Who Owns Your Work?
By Maria Piscopo
Who Owns Your Work?
You are a creative professional. You work for a company. What are the copyright issues at stake? Who owns what? Can you use the work for self-promotion? Maybe!
It is true the employer owns the copyright to what you create on the job but you can always ask for its use in your self-promotion. Let's get some opinions.
J.W Burkey (Dallas, TX) offers this perspective, "Be careful of mixing apples and oranges here. Assuming that you are an employee, the company you work for owns the copyright of the material you did while in their employ. It is common practice for an art director, designer, photographer or illustrator to show any and all past work in an effort to prove themselves for future work. The copyright law deals with publishing (or making public) a creative work. This is broadly interpreted to include gallery showings or posting on an Internet site. I'm not a lawyer, of course, but I know that it is very common practice in the industry to show any work that you have done, even if it was done in the employ of a company. Many art directors and designers routinely keep an extra press proof for their portfolios of every job that they do. I've never heard of an agency that objected to this."
Tad Crawford is the Publisher at Allworth Press (allworth.com) and publishes business and legal guidebooks for artists. He comments on the importance of getting an official copy from your employer of your work. Tad says, "The right to display the work does not prevent the owner of a copy of the work from displaying it directly or with the aid of a projector to people present at the place of display, such as exhibiting a fine print in a gallery. This same reasoning would apply to exhibiting in a portfolio lawfully obtained and owned samples of work created as an employee. If, however, the employer had a policy that employees were not allowed to own samples of projects on which they worked, such portfolio use might be a copyright violation."
From the Executive Director of the Graphic Artists Guild (gag.org), Paul Basista comments on using the "fair use" clause. "If you created work as a work made for hire, either because you were employed to create this work throughout the normal course of your employment, or if you are a freelancer and you signed a contract stating the work was intended to be a work for hire, you are not the legal author of the work. If you are not the legal author of the work, you have no right, without the legal author's permission, to display the work in your portfolio or to use it any other way. Interestingly, one of our attorney members thought I was being too conservative. She felt that it was fair use to display the work in one's portfolio. I don't think that's true for the following reasons. Under work for hire, the 'creator-in-fact' has no claim on the creation of the work. For something to be fair use four factors must be applied: what was copied (image, text, music, etc.,) how much of the work was copied (a line, paragraph or the whole work), was it for educational, research or not for profit use, and what effect does if have on the marketability of the work. While its effect on the marketability of an image is probably negligible, the other factors do not support fair use."
Stephen M. Lobbin is an attorney at KNOBBE, MARTENS, OLSON & BEAR, LLP (Newport Beach, CA) and addresses both sides of this question. Steve says, "Section 201(b) of the Copyright Act states that an employer owns all of the rights comprised in the copyright where a work is 'prepared by an employee within the scope of his or her employment (a work made for hire).' Thus, because the employer probably owns the copyrights, which includes the right to display the work 'publicly,' the best recommendation for you is to ask your former employer for written permission to show your work as part of a personal portfolio and in an on-line portfolio. The artist may display the work in a portfolio as long as the agency permitted the artist to own a copy of the work for that purpose. Thus, the answer depends on whether the artist legitimately owns the physical 'copy' of the work that is in the portfolio. The copyright owner has the exclusive right to make and distribute copies of the work, and if the agency has 'distributed' a copy to the artist (either giving or selling), then the agency can no longer control whether the artist chooses to privately display that copy in her portfolio. If you are given permission to keep a personal copy of the work for your portfolio, you may show that copy in your private portfolio, as long as you do not display the work 'publicly', make additional copies, or create derivative works."
To sum up these recommendations, observe these rules when you work for hire or work as an employee:
- Obtain clear documentation of ownership of your samples
- Get written permission to use them for self-promotion
- Credit the owner (employer) of the work's copyright
- Update your freelance portfolio with personal work
For more information, check out these resources: