PORTFOLIO: Part Two
Think Like a Lawyer
My previous post onÂ "Portfolio What's Yours is Not Theirs" Â has generated more comments than any other post. Â In an effort to clarify the issues involved, and rise to meet some challenges offered by readers, the questions and my resulting answers are posted below: The answers were sent to the individuals, except for one who gave a bad address.
I was just released from my full time staff position of senior photographer I held for 7 years. Â In those 7 years, I never had a contract or a non-compete about imagery and it's usage. Â My former employer insists that I have ZERO rights to use any of the images to build a website and promote myself as an independent photographer. Â On my last day he pushed an agreement in front of me stating, don't call clients, don't say anything bad about him, and he is offering me 8 images to take as my own. If I don't sign, he' s not going to give me my final check. Â I had to sign just to get my money and get out of the building or I might have done something illegal to his physical being. Â So 7 years have passed and I have to tell potential employers that I've been under a rock for 7 years. Or try to explain, "I really am a spectacular photographer you just need to trust me. Â No I don't have any work to show you, but really, I'mÂ great."
Can he sue me or stop me if I post the images that I shot? Â I was the photographer, but I had designers and stylists working with me and we all made the image as a team. Please, if possible, site your source for which ever way you answer. I have to also stress he is extremely litigious and slightly irrational.
Since you did not sign a work for hire agreement (specifically labeled as such) and even if you did, frankly, you have a right to show proof of work experience. Â The rules for photography and art vary, but one thing your previous employer did was violate the law by withholding your last paycheck ransom--visit the Department of Labor online. Â You have cause for action right there, and should file a complaint. When they get done with him, I doubt if he'll have the spirit left to go after you.
Here's the perfect site for you; it has all the answers and after you join, they have a war chest to cover legal costs. Â How perfect is that?
This guy sounds like a nutter, so tread carefully, but remember he doesn't own you. Â Showing yourÂ previous work is something he can't prevent you from doing, just like an artist, since the court views past work the same as a resume and proof of experience. After the employment experts and corporate attorneys finish hashing their way through a court of law at someone's expense, I think they will all discover that you are "educating" prospective employers and potential clients by showing them your previous experience and professional ability. Â A resume alone just doesn't cut it in the arts.Â
The case I'm familiar with (filed sometime in 1979-80) is one I lived through; a company representative in Houston for a major photographic concern signed a non-compete agreement with her employer, but then took a job with a competitor just down the street. She prevailed, even though she was showing samples she had previously used to make sales (and how much input does an account executive have in slides and photography? Not much.). This is the same case where the judge ruled art & photography work, no matter what the circumstance, should be viewed the same as a resume and proof of experience. Â That's your key to freedom right there.
Regarding credit where credit is due: Â Credit all participants just like they do when a piece is entered in a design contest, just put your name first or gray out the other participants. Your intent is not to steal someone else's thunder, but to trumpet their skills as well as your own.
But what if you are starting your own graphic design business? You cannot display work you did for an employer as your new company's artwork, right?
Your previous employer doesn't own you. Â I believe (and again, I am not an attorney) that showing your previous work is something he can't prevent you from doing if you're in a creative field since the court views past work the same as a resume and proof of experience. Â Regarding your question about work being done for a previous employer: Â What happens when a piece is submitted to a design contest? All the participants are credited. You should do the same on your website.
- Art Direction:
I read your link to title VI Visual Arts Act and it clearly states at 602(B) that "works for hire" are not considered Visual Art under protection of the act. Likewise the second link reaffirms that "works for hire" aren't covered. In truth, your "drink ad" isn't fine art; it isn't protected under the acts you gave as links. Accordingly, the owners of the ad can complete a DMCA complaint and have it pulled from your ISP with little effort and no warning.
The only reasonable choice for an artist is to invest time on portfolio specific work, as unsolicited fine art, in order to publish it on a website. Or get the protection of a signed authorization from the client who paid for the work to include it in your portfolio.
Unlike you, I will state that I am not a lawyer, but I am an artist who has had a Flikr account deleted from a DMCA complaint. My client was a manufacturer for national retailers, so their legal department wasÂ looking for things to do to justify their jobs.
You are right--under the definitions of copyright, something used for advertising is not considered visual art, but think about the contradiction if the work is viewed by the courts the same as a resume and proof of experience for a designer; the same courts who will uphold copyright law. Â I'm sorry to hear that you lost that battle; you shouldn't have. That precedent by the courts that past work (whether advertising in nature or fine art) is viewed the same as a resume--proof of ability and experience changes the rules. With that consideration,Â the DMCA filed against you should have been null and void provided you were using your previous work to find new work. Â I've said many times in this blog that I am not an attorney, but when it comes down to it, Copyright law will never trump Constitutional law when it comes to a person's right to work in the USA, especially when it's a case of "weights and measures." By that I mean, the corporation won't suffer much from you showing a work for hire piece in your portfolio, not nearly as much as you will if you are prevented from showing it for the narrow "pursuit of liberty" purposes of finding work.
Think like a lawyer for a moment; Are you violating the copyright law by showing work you created to the public, whether it's advertising or not? Â Copyright is intended to protect creators, not the people who hired them. Trademark is designed to protect commercial use of the intellectual property or symbol. Â But even after something is trademarked, it can still be viewed by the public without violating copyright. Â Isn't a portfolio showing a public viewing? Â In a bookstore, are you not publicly viewing a copyrighted work? Â What it comes down to is fairÂ use; you are using past work to educate a potential employer or client about your abilities and experience. Some attorney will convince a corporate concern that he can argue otherwise, though, because that's how attorneys make a living.
I can't agree with you at all that work in a portfolio should be prepared specifically for that purpose. Â A designer must work with a client, a deadline, a budget and must follow through with productionÂ when working in print. Â And some of the same experience is required for web work. None of these job requirements are reflected in a prepared portfolio under your definition or a resume, for that matter.
Excellent conversation. Thank you for making this available.
I recently received a job offer (from a growing consultancy, that wants to provide design services) that has a noncompete in it. My initial thought was, why not see if I can work it into a nonsolicit instead? But after reading this blog and posts, I get the impression that neither are really relevant, and are attempts by employers to "cover all possibilities" with no real benefit to the employee except a paycheck and the security of a job, but even then, what is that nowadays?
The noncompete doesn't allow me to pursue the employer's clients after termination (which I don't have a problem with that, as I know how hard it is to get your own clients), and also doesn't permit me to conductÂ ANY design freelance while with the employer that would compete with the employer; essentially all forms of graphic design. I need to bring in all opportunities that I have or that would come my way, whether past, present, or future to the company. However, I figure what I do on my time is my time, and if for some reason I were laid off/fired (which is common nowadays), having my own clients would help soften that blow.
In addition, I know that you can't run your own business without having clients. I don't know if I will ever do that myself, but I have always enjoyed a little freelance here and there. It's unsettling to be given such an unnecessary limitation and payment cap.
So, what response would you give to designers who are faced with this, especially in the context, where very likely, a designer won't receive a full-time job if the noncompete isn't signed? Maybe it really dependsÂ on a person's situation. The more desperate they are (especially in a trying economy like this one) the more this becomes a harder decision to make. And then you throw in wife, kids, bills, etc. and you have to
ask, is this a hill I'm willing to die on?
What would you do?
When I see a situation like this, it indicates the employer believes the whole world is based on "every man for himself". Â That's just not true. Â People who work in a friendly, respectful atmosphere are more productive and less defensive, but not all cutthroats have Â learned this. Â In a way, they've shown you their cards; their "contract" is completely in their favor and I would suggest every decision they make will do the same. Does their contract say you may be fired with no notice? Â Or that there may be staff layoffs due to economic instability? Or perhaps that benefits will be cut without notice or replacement coverage after you've been with the company for 5 years? No, because they simply feel no obligation to offer that consideration because it shortchanges you, not them.
Who's looking out for you? I learned the hard way to advocate for myself because employers are mostly self-serving. So should you.
You are right about your free time being your own; you would be a fool to bring in business without receiving some "consideration". Â What consideration are they giving you for signing away your rights? Â IÂ would ask "What's the consideration?" in a friendly way and see what they say. Â If they say a previous employee walked away with all their clients once and they use the agreement for protection, that's understandable. Â If it's an agreement used to control other professions (not design specific) then I think they are ignorant of what it takes to be a designer. More likely, the question about consideration will signal that you are informed of your rights under the law; a precedent has been set by the Washington State Supreme Court that consideration (something of value) must be realized by the person signing away their rights or the agreement is null and void.
Sign the agreement simply to get the job intending to abide by it if things work out. Â If you want to be a partner eventually, bring in lots of clients. Â If you don't see a future with the place after working there for a while and they aren't reciprocating with raises and other benefits, start finding your own clients just as a back up, and you will need a backup. Â Take care of yourself because these folks won't.
By the way, why are you showing your portfolio to people? Again, the bottom line is that you are showing your portfolio, whether virtual or actual, to educate your client or potential employer on your experience and abilities; clearly something that logically falls under fair use, because nobody is going to give you a job without proof of experience.Â
My second edition is ready and waiting for you at bookstores andÂ Amazon; it's been updated and the resource guide has been completely revamped.Â Â Whether you are employed or freelancing,Â Start and Run a Creative Services BusinessÂ 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. My book prepares you for unscrupulous characters disguised as customers, vendors and professional peers and shows you how to protect yourself. Â You can read excerptsÂ hereÂ and view my online portfolio, plus download my first promotional piece,Â Melon at the Plaza, NYC. Â Good luck and make great art!
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