PORTFOLIO: What's yours is NOT theirs.
Artists get a lot of leeway in business law and tax law. Â 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. Â 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. Â 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. Â Now, if you display that ad you designed for XYZ sport drink to sell sport drinks; then you are violating all kinds of laws. Â 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. Â 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]." Â Don't do it.
As a designer, you will encounter confidentiality agreements and non-compete agreements. Â 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. Â 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). Â 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). Â Â
Non-compete agreements are dogs that won't hunt. Â 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. Â Why is he powerless? Â Because the law views an artist's portfolio the same as a resume; proof of job experience and evidence of work done. Â 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. Â 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.Â
In the state of Washington, the law was recently clarified. Â Now, a non-compete agreement in that state must show "a consideration" for the party signing the non-compete. Â 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. Â 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. Â 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. Â Then you get to keep it if the court so rules.Â
When I first started out, I had worked at a place for 3 years when the owner approachedÂ the sales staff, photographers and designers to make usÂ sign a non-compete agreement. I refused and so did one other guy--both of us were art directors and top dogs. Â Arf. Â What happened? Â Absolutely nothing because we were the talent they couldn't live without. Â 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. Â 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. Â 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. Â Don't even toy with the idea of removing that piece from your portfolio. Â I am not an attorney, but I've been there and done that in living color and real life. Â Honest.Â
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. Â 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. Â My book prepares you for some of the unscrupulous characters you will meet disguised as customers and vendors and how to protect yourself. Â And you don't want to miss the chapter 9 Sure Signs You're Not Getting Paid. Â 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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