Can employer restrict my use of portfolio samples?

October 19, 2012 10:36 AM

I'm a graphic designer, employed full-time with a marketing agency. Yesterday my boss said I have to take down examples of work I've done while at the agency. In trying to determine if I can legally show these samples, searching the web is providing conflicting info. Things worth mentioning (a) My portfolio specifies that the work was done on behalf of my employer (b) I never signed anything restricting the use of these images and (c) The images are of works that have appeared in public (stores, events, etc). Is there something "official" I can refer to that shows where the rights to these images lie, especially as they apply to a personal portfolio?
posted by AONeal79 to law & government (19 answers total)

You need to read about the Works Made for Hire doctrine.
posted by Jahaza at 10:43 AM on October 19, 2012 [1 favorite]

You may find this pdf on the "work for hire" doctrine instructive.
posted by Admiral Haddock at 10:44 AM on October 19, 2012 [1 favorite]

http://www.mpiscopo.com/artman/publish/article_27.shtml

I have in the past taken legally allowed copies of my work and displayed them non-inernetishly (and have now lost some of them, too). Most times my portfolio of hard copies has come back - sometimes not.

For items that were not released publicly, they never left my possession. Other times things went online with a limited link to it; that is, you couldn't just surf to it, you had to know it was there and have a password for it.

For items that were released and are currently available publicly, I have provided screenshots of the work and/or links to live editions of the work.

What did you sign when you started besides standard NDA and or full-time primary employment agreements? Start there, with HR.
posted by tilde at 10:44 AM on October 19, 2012

IAAL, but IANYL and probably not licensed in your state. You're going to want to consult an attorney about this. You're wading into copyright law waters, and you can get in over your head really quickly if you aren't careful.

But off the top of my head, anything you did for your employer is probably considered a "work for hire," and the copyright thus vests in your employer, not with you. You probably didn't need to sign anything to restrict your use of the images, because they were created in the course of your employment duties.

It sounds to me like you're maintaining an online portfolio. That's going to be more problematic than simply creating a personal portfolio and showing it to people when you're on the job search but not publishing the works online. You can probably get permission from your boss to do that far more easily than for maintaining a site where the things you create at work are on permanent display.

So if you really want to fight this, you're going to want to consult an attorney, but I can't say that I like your chances of a good outcome. Probably best to go along.
posted by valkyryn at 10:44 AM on October 19, 2012 [1 favorite]

Barring any other mitigating information, it appears to me that you have no leg to stand on here.

Work For Hire means the hiring party OWNS the work, copyright and all. You may be able to negotiate for permission to show your work on a case-by-case basis, but your employer is 100% within their rights to request that you not display it online.

Sorry about that.

(Also, IANAL, but I have played pick-up basketball with some.)
posted by Aquaman at 10:48 AM on October 19, 2012 [1 favorite]

That's not your work. That's your employer's work. Your employer owns the copyright to it, and can ask anyone (including you) to not display it. There are sometimes differences for freelancers (who can negotiate non-WFH treatment sometimes)... but for a full-time employed designer at an agency, I can all but guarantee you that the terms of your employment state that anything you produce on the clock, under direction of your employer, using your employer's hardware and software, belongs to your employer -- pretty much the definition of work for hire.
posted by toxic at 10:51 AM on October 19, 2012

Just as a legal matter, the question is not whether the employer owns the work (which it clearly does). The question is whether the non-commercial reproduction of a sample of the work in an artist's portfolio constitutes fair use. The answer is: it is far too expensive to find out and you should move on. IAAL. IANYL.
posted by The Bellman at 10:52 AM on October 19, 2012 [4 favorites]

You're onto a loser here for two reasons:

1. The law
2. It is not in your boss's interests to showcase your amazing work to the outside world.

If you feel strongly on this, I'd start from a different negotiating position. Apologise. Tell your boss why you want an online portfolio. See if there is a compromise that involves a time embargo on the samples, or restrictions on resolution or number of images.
posted by MuffinMan at 10:57 AM on October 19, 2012 [1 favorite]

You are very likely producing work under Work for Hire, in which case you cannot show work done for your employer as your own. Apologise and retreat as graciously as possible.
posted by DarlingBri at 11:02 AM on October 19, 2012

As far as I know, if you did the work for your employer, on their dime, they 100% own it and you have no right to do anything with it for personal purposes. This seems pretty cut and dry to me.
posted by Dansaman at 11:07 AM on October 19, 2012

(b) I never signed anything restricting the use of these images

This isn't a defense. The work is not yours by default, and in fact, you would need to have a signed release permitting your use of them.

For more information, see Jack Kirby. He and his heirs have been fighting Marvel on this point for literally decades.
posted by dhartung at 11:11 AM on October 19, 2012

you ever wonder why the best work in design annuals is usually Self Promotional? Your boss is correct, and this is not just common--it is standard. And for complex projects, claiming design ownership gets more complicated. Is the concept yours? Did you illustrate, photograph, write the copy, art direct yourself, while in a vacuum with no input from the agency you work for?

i am terrible at keeping an updated portfolio myself, for a lot of those reasons.
posted by th3ph17 at 11:30 AM on October 19, 2012

I just have to chime in and say that they probably have the right to ask you to take it down, but I don't find this to be common. I am a designer and most designers I know use their design work with proper attribution of where they work in their portfolio. I don't find it "standard" that you can't use samples of work produced just because you are employed.

How are we supposed to have a portfolio if we have to exclude all the work we are paid to produce for an employer? Maybe have a conversation to see if their can be a compromise of the amount of samples you show, or show only portions of a design product instead of the entire thing?
posted by blacktshirtandjeans at 11:45 AM on October 19, 2012 [3 favorites]

you ever wonder why the best work in design annuals is usually Self Promotional? Your boss is correct, and this is not just common--it is standard. And for complex projects, claiming design ownership gets more complicated. Is the concept yours? Did you illustrate, photograph, write the copy, art direct yourself, while in a vacuum with no input from the agency you work for?

it's really unusual for anyone to put up a portfolio thinking that other people will assume they did all the work themselves, or for anyone to look at a portfolio and assume the work was all done by the person all by themselves. Usually examples are accompanied by a blurb indicating what the person did on the work - copy, design, art direction, etc.

most designers I know use their design work with proper attribution of where they work in their portfolio. I don't find it "standard" that you can't use samples of work produced just because you are employed.


This is my experience as well. This is how people get jobs, by posting example work online. It might be their right to ask you to take it down, but it's kind of going out of their way to be jerks about it.
posted by sweetkid at 12:03 PM on October 19, 2012

...you ever wonder why the best work in design annuals is usually Self Promotional? Your boss is correct, and this is not just common--it is standard.

Um, no, this isn't standard. Far from it. And, in fact, the vast majority of work in design annuals is for-hire work. The common practice is that designers are allowed to show their work in a portfolio, regardless of who commissioned the work.

This sounds a lot like an employer who doesn't want to help you get outside jobs.
posted by Thorzdad at 12:27 PM on October 19, 2012 [1 favorite]

Your question: Can employer restrict my use of portfolio samples? The answer is: yes, yes they can, up to and including pursuing this in court.

"Work for hire," is the standard answer.

Here's a couple reasons why your employer may not want you to show off the work you've done for them in a personal portfolio: their client may like to pretend that they do everything "in-house." I used to do graphic design work at an agency and our big clients frequently hired quite a few different agencies to do their marketing work. They didn't want all these different people to be showing off their work, they didn't want them pitting against each other or lobbying against each other and they wanted to give a cohesive impression to those that would notice such things. And frequently, one "big" agency would be in charge of the style guide and thrust of the marketing message and those big guys would be the sort of "agency of record" and they don't want all these little guys horning in on the limelight.

On that same note, let's say your company shows on their portfolio that they did design work for XYZ Shop. Then you show it in your portfolio. Suddenly, people go looking for the designer of this awesome stuff so they can hire that person and they come up with your portfolio. The company who has hired you, pays consistent wages, covers your health insurance and has lots of overhead wants THAT business. They don't want the person who comes knocking confused about where to go to get that business. In essence, you're offering up competition and it's over a product that you would not have had access to without your employer.

The way around it, is to allude to your skills in your resume. Show samples in person or behind a password protected screen to individuals who you have a relationship with and not to put it out there for everyone in a public portfolio. This is always how it has been done. And be sure, even in these private showings that you properly attribute the work.
posted by amanda at 12:36 PM on October 19, 2012 [1 favorite]

I've worked in advertising for years. Though it is true your employer owns the work you performed on their behalf, you make your living based off of your portfolio and how people perceive your skill level. And those who are in a hiring position will want to see proof of your industry-specific abilities. This is an awkward dance indeed, so I will tell you four approaches that I have seen.

1) Don't make an online portfolio and only show your work in person. Don't leave a book behind when you interview. This is the very conservative route.
2) Don't have an online portfolio and only have printed examples of your work so it doesn't become a digital liability.
3) Make a site with your portfolio and password protect it, or make the link private. This way, you can easily show your work online, but your former employer doesn't get to sniff around your site and tell you to take things down.
4) Tell your boss "Stuff it, Ugmo—you can't hold my career hostage!" and continue business as usual. Find new job quickly.

Personally, I prefer #3. You can use the non-password protected part of your site to show off your design chops through the actual design of the site itself and selected personal projects. As Amanda says above, have a slick resumé that references your previous projects and abilities. Marketing recruiters are hungry, hungry hippos when it comes to finding talent. They are very likely to go the extra step of getting in touch with you to see your work if you are a fit. I have definitely seen people do #4—flagrantly—and get away with it, FWIW.
posted by Lieber Frau at 1:34 PM on October 19, 2012 [2 favorites]

3) Make a site with your portfolio and password protect it, or make the link private.

There you go. He's being an unreasonable dick, but this is the simplest workaround. I don't know how he found out about your personal website in the first place, but depending on the circumstances I have seen people "secure" their work by password-protecting it and putting it on a webpage which also notes, "the password is 1234."
posted by drjimmy11 at 3:49 PM on October 19, 2012 [1 favorite]

Thanks everyone - I have opted to password-protect these pages, and will see if this satisfies my bosses. I know that ultimately this is more of a power play than anything. Also, I accepted a new job offer and gave my notice today :) :) :) PAR-TAY!
posted by AONeal79 at 5:07 PM on October 19, 2012 [5 favorites]