This article was inspired by a discussion with a colleague about creating and protecting a professional portfolio. One of the challenges facing creative professionals is building and maintaining a current portfolio for future reference. In this particular conversation, we discussed whether someone could include work produced while employed in a professional portfolio?
I suggested that he import his blog posts and articles from various sources into his Medium profile using the “Import story” feature. It got me thinking about the copyright implications of doing that so I did a little research.
Your employment contract is your first challenge
It turns out that, as an employee, you probably gave up your rights to your writing. Many employment contracts have clauses like this:
Employee acknowledges that any original works of authorship s/he creates, whether alone or jointly with others, within the scope and during the period of employment with Company, shall be deemed a “work made for hire” as defined by the United States Copyright Act and are protected in accordance therewith. To the extent that such work is not, by operation of law, a work made for hire, Employee hereby transfers and assigns to Company all his/her right, title and interest therein, up to and including copyright.
There is often another clause that deals with something called “moral rights” which the contract may require the employee to waive or otherwise give up.
For writers who put a huge amount of effort into their work and take pride in their literary brilliance, clauses like this are analogous to amputations and this is why:
- The “work made for hire” clause has the effect of saying that your brilliance which you create as an employee actually belongs to your employer and you don’t have any rights to it from the moment you start populating that blank screen.
- If your contract has a clause that requires you to waive your “moral rights”, that basically means you give up your right to be known as the author of your professional work.
The effect of these kinds of clauses is to take your work from you and create a fiction that you didn’t create it and a legal fact that you have no rights to do anything other than admire it from afar. It limits what you can add to your professional portfolio because clauses like this limit –
- What you can claim credit for; and
- What you can republish without permission from your employer.
In other words …
You didn’t write this, it isn’t yours, just keep working
How you can salvage your professional portfolio
There are other options for building your portfolio which could work. One option is to simply point to an author page of the company blog that lists your articles by author (if you have that option). You could create a collection of links to “your” articles that implies that you are the author of those marvelous works.
The best way to avoid this situation is not to sign a contract that contains those legal scalpels. At the very least, hold on to your moral rights so you can publicly assert that you wrote those works.
Best case scenario
You negotiate clauses that give your employer co-ownership of your work (most employers would insist on this level of control) while retaining co-ownership yourself. That gives your employer the security of knowing it can do what they want with your work (because, after all, it is paying you to write that stuff) and you have the rights to do stuff with it all too, such as include it all in your portfolio.
Don’t assume you have the rights
Unfortunately many of our preconceptions about our rights to our work are misinformed and many creative professionals routinely give up their rights to their work when they sign their employment contracts. The power dynamics are usually against you and you may feel you have little choice but to agree if you want the job.
At the same time, it is a good idea to do the following if preserving your professional portfolio is important to you:
- Read your contract and identify the clauses that relate to your rights to your work.
- Discuss the clauses with your (prospective) employer and negotiate better terms before you are too far down the road.
- If you find you have little choice, be mindful of the clauses’ scope and ensure that the clauses don’t encompass your otherwise unrelated work simply because you don’t make clear distinctions between work and non-work stuff.
- Most importantly, don’t assume that you have no say whatsoever. The little secret is that most things tend to be negotiable to a degree.
This article was originally published on Medium on 2015-12-25 as “When you signed away your rights to your writing“