Design and the law: what you need to know when building your portfolio

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Anyone who has worked in a creative field knows that their employability relies on a robust portfolio.

Anyone who has worked in HR with creative employees has been faced with this question: can an employee include the work they have done for the company in their portfolio?

Marvel v. Kirby

Jack Kirby was an artist for Marvel Comics. His artwork introduced characters such as Spiderman, the X-men, Iron Man, the Avengers and the Incredible Hulk, to name a few. Kirby passed away in 1994 and several years later, in 2009, his estate sought to claim ownership of his work. Marvel refused, claiming that the works belong to them.

This case sparked a strong reaction in the comic book community. Had Kirby not drawn these infamous characters, Marvel would not be the publishing giant it is today. The feeling the comic book community expressed is a natural one, one that I believe many people instinctively agree with. It’s Kirby’s talent that captured the hearts and minds of readers. His creativity connected comic book fans with Marvel.

On the other hand, what if these characters had not been a success? Marvel bore the risk of their success or failure by committing the initial capital, including Kirby’s salary. Furthermore, had Stan Lee not written the stories and told Kirby to create these works, they would not exist.

In the end, the ruling was in Marvel’s favour because this is what’s considered “work for hire”. What this means is that in the eyes of the law, the employer or entity commissioning the work is the author of the work. It’s a fascinating case that I invite you to read more about in Terry Hart’s article linked here.

A common interpretation

In cases involving companies and artists, a common interpretation is that companies are getting rich off the fruit of the artists’ labour. While this has definitely happened in the past and unfortunately continues to happen, it’s important to not paint all instances with the same brush, so to speak.

What’s often ignored is the element of risk and who bears the brunt of the risk. When an artist or a designer is hired either permanently, contractually or as a freelancer, someone has already founded the company. The company already has a product or service. The company has an identity. The company may even be responsible to shareholders for turning a profit. In certain cases, the company provides the artist or designer with the material or tools to complete the work. And, obviously, let’s not forget the salary that the designer is paid. This company puts a lot on the table before the work gets started.

And as the saying goes: the bigger the risk, the bigger the reward.

While I am not taking a stand either for artists or for companies, I am trying to illustrate a complete picture to clarify why the laws are the way they are.

What’s a designer to do?

If you are a designer or an artist and you ask your boss or your HR department if you can include your work in your portfolio, be prepared for the answer to be no. If you skip the asking part and display your work in an online portfolio, it is highly probable that you will be asked to take your work down, even if you have given proper credit.

Your best bet is to do the following:

Know your worth

Remember that your salary is the exchange for your work. It therefore behooves you to do your research and to negotiate a salary that you are comfortable with and that reflects your market value. I wrote about this in my article A sane and simple guide to salary negotiation. Even if you think that numbers and negotiating aren’t your thing, keep in mind that you don’t have to do this every day. You have to do it once. You owe it to yourself.

Managing publicly available work

It’s hard to stop a designer from including hard copies of publicly available work in their physical portfolio. Let’s say you designed the artwork for your company’s annual report to shareholders. This is a publicly available document. If you keep a hard copy for your physical portfolio, it’s technically not right, but it isn’t the worst offense. If you try to post it online, however, the company can ask you to take it down at any time because the work belongs to them.

Keep this in mind when you are going on interviews: the company you are interviewing with will also have confidential and/or proprietary information that you will have access to and/or help create. If they see that you have taken work from your old company to impress them, what prevents you from doing the same with their work the next time you’re looking for a job? That is certainly not the impression you want to leave with the interviewers.

Keep creating

Just because you sell your services for a living doesn’t mean you can’t create anything for yourself. Let’s be honest: you probably feel limited either by time or by creative control in your day job to do work that truly reflects the totality of the artist you are. Create your own work to upload to your online portfolio.

Cristoph Niemann, an illustrator, who has notably done work for the New Yorker, felt stuck in his day job and began a project entitled Sunday Sketches. This project then turned into a popular Instagram account, then a book. He actually credits his Sunday Sketches with making him a better artist, because he says the problems-solving skills he learned from the sketches serve him when his is faced with problems in his commissioned works. He talks more about this in his episode of Netflix’s original series Abstract: The art of design.

If you’re really at a loss for inspiration or you don’t have the material or critical eye you need to produce high quality work on your own, try taking a class. There are many artists who need the structure of an assignment or want the feedback from other designers to produce non-employment work worthy of their online portfolio.

Score brownie points

Having interviewed designers in the past, I will tell you what really impressed hiring managers. They were automatically hooked if a candidate did a mock-up based on the brand. Since you’re already doing research on the company for the interview, take a little extra time to get a sense for the look, feel and general mood of the brand and do a little something. It doesn’t have to be a grand work, but it gives the hiring manager a feel for your skills and is a concrete demonstration of your interest for the position. Most candidates don’t do this, so it’s a surefire way to stand out and be memorable.

While the law is very clear with regard to commissioned works, as in the Marvel v. Kirby case, the practical issue remains one that is hotly debated design communities. I hope I’ve been able to shed light on the matter from an HR perspective and have given you ideas, as a designer, about how to keep your portfolio current for future meetings with prospective employers.