What if a client forbids you from including something in your portfolio?
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You just completed a project, you’re proud of it, you can’t wait to show it off -- and then your client asks you not to put it in your portfolio.
You look in your contract, and sure enough, all copyright is reverted to the client on project completion. And that copyright covers the right to show the work to others.
If your client has copyright and they forbid you from putting an item in your portfolio, you have no choice. If you put it in your portfolio, they can sue you.
You can ask them if you can include it in your portfolio after a certain number of months or years, or you can ask them if you could just show it to a certain client in a non-competitive field, but anything they grant you is out of kindness.
What can you do better next time?
Of course, reading your contract would be a great first step.
When you see a clause that passes all copyright to your client, if you don’t feel like arguing to retain some rights, you can ask that they include a special clause -- what some lawyers call a “portfolio use” clause.
Here’s the clause Jeff Fischer, a logo designer, includes in his contract:
"The designer retains personal rights to use the completed project and any preliminary designs for the purpose of design competitions, future publications on design, educational purposes and the marketing of the designer's business. Where applicable the client will be given any necessary credit for usage of the project elements."
The clause allows you to use the work for “marketing” -- i.e., your portfolio. If there are items in the work that haven’t been created by you, you can credit the business.
You may also be able to negotiate that any confidential copy or information is either blacked out or modified in some way. If they’re worried about the work being found online, you may be able to suggest terms using a “noindex” meta tag to prevent search engines from indexing the work.
The client may still feel uncomfortable, in which case you might be able to get the rights to show your work “at the client’s discretion.” In other words, you would not be able to include it in your online portfolio, but you may be able to show it to selected clients on a case-by case basis.
What if the client refuses a portfolio clause?
I found this story from Daniel Savage inspiring in a circumstance like this:
“My advice, besides the obvious of READING a contract, is if you see something like that on a contract, cross it off and initial. IF they say no and you need the money, demand a huge pay increase. Otherwise don’t work with them, there is plenty of work to go around not to put up with that crap.”
Your portfolio is the thing that gets you new business, and not being able to show work can have a huge impact on your marketability. Let them know that you’re not just charging for your services, your charging for the transfer of your copyright -- because as an independent contractor, all rights are yours UNLESS you transfer them. So if they want to retain 100% of copyright, they should pay for it.
Alternatively you could just suck it up, but hopefully you'll be able to negoiate at least some terms that allow you to show the project in limited circumstances.
Why do some clients care?
It could be a number of things. Sometimes your project is confidential. Sometimes clients don’t want you showing the work to a competitor. Creative agencies often want the work to go down in history as coming from the agency -- not from an individual. Obviously, ghostwritten projects probably won’t appear in your portfolio.
Some clients have simply been told by their lawyers to watch out for copyright issues with freelancers, so they’re scared into putting the strongest possible copyright language in the contract. Normally these clients can be convinced of the common sense of allowing you to put it in your portfolio within the bounds of the portfolio use clause.
A final note: most clients don’t care.
Even though clients have the right to enforce the no-portfolio rule, they often don’t.
Most of the time, when you ask a client if you can put a project in your portfolio, they don’t object. Or if you’re a new freelancer who doesn’t even realize the legal issues, you put the work in your portfolio without an issue (not even realizing you just violated your client’s copyright).
Just because most clients don’t care doesn’t mean you are legally protected -- or protected from pissing off your clients. The last thing you want to do is ruin a client relationship because you didn’t read the contract. This is why I recommend that you always ask. 80% of the time it won’t be an issue.
Freelancers, have you ever run into this issue?