When you apply for a job in graphic arts, web design or other tech jobs, it's customary to provide your portfolio (whether digital or print copies) to your prospective employer. However, once you show them your work, does it still belong to you?
The world of intellectual property and copyrights can be difficult to understand. Because of this, some companies have begun exploiting applicant's confusion over their rights and their desire to get the job in order to get them to agree to terms that grant them very liberal ownership rights. To prevent this from happening to you, it's crucial that you know your rights and that you know the details of any agreement you enter into.
For example, Sony Pictures has come under fire for this type of copyright exploitation. A recent post at Drawn exposed the issue, and broke down the fine print in the agreement that applicants have to agree to before submitting their portfolios. Here are some of the contested portions of the contract:
- "[…] Sony takes ownership of your portfolio material when you apply for the job." This means that your portfolio can't contain work that you have sold to other companies – which is basically what a professional resume is. So, instead of showing Sony Pictures the work you've done for others, applicants are required to submit only new work.
- "…any intellectual property or materials […] shall become the sole property of SPE to the fullest extent permitted by applicable law and will be considered “works made for hire” or “commissioned works” owned by SPE." The wording here is pretty clear. Basically, once you submit your portfolio, the copyright to the work belongs to Sony Pictures – as though they had paid you for it.
- "SPE […] shall be entitled to the unrestricted use of Submissions for any purpose, commercial or otherwise, without acknowledgment or additional compensation to you." This is perhaps the most contested part of the agreement. It clearly states that not only does the work now belong to Sony Pictures, but that they can use it any way they'd like without having to compensate the artist at all. So, if an applicant doesn't get the job, any work they used in their portfolio can be used by Sony Pictures for free.
As you can see, the terms of this agreement certainly aren't in favor of the creator of the work. So, what can artists do to protect their intellectual property and retain the copyrights to their own work?
To answer the question, let's take a look at copyright law. Copyrights are covered under the 1976 Copyright Act. According to the Section 201 of the Act, ownership of the copyrights to original work are, by default, granted to the creator of the work. However, there are some exceptions – the biggest being “work made for hire.” Under this provision, when an employee creates something within the scope of their job, the intellectual property rights belong to the employer, rather than the creator.
There was some argument about what constituted employment and exactly who is an employee. To clarify this, in 1989, the Supreme Court decided that in order to decide if someone is an employee or an independent contractor, we have to look at how much control they have over their assignments, where they work, when they work and if they are able to work for others. For example, if you work at an office provided by a company and they assign a work schedule, provide the tools for you to work and they have control over what your assignments are, you're probably an employee. However, if you work at your own office or home and are able to decide what work you take on and when and where you do it and you are free to work for anyone you want, you're most likely an independent contractor.
As a paid employee, things are pretty simple – what you create either at work or after work hours belongs to your employer. Although this might seem unfair, without this protection, employers can quickly become competitors as soon as they leave the building. After all, the employer provides the tools and the work space that inspires their employees, even when they are off the clock.
For independent contractors, they retain the rights to the work they do, even when they are paid for it. That's why most companies require any employee or freelance worker to sign a contract granting them exclusive rights to any and all commissioned work. These agreements protect the rights of the artist and the company alike.
Before you sign any agreement or employment contract, make sure that you are clear about your employment status so that there isn't any confusion. Also, be sure to read the contract thoroughly and if there are parts that you don't understand, seek the help of a intellectual property rights attorney. At the beginning of your career, protecting your rights might not seem all that important, but having everything spelled out will make things so much easier in the long run and prevent misunderstandings in the future.
How do you deal with your intellectual property rights? Do you think that artists are too quick to surrender their rights? Please share your thoughts in the comments.
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