Portfolio vs law – frequently asked questions

Spis treści

This article will provide answers to the following questions: can we publish our works in our portfolio? Can a client or a former employer prohibit us from publishing their work in our portfolio? And much more.

The article applies to each author of a work under the Copyright and Related Rights Act. It doesn’t really matter whether you are a photographer, make-up artist, architect, web designer or another artist—this article and this blog are for you.

What is a portfolio?

Although you have come here looking for a specific answer, it is always worth starting from the beginning. Let’s take a look at the Wikipedia:

Career portfolios help with a job or acceptance into higher education institutes (…) Items that should be included include (but are not limited to) personal information, evaluations, sample work, and awards and acknowledgments. Career portfolios are often kept in a simple three-ring binder or online as an electronic portfolio and updated often. A career portfolio is used as a marketing tool in selling oneself for personal advancement.

I think this is clear. Let’s move on.

Employer acquires rights to the work

If you perform creative work under a contract of employment, unfortunately, you are limited, apart from by the contract itself, by the law:

Art. 12. Copyright Law
1. Unless this Act or a contract of employment states otherwise, the employer, whose employee has created a piece of work within the scope of his/her duties resulting from the employment relationship, shall, upon acceptance of the work, acquire the author’s economic rights within the limits resulting from the purpose of the employment contract and the congruent intention of the parties.

The employer acquires the author’s economic rights from you when you accept the work. The form of acceptance of the work is arbitrary and can be expressed formally in writing or even as a text message. The employer has as many as 6 months to make a decision, which may result in his or her not accepting the work or setting a deadline for making appropriate changes to the work. Due to the fact that the employer acquires the author’s economic rights, he/she has the right to use the work.

Contract for specific work and mandate contract

As you know, whether from this blog or from practice, parties determine everything between each other by means of appropriate provisions. Similarly to the case of an employment contract, you limit yourself when you transfer the author’s economic rights to the work too vaguely.

Why? Because there is often no additional information about whether, when and in what fields you can publish an already created project in your portfolio. This is important from the perspective of the willingness to publish your own works in the portfolio in the future.

Despite the fact that moral rights are inalienable, it is possible to oblige the author not to exercise them.

You mind find this article helpful: Author’s economic and moral rights.

Portfolio and copyright

If you already know when and how copyrights are transferred under the employment contract and civil law agreements, you also have to consider several issues, i.e. the author’s economic rights and moral rights.

Author’s economic rights and portfolio

If you want to publish your works in a given field of exploitation, you must have copyrights in the required scope. If you don’t have them, it is possible that when you publish the work without the employer’s (or the principal’s) consent, you infringe the copyrights he/she has acquired from you. This depends on the author’s economic rights.

Moral rights and portfolio

Another issue raised by authors is the issue of moral rights. In this case, if you do not have author’s economic rights, you can rely on your moral rights. Moral rights protect the bond between the author and the work and, as you know, your portfolio is the presentation of this bond. The aim of such a publication of the portfolio would have to lie only in presenting the greatness of one’s works, so it couldn’t be of commercial character. I believe this might be problematic.

Collective publication

Collective publication has been specified under Article 62 of Act on Copyright and Related Rights. It states that “an author may include works in a collective publication of his/her works for the publication of which a separate contract has been concluded”.

After we have read this provision, we should pay attention to the definition of collective publication. Unfortunately, it has not been specified by the legislator, so we should search for it in the doctrine:

It should be understood as the preparation of the media on which the works of the author are contained. It seems that a collective publication can only be of material nature. Collective publication is not combining works for their joint distribution in other fields of exploitation (J. Barta, R. Markiewicz (in:) Prawo autorskie i prawa… (Copyright and related…), ed. J. Barta, R. Markiewicz, 2011, s. 408) such as public performance, broadcasting, screening, exhibition, although such forms of presentation are often used to collect and make available a significant part of a given artist’s output (e.g. exhibition of paintings, film review, etc.) – Flisak Damian (red.), Prawo autorskie i prawa pokrewne. (Copyright and related rights) Commentary. LEX 2015.

As you can see, an online portfolio will not be considered a collective publication, especially a Facebook fanpage or an Instagram account. This applies also to artists’ exhibitions.

Ideal solution

The simplest solution will be to define the detailed fields of exploitation in which the rights are to be transferred or licensed. I encourage you not to take the publication of your work in the portfolio for granted and to include everything in the contract accordingly. Even if everyone appears to know that, it’s always better to make sure it’s written down.

Non-disclosure agreement

In an ideal world, a non-disclosure agreement is concluded even before you start working on the project. It should include information on whether you can publish your work before the client’s publication and even whether you can inform anyone about the actions taken. Such an agreement may also take the form of a provision in the contract or a separate annex.

Most often, when the client is an agency or another company and not an individual, this provision exists and must be followed, and its violation may result in a high penalty, not only a financial one.

Limitations imposed by the client

Once you have come to an agreement with your client, you can expect a mention of your moral rights. As these rights are inalienable, you may find information about not exercising them.

It’s up to you whether you want the work to be marked with your name, for example. In some cases, this may also be a problem limiting your right to publish your work in your portfolio.

Protection of image

Publication in a portfolio and the protection of someone’s image go hand in hand. Most often, this issue will be problematic for photographers. I have already written about image protection in another article—you can read it in Polish: Model’s rights:image and its second part.

Using the logo of the company you worked for

This matter is complicated in both cases: when the logo is a registered trademarkand if it has not obtained such a right of protection, but it is a work under the copyright law. You have to talk to the other party, describe the situation and draw up an appropriate agreement.

My work has no creative contribution

Unfortunately, in such a case you are not covered by the possibilities referred to in the copyright law. By including such a project in your portfolio, you will violate the rights of someone else.

Co-authors of the work

We also shouldn’t forget people who somehow helped you create or co-created the work. The work of make-up artists or retouches, who sometimes have to be considered co-creators, is a great example.

Other issues

As you can see the issue entails various problems. I focused on the most important aspect of the portfolio in the cases where everyone can access it, e.g. a website or a fanpage.

Of course, this wasn’t the case in the past and the portfolio was presented in the form of a book at private meetings with clients. This was connected with the lack of access for a wider group, so from a practical point of view, nobody had to be asked for permission.

However, each portfolio presentation is aimed at gaining some kind of commission, so it is of a commercial nature and therefore raises another problem. Similarly, if you present a work created under an earlier employment contract while already working for another company, you may be misleading the client that it was this company’s order.

What can you do?

  • Do not present the work in a very specific way, but only describe it, outline a certain idea.
  • If you are e.g. a web designer, present the print screens of the work with a description of your contribution and a piece of information about for whom it was created, possibly under whose supervision. Do not put the whole website on your server.
  • Transfer the rights or grant licenses in such fields which will make it possible for you to continue using the work in the portfolio.
  • The most important thing is to ensure that the consent to publication in the portfolio is included in the agreement.
  • If you can’t do anything else, try to speak with the client or the employer.

I have presented everything in a simplified form, and some cases can be viewed in various ways. I will gladly read what you think about the solutions to these problems.

Did you find this article helpful? Please share it with others!

Arkadiusz Szczudło

Arkadiusz Szczudło

Jestem adwokatem, Partnerem Zarządzającym w kancelarii Creativa Legal, wiceprezesem fundacji Creativa Education, mentorem i twórcą internetowym. Specjalizuję się w prawie nowych technologii oraz prawnym wsparciu biznesu – w tym w szczególności e-commerce i biznesu online. Jestem ekspertem w zakresie prawnych aspektów technologii blockchain.

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