No prospective employer or client wants to hire you without seeing a portfolio of past work, yet that same employer/client does not want you to be able to ever show any designs you did for them in that same portfolio. So what is reasonable or fair use of design images, who owns the intellectual property, and how should you obtain those images, especially when your job or project is completed? Can your employer/client prevent you from using representations of your work to obtain new work? In this series of posts, we will get into more depth and detail on consideration factors of what to display, how to display it and when to give credit.
Who owns your design? If you designed the product while working in a company, they own it and you need their permission to show or display any design images, BUT, if the design was sold or publicly disclosed by the company at an open tradeshow, to the press, in media advertising or articles, via a retail or their own website or catalog, then you most likely have the reasonable right to display of those images and possibly some additional images as well – see limitations and exceptions below.
- Read Your Employee Agreements. If you are subject to an employment or non-disclosure agreement, you need to carefully review that agreement with a lawyer. Whether legal in your state or not, many employers commonly include very strict non-compete and non-disclosure clauses that reference each other, so even showing your work might open you up to breach of contract violations moving this out of right-to-work issues. Even though it seems logical that preventing you from having a complete portfolio is restricting your right to work and possibly enforcing an illegal non-compete, it can be a costly and very ugly battle, especially if you are struggling and unemployed.
- Read Your Contracts. If you designed the product for a client as a freelancer or contractor, you need to review your contract. If you can, you should contractually retain your rights to any designs not developed or commercialized by your client after a period of time (possibly 1-2 years after project/contract completion) or retain your rights to any designs declined by the client, making it easier to eventually display those items. At minimum, you should try to add a clarifying clause to the non-disclosure (or confidential information definition) in the contract to allow you to show any image or representation of the design once it becomes publicly disclosed. If you can, go one-step further and put in language granting you the rights for portfolio purposes only to display any original renderings or related images of a publicly disclosed design, even if the company photographed those.
- Ask For Limited Use Rights. If it is too late and you have already left the company or completed the project, it doesn’t hurt to ask. Send a letter with either the publicly disclosed images you want to use or textual reference to confidential images that you may know exist, and ask for express written permission to use those items in the various specified formats (electronic or printed). It may help to state that your intent is only to obtain work in your field of expertise and not to sell or in any way duplicate these designs. In some states employers are nervous about the right-to-work laws and refusing you may be seen as preventing you from finding work. You might also want to offer to place copyright restrictions on the images themselves through a service such as Creative Commons to insure that the copyright is properly protected and restricted to the limited use they have granted.
It may seem logical to you that if you designed something, you are still the creator and therefore have rights to show your work, but as you can see, it is not so simple. Even when the company publicly discloses those designs, you may still not have the rights to show those particular images – see Digital Portfolio/Resume Landmines – Image Rights.
While our opinion, experience and advice may present legal issues of interest, it is not meant to express any specific legal expertise or advice pertaining to any specific circumstances and you should consult a good intellectual property or contract attorney.