Friday, April 29, 2011

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.  


  1. Scary indeed. A creative guy called me with the very same issue about a year ago. And, of course legal counsel doesn't get any better than Rick Kurnit!

  2. I would advise leaving the work up and let the agency "functionary" huff and puff all she wants. In the unlikely event they took any substantive legal action, you'd take it down and that would be that. BTW, I have no objection to freelancers posting work, if they really did it.

    Livingston Miller, President, Seiter & Miller Advertising

  3. If a spec ad or "agency version" done for a client cannot legally appear on a writer or art director's website, it's not only a business problem for the creative, it's demoralizing and it can hinder recruitment. Sometimes, spec work is all junior creatives have to show for their tenures on tough brands.

    It seems like there should be a distinction between unsold work that the client "owns" for distribution, and unsold work presented on a personal forum.

    Ack. This is sticky stuff.

  4. It gets even more funky when creative work is posted that never ran and in many cases, was never even presented to a client.

    I find it odd that a creative would post such work since it is really "pie in the sky". But if you worked for the agency that represents a particular brand/client, one can infer that it did run...

    If the work was not approved and never ran, I'd say you are better off NOT showing it as part of your portfolio.

  5. I just received a personal email and thought I would post most of its content. Good food for thought:

    I've heard clients ask (demand, sometimes even contractually) that work is not posted for a number of reasons:

    - sometimes (stupid) freelancers post work (whether spec or finished) before the product launches (it's happened) and believe it or not, their competitors find it

    - in the pharma industry, sometimes it's even before the product is approved! (yes, it's happened)

    My (unattributed please) two cents or sense as it really is just common sense not to post work for a product that is still in test and hasn't launched.

  6. I'm not exactly a "creative", but as a professional freelance technical/medical translator, I have nevertheless come up against this problem. If I were to do a website (I really should...), I've been told in France that it might not even be a good idea to mention the NAMES of my clients, let alone put up sample translations... My translations "belong" to me - as the author of my translation (according to the Berne Convention I think, but don't quote me on this), but they also "belong" to the client (company or translation agency). It's a grey area, but the concensus (here in France anyway) is that it's just not good to put up sample translations. It's not even necessarily a question of confidentiality (with confidential documents it's obvious that no right-minded translator would put them on their site), more of ownership/authorship. I'm the author of my translation, but not of the original "idea".
    As for the names of clients, that may be more of a "so competitors can't steal them from me" concern but even so. This is one of the reasons why I don't have a website (the others being laziness, technical incompetence and poverty).

  7. During my whole career, I've had this problem. Creatives have to use spec work to get work. I guess the portfolio schools should just shut down. They are deep trouble if clients go after them.

    Even after I got into the business, I continued to use spec work. Why put a spot on your reel that isn't what you want it to be? Clients have a way of making things less memorable, less funny, less effective.

    Lately, the web has created a big problem. My reel used to only be seen by those I showed it to. Now it's on YouTube where everybody can see it. Print and web work is the same way.

    Clients have even forbidden my current agency to use real work that was approved and ran in future pitches.

  8. I agree with Livy. Keep it up and force the agency to take action. I'd add, they probably won't and if they do, there are options. Draw in the media and expose the secret the agency is trying to hide, that someone who isn't on their payroll does work for their client. Or sue them. If this is really a widespread problem and one that can significantly impact how the industry operates, a lawsuit will eventually emerge if for no other reason but to set new standards. Some law firm will be happy to take it on.

  9. A lot of writers and art directors "password protect" their sites, you can't see ads unless the owner of the site lets you in. I personally have never had an issue, and I have my work on my site as well as on social network sites.

  10. George: You have a great suggestion. Password protection is a great idea because you can still control who sees your work.

    I also agree with Livy Miller, but anyone who does that runs the risk of being bullied by companies that have greater resources than they do. But that is probably what I would do.

  11. Nice post thank you Kenneth


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