The Downside of Portfolios On Line

I would like to know anyone's experience with this issue.

All creative people post their portfolios on line now.  However, someone forwarded me a comment, which I will quote here:

         A year ago I received a strongly worded letter from [name of agency] saying

            no freelancer was to ever show work done for them on a web-site to promote themselves. 

            The problem with posting too much info (resume) is that more and more, agencies and       

            clients are searching for their names and sending cease and desist orders. They tell

            you to take their pieces off your site or face legal action. I heard from [client company]

            just today and had to pull 3 samples off. 

Wow!  This is scary stuff.  It would have to be very intimidating to receive a legal letter/email from a major corporation demanding that a creative person would have to remove work they created from their website. 

Creative people have always used their portfolios to show the work they have done. That's how they get hired.  Creative people have web sites which are, technically, public.  But they are not out there promoting the general public to click through.  Those sites are for the convenience of prospective employers.  Clients don’t own an idea that was never presented to them.

I posed this issue to Rick Kurnit, partner at Frankfurt Kurnit Klein & Selz PC.  Rick is one of the preeminent advertising attorneys in the country.  Here is his response:

         You have to distinguish between contractual obligations and ownership/copyright.

            Generally, a portfolio use of work is a fair use (permissible) with respect to copyright

            even where the ownership was conveyed by the artist as a result of an employment

            relationship or signing a “work for hire agreement” either of which conveys the ownership

            of the work.  But the copyright law permits exceptions under the First Amendment (freedom   

            speech/expression) which is incorporated in the Copyright Act’s provision for Fair Use.  

            The problem is that the artist may by contract agree that he/she will give up any rights to

            publish in any manner….typically the terms that are included in the confidentiality provisions

            of an employment agreement or a  freelance agreement.  One may contractually agree to

            give up First Amendment rights, including Fair Use rights.

This is an important issue for all creative people.  On the one hand, freelancers need the work. On the other hand, it is very easy to sign away your rights in return for the income.  If the work doesn't get produced (or even presented), whose work is it?  This is an issue that all writers and art directors should be fully aware of.

Of course, the client that asked the creative person to pull ads from the website is probably a functionary, not an advertising or marketing person or even a lawyer. I am sure they have software that trolls the net in order to find the uses of their name and products. Does this mean that every college kid who does a spec portfolio using existing products is in jeopardy of being intimidated by a major corporation whose lawyers send a cease and desist letter?  This whole issue is rather scary.  

I would like to hear your opinions and experiences.