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It was the third or fourth call I received, from different Agency clients in the space of a few weeks, with questions about how to handle display rights for creative work.

“Our freelance designer is displaying our Client’s work on her personal website! We didn’t give her permission to do it, and neither did our Client. And, she doesn’t even mention the Agency.”

Other clients wanted to know:

“ Do we need the Client’s permission to show the work we do for them on our Agency website?”

“ Our employees want to include Client work samples in their personal portfolios. Should we let them? Can we let them?”

“ We pitched a few concepts to a new Client, and they only picked 2 of 3. Can we show the third to other prospects?”

Excellent creative work, well executed, is a source of pride and accomplishment for a creative services Agency. Ideally, displaying the work can also lead to referrals or new business opportunities for the Agency, and for this reason the issue of Portfolio Rights (the right to legally display the work the Agency creates) is an important one. It’s usually also personally important to the individual creatives who work on the campaigns or projects.

Use these 3 Tips to manage Portfolio Rights for Agency creative work

Here are a few practical tips for managing Portfolio Rights issues for Agency creative work:

Address Portfolio Rights in Client Nondisclosure Agreements and Client Service Agreements

If the ability to display samples of the Agency’s creative work is important, make sure to include language in any pre-engagement documents, such as Nondisclosure Agreements, that the Agency owns and can display the assets created for the pitch. If the prospective Client won’t agree, then alternatively negotiate compensation for those “concept” assets and, at a minimum, negotiate the right to display any concepts or assets that the prospect rejected.

In the Agency’s Client Services Agreement, it’s reasonable to negotiate for the right to display samples of executed Client work for Agency promotional purposes. However, existing Agency Clients will usually decline to allow display of rejected or early unexecuted versions of work. Make sure the Agency’s service contracts specifically call out these Portfolio Rights, since the copyright in the work has likely transferred to the Client. Finally, always provide proper attribution for the Client’s trademarks in the Agency portfolio.

Have Clear Portfolio Rights Language in Independent Contractor Agreements with Freelancers

First things first – if the Agency doesn’t have a written contract with Freelancers or strategic partner Firms, then it doesn’t own the work the freelancer creates in the first place, and won’t have any leverage regarding Portfolio Rights. Even if it paid for the work. So, get a signed contract with every freelancer or strategic partner Firm, and in that contract, make sure to address Portfolio Rights along with IP ownership of finished work. A solid rule of thumb here is that the Agency reserve the right to decline portfolio display at any time – it needs this flexibility so it can comply with its Clients’ requirements about portfolio use. Additionally, make sure to require that the freelancer provides full attribution to the Agency when displaying the creative assets in a personal portfolio. This ensures that the Agency gets on record for having the Client relationship.

Additionally, make sure that whatever Portfolio Rights language the Agency uses in its independent contractor agreements matches any provisions or restrictions in its Client agreements on those points.

Have An Internal Agency Policy About Client Work in Personal Portfolios

The Agency automatically owns all rights in any works that are created by its employees in the scope of their work for the Agency. (Remember – this doesn’t apply to “contract” employees – see above about Independent Contractors and Portfolio Rights). So, the Agency has a lot of leverage to create policy that makes sense for its business and its Clients. At the same time, many Agencies feel pulled to allow their talented creatives the ability to display work in their personal portfolios. How should the Agency balance everyone’s interests?

The Agency needs a written policy to address Portfolio Rights for employees – even if the policy is that it is NOT permitted. If that policy does allow the display of some creative work, include these parameters:

– A requirement that Agency permission be sought for every piece of work displayed;

– A requirement that both the Agency and its Client be acknowledged in the Portfolio, with a proper copyright statement in favor of either the Agency or the Client; and

– A statement that portfolio display permission can be revoked by the Agency at any time it deems necessary (for its own business purposes, because the Client “says so,” or because of an employee termination, for example) – even after the employee ceases to work at the Agency.

Work portfolios are important strategic assets for an Agency. Take the time to address Portfolio Rights issues early to maximize their value for the Agency and its creative talent.