Understanding and Negotiating Your Portfolio Clause

The portfolio clause is an important piece of any creative services contract. While straightforward, I’ve seen disputes arise out of missing or incomplete portfolio clauses. Consider the following when negotiating your next creative services agreement to make sure the portfolio clause does all you need it to do.

  • This almost goes without saying, but only use work that has been released to the public. Do not use work before the client has released it. Its reasonable for your client to ask that this restriction be made explicit.
  • Ideally, your portfolio use won’t be subject to prior client consent. That said, it reasonable for your client to ask that portfolio use be approved in advance. If this happens, see if you can get your likely / typical portfolio use approved at the outset of the project so the consent right only applies to additional uses.
  • It is fair for your client to require that portfolio use accurately describe your role in the project. For example, you may be doing a new web design but another vendor may be doing the development. A client can fairly ask that you specify that your role was limited to design. This is especially important to consider when you are granting portfolio rights to subcontractors that may be working for you.
  • For the most clarity, don’t simply say “portfolio use” is permitted. Think about all the specific types of uses you may want to use and describe them with specificity. For example, you may want display work on your website or other digital media (e.g., reel), you may want to use print samples, you may want the right to display the work on your social channels, in competitions, at festivals or shows, or in displays around your office. Describe all the uses you need.
  • Be sure to also state that you have the right to use the client’s name and logo as part of your portfolio.
  • Out of an abundance of caution, you may choose to specify that your client isn’t entitled to compensation for your portfolio use.
  • Be mindful of audio or visual work that includes licensed content such as stock photography or music. Often the license to this content that you obtain on behalf of your client does not also allow you to use the work in your portfolio. So, consider whether you need additional license rights to use a work in your portfolio.

Where a contract is silent on portfolio use, you might choose to proceed on the theory of “ask for forgiveness, not permission.” While a client is probably on solid ground to ask that you take down any portfolio pieces, in most instances, simply taking down the portfolio piece will address the client’s concerns. A few exceptions to this:

  • One exception to the “ask for forgiveness” approach: If your work is on systems or branding that your client uses internally, you should be very careful about using these materials in your portfolio. Internal systems and branding could be trade secrets or strategically valuable to the client. Best get permission in advance in these cases. If a client resists, see if you can get permission to anonymize the work so it doesn’t identify a specific client or reveal key strategic information.
  • Be mindful of any confidentiality agreements you may have signed at another stage of the project. Absent a specific exception, your portfolio use might be in breach of the confidentiality agreement.

Keep these tips in mind to get you and your client on the same page about what you can do with the work when the project is complete.

Learn about more common provisions in our (ongoing) series, Anatomy of a Services Agreement.