You’re about to embark on a project for a client, but after you hand over the work, you’d like to be able to display the work in your portfolio. Is there a way for you to maintain portfolio display rights in your work, while your client gets full use of the same work?
As we’ve discussed in our post on what copyright and trademark symbols mean, copyright protection arises the moment a work is created. The copyright owner has exclusive rights over the work,1 including the right to make reproductions and, of particular relevance here, display the work publicly, as you would be doing in displaying your work in your portfolio.
The creator of the work is usually the copyright owner, unless the work is made for hire. Work is made for hire if the work is created by an employee within the scope of his employment or the work is commissioned for one of nine categories (e.g., a test, a translation, a contribution to a collective work) and if both parties sign a written agreement that the work is made for hire.
A freelancer is not an employee, but an independent contractor. Thus, unless the contract you set out with your client states that the work is made for hire and the work fulfills one of the nine categories, your work is not made for hire and you still own the copyright.
However, you can transfer ownership of the copyright in whole or in part to the client.2 This must be done in writing and signed by both parties.3 If you only transfer some of the rights to the client, you can do so through an exclusive license or a nonexclusive license. The client with an exclusive license is the exclusive owner of that right (or set of rights), so he can transfer that right and sue over it.4 With a nonexclusive license, the client may exercise that right, but you still function as the owner of that right and can still exercise it.
So do you have portfolio display rights? If you’re a freelancer, you can display the work in your portfolio unless:
- Your written agreement says that the work was made for hire, and the work belongs to one of nine categories, or
- You transferred ownership of the copyright in writing, or
- You gave the client an exclusive license to display the work publicly.
If your client insists you transfer ownership of the copyright or your work is made for hire, you can still put in a provision in the agreement stating that you maintain the right to display the work in your portfolio or for awards.
What if you’ve already transferred ownership of the copyright to a client? It’s likely that your display of the work in your portfolio would qualify as fair use. Some of the fair use factors would weigh in your favor, since display of the work does not negatively affect the market for your client and the purpose is not to directly profit off the display of the work, but to profit indirectly through the work it would generate for you. And, if the work is visual, you would have another factor in your favor if you only displayed a small-scale version of your work.5
Your client may be adamant that you not display the work in your portfolio, and you may decide it’s not worth risking your relationship with the client. If you do sign away your portfolio rights, realize that those rights have value, and you should be getting paid more for giving them up.
- 17 U.S.C. § 102. ↩
- 17 U.S.C. § 201(d). ↩
- 17 U.S.C. § 204. ↩
- 17 U.S.C. § 204(d). ↩
- Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 611 (2d Cir. 2006) (a book publisher used a Grateful Dead poster, but shrank it down to a thumbnail; the court found fair use, in part because it was just large enough to be recognizable–not exceeding the bounds of necessity). ↩