Designer’s Rights. Don’t be Wronged.

This particular blog post is more of a forum. I have a question rather than answers and could use your help. Perhaps others like myself could benefit from your answers as well.

I have been affected by a situation that only a lawyer or someone having gone through a similar situation could definitively answer. Right now it’s not worth it to me to pay to find out the answer, but if someone is willing to part with their wisdom, I’m all ears.

Background:

Up until November of 2009 I had spent my entire 25+ year career working as an Art Director or Creative Director at a number of advertising and marketing firms. In 2009 I decided to leave the firm I was with and venture out on my own as a freelance designer/marketer. Months after my departure I received a letter from this firm’s lawyer. The content of that letter is where my situation and legal questions lay.

The Situation:

The letter stated that the owner of this firm believes the only way for items that I was involved in producing – while at the firm – to appear on the portfolio portion of my web site (rbauerdesign.com) had to come from digital files or hard copies removed from their offices without his knowledge or permission, and that all such items needed to be removed.

I fully understand the intellectual property (IP) rights in this situation. Briefly, an employer owns all IP rights of anything an employee produces. And further, unless a creative agency releases those rights to it’s client, the client has no claim to the work either.

On the other hand, if that creative agency utilized a contractor (freelance writer, designer, illustrator, photographer etc), it is that individual who retains some or all of the IP rights unless released.

In any event, knowing that I don’t own the rights to the work I produced I complied with the request and removed those items (potentially) taken from the office without permission or knowledge. However, I would argue the fact that since there is no written company policy, nor was I ever told I could not take any file or item during the course of the ten years I worked there and in fact had it acknowledged that as a matter of my job function I often brought work home, is implied permission and knowledge of removed files. But then again, I’m not a lawyer.

My Question:

What rights do I have as a creative person to show the work I was involved in creating and producing as a way of showing others that experience? I have never claimed “ownership” of any items, ever attempted to “resell” those ideas or graphics nor misrepresented my involvement and contribution to any project. In both my experience within the creative industry and my conversations with others on this subject, I have never heard of an agency prohibiting ones work from being used in ones portfolio. I do understand that while allowing agency work to be shown in ones portfolio may be “industry standard”, it doesn’t necessarily mean that is the law.

If anyone has some insight, it may be helpful to myself or others in this situation. Feel free to contact me off-line if you wish. I can be contacted through my web site.

Two Recommendations:

If you are on the creative side of a firm and producing creative work that you may someday want to show as part of your portfolio, I suggest you get written permission to do so. Preferably early-on in your working relationship.

And secondly, if you are on the receiving side of some creative work, you may want to make sure that it is stated somewhere that all creative rights are released to you. This is vitally important. Think – if you have an agency (or individual) create a corporate logo for you without releasing the rights, and for whatever reason that agency one day denies you the right to continue to use it, you’ll have to give-up using your logo. The same is true with hiring photographers or illustrators. Keep in mind though that if you make that request, it may cost you more for that item to be produced for you.

Ownership rights and usage has always been a touchy subject within the creative/advertising industry. I’ll dedicate another blog to the subject another time, and will include any insight I receive from this post.

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About Ray Bauer

I am an independent designer and marketer operating my own enterprise, rBAUERdesign, based in Grand Rapids, Michigan, I have an understanding of, and dedication to, the design and marketing process of firms in need of communication solutions. I bring my design, layout, creative and art direction experience and knowledge as well as applied and tested marketing applications from the advertising agencies and marketing firms I've worked at for over 25 years to every job I touch.
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