on your website) as long as you don't contact your employer's client and try to steal the business. If you call the client with intent, you are violating torte law, committing tortious interference (or as one pompous git said while his call was being recorded, "Don't tell Susan I called because what I'm doing is called torturous interference [sic]." Don't do it.
As a designer, you will encounter confidentiality agreements and non-compete agreements. Confidentiality agreements are common when dealing with new products or inventions and big agencies like NASA or the Department of Defense--read them and make sure you agree to the terms. Cross out what you don't like and initial it, but don't be overzealous because you will lose the work (just like you can tell a customer who will be more trouble than he's worth, they can tell the same about a contractor). I have my share of nice jobs I can't display because they are governed by confidentiality agreements with various agencies (see page 80 of my book Start and Run a Creative Services Business for more information on doing business with the government for both USA and Canadian business).
Non-compete agreements are dogs that won't hunt. They are a lot of puff and smoke and play on your worst fears--don't let them. Of course your employer doesn't want you to show your work because once you're gone, he's got to find someone else who can do the same work or risk losing the client. Why is he powerless? Because the law views an artist's portfolio the same as a resume; proof of job experience and evidence of work done. Here in the free enterprise system, it's a BIG no-no to interfere with someone making a living, even if the work was done under a work for hire agreement. Here's an interesting conversation between a couple of suits desperate to get "the talent" to sign a non-compete agreement before he walks out the door.
In the state of Washington, the law was recently clarified. Now, a non-compete agreement in that state must show "a consideration" for the party signing the non-compete. In other words, there must be some benefit for the person who agrees not to compete in the same industry. The laws vary from state to state. But again, as an artist and designer, there's that leeway; the rule of law does not apply to showing your work to get more work. The term "my intellectual property" applies to everything you create even when you sell some of the rights to someone who wants to use or display it. If you sell a painting and the buyer damages it while it's in his/her care; you can get a court order to retrieve the work of art and they will have to pay to have it restored. Then you get to keep it if the court so rules.
When I first started out, I had worked at a place for 3 years when the owner approached the sales staff, photographers and designers to make us sign a non-compete agreement. I refused and so did one other guy--both of us were art directors and top dogs. Arf. What happened? Absolutely nothing because we were the talent they couldn't live without. About a year later, one of the sales staff was sued for breach of her non-compete agreement when she took a job with the competition a few blocks away. She won on the grounds that 1) she wasn't calling on her previous employer's clients and, 2) her employer was not allowed to prevent her from using her previous experience for monetary gain even though she was selling in the same industry. The bottom line is everybody is entitled to make a living.
My advice to anyone who is being threatened by a previous employer, a past client or a work for hire arrangement; send a short, polite note that the court views your portfolio the same as a resume and that it provides proof of experience to potential clients. Don't even toy with the idea of removing that piece from your portfolio. I am not an attorney, but I've been there and done that in living color and real life. Honest.
My Second Edition is out, updated and with an extended resource guide. Whether you are employed or freelancing, Start and Run a Creative Services Business will help you avoid the pitfalls of being a trusting creative in a dog-eat-dog world. I've shared all my mistakes and wild adventures both as an employee and as a freelance designer to help you avoid some of the pitfalls. My book prepares you for some of the unscrupulous characters you will meet disguised as customers and vendors and how to protect yourself. And you don't want to miss the chapter 9 Sure Signs You're Not Getting Paid. You can read excerpts here and view my online portfolio, plus download my first promotional piece, Melon at the Plaza, NYC. Good luck and make great art.
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As always, Susan, you've banged the nail on the head, and this is particularly timely: So many creatives are in and out of professional situations.
It is typical with giant corporations that their boilerplate contractors' agreements attempt to limit workers' rights. I have not had an instance in years, though, where a company's attorneys did not say, "Yes, you're right - this is a different situation." At which point the offending language is excised.
When in doubt, ask for the "consideration" and find out just how much your silence is worth.
Great information, I will definitely feel more confident in displaying past works, and the fact you can cross out lines on contracts is a great thing to know. You've just gained a fan of your blog.
Thanks,
Anthony Proulx
You claim
"you are allowed to display that ad under your name (e.g. on your website) as long as you don't contact your employer's client and try to steal the business"
Do you have any sources to back this? Is this in your state only?
SDK responds:
Title VI - Visual Artists Rights Act
http://www.law.uconn.edu/homes/swilf/ip/statutes/vara.htm
Copyright: Here's the link.
http://www.copyright.gov/title17/92chap1.html#110
Quoting from that law (note that these rights may not be waived without a signed document expressly for that purpose). The words "work for hire" must be used in the document.
§ 106A. Rights of certain authors to attribution and integrity39
(a) Rights of Attribution and Integrity. — Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art —
(1) shall have the right —
(A) to claim authorship of that work, and
(B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;
(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and
(3) subject to the limitations set forth in section 113(d), shall have the right —
(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.
(b) Scope and Exercise of Rights. — Only the author of a work of visual art has the rights conferred by subsection (a) in that work, whether or not the author is the copyright owner. The authors of a joint work of visual art are coowners of the rights conferred by subsection (a) in that work.
(c) Exceptions. — (1) The modification of a work of visual art which is the result of the passage of time or the inherent nature of the materials is not a distortion, mutilation, or other modification described in subsection (a)(3)(A).
and . . .
(e) Transfer and Waiver. — (1) The rights conferred by subsection (a) may not be transferred, but those rights may be waived if the author expressly agrees to such waiver in a written instrument signed by the author. Such instrument shall specifically identify the work, and uses of that work, to which the waiver applies, and the waiver shall apply only to the work and uses so identified. In the case of a joint work prepared by two or more authors, a waiver of rights under this paragraph made by one such author waives such rights for all such authors.
(2) Ownership of the rights conferred by subsection (a) with respect to a work of visual art is distinct from ownership of any copy of that work, or of a copyright or any exclusive right under a copyright in that work. Transfer of ownership of any copy of a work of visual art, or of a copyright or any exclusive right under a copyright, shall not constitute a waiver of the rights conferred by subsection (a). Except as may otherwise be agreed by the author in a written instrument signed by the author, a waiver of the rights conferred by subsection (a) with respect to a work of visual art shall not constitute a transfer of ownership of any copy of that work, or of ownership of a copyright or of any exclusive right under a copyright in that work.
Really interesting one, i much appreciate. Thanks for sharing the information.
copyright is all well and good if you created the entire piece in your portfolio.
Paper portfolios aside, a designer had better be very clear on image rights, client trademarks, and client copyright in the areas of provided text copy and imagery before posting any design to a web-based portfolio. Images especially may be client-copyrighted or carry a license that prohibits use other than for the intended purpose. If the purpose is print-only, a new license for the image to appear on the web may need to be negotiated.
Client confidentiality also needs to be considered and respected.
Tread carefully.
SDK responds:
While a photographer or copywriter may refuse you the right to display your combined work in an online portfolio, it would be professional suicide. As long as each contributor is credited (and perhaps even linked), no one's rights are violated according to the definition of application. Authenticity in authorship is evident (credited) and in fact, advertised to a wider audience. You may interpret the law from the point of view of a photographer or agency, but in reality, an artist has greater leeway, print or otherwise. In my opinion, neither client trademarks nor client copyright trump the courts view of an artist's work as proof of experience; thus the visual resume. Everybody is entitled to have a resume. You are not an indentured servant.
Tread boldly with your best artsy steel toed boots.
I recently received a Cease and Desist from my former employer after I was terminated from my position. I have an online portfolio which displays works created for previous employers, freelance clients, as well as logos and designs developed while employed for this particular print company. I believe this is a scare tactic as I know my former employer to be what some may call a "control freak" - I have not listed any links to the clients, nor to the company website, I am simply displaying the work I have done and noting what programs I used to create the work. Should I be nervous???? Do I respond??
SDK responds:
Always respond; not doing so may encourage them to take further intimidating steps which might cause legal fees and we all want to avoid that. You are on solid ground as long as you are the sole designer on the work you display. Respond immediately and address these issues: 1) acknowledge your previous employer's feelings of angst (this has great calming effect), 2) casually mention that the law views an artist's portfolio (whether online or in hand) as a resume and proof of experience and ability, 3) take the opportunity to reassure him that you are not violating the law by calling on his clients, and 4) cite the appropriate sections of the copyright law [see above] or send him a copy of this blog. Your previous employer has no recourse and no power or authority to prevent you from showing your work in a free enterprise system. Though he may have one of those attorneys that think selling the potential success of their cause is prudent just to make money off the guy. Most people can see the logic in the legal argument. This is truly one instance when knowledge is, indeed, power.
What about if I worked for an agency and was Art Director, but not sole contributor of a project(s) - can I still put it on my website? They claim to own copyright of all materials produced there, while I just want to show my abilities.
Please help.
Thanks.
SDK responds:
I know a few people "who claim" to own the Brooklyn Bridge, too. Many people believe that if you created something as an employee, the employer owns it. This is true if you are trying to sell it, but recently the courts ruled that an artist's work is viewed the same as a resume, so the old rules no longer apply if it's being shown as proof of experience. Credit everyone who played a part in the finished product: copywriters, photographers, designers, illustrators, et al (you can leave production out). If anyone challenges you, remind them of the precedents set by the courts that your portfolio is your resume and no one can prevent you from earning a living. Be polite, and speak softly because you stand in a position of power. But there's no point in causing ire that might provoke a court battle costing $$ in a tough economy so avoid getting into a pissing match. Remember that you must not lead, direct or notify those clients that hired the agency you worked at. And I would be sure to use pieces that clearly spotlight your art direction skills; not items that you merely stood in the room with. It would be a nice idea to link your fellow participants names to their online portfolios if they have one. Good luck.