The portfolio clause is one of the most important clauses for an Agency. In the absence of a portfolio clause, an Agency is generally limited to saying that it worked on a Client project (unless a confidentiality agreement is in place) but it cannot use any images of the work. Thus, the Agency should address portfolio rights proactively to ensure it has the rights it needs.
While a portfolio clause can take many forms, the key elements an Agency is looking for in a portfolio clause include:
- what Client information Agency can use (e.g., name, logo)
- What information about the work Agency can use (e.g., an anonymized description of the work, images of the work itself, rejected concepts)
- How the portfolio can be used (e.g., web, print, social channels, submissions for awards or recognition).
Note that you do not need to retain the copyright in your work to use it in your portfolio. You only need written permission from the Client. Effectively, a license from your Client.
A thorough and Agency favorable portfolio clause might read something like this:
📑 Portfolio. After Client has released Agency’s work to the public, Agency may use Client’s name, links to Client’s website, a description of the work, and images of the work (including unused concepts) (i) in Agency’s portfolio (written and electronic) to promote and demonstrate its work, (ii) in media publications, (iii) in Agency’s social channels, and (iv) in submissions to competitions for purposes of pursuing awards of recognition. Agency may use its work in these ways without additional compensation to Client.
Some notes about a portfolio clause:
- Only After Public Release. This almost goes without saying, but only use work after it has been released to the public. It is reasonable for Client to ask that this restriction be made explicit in the portfolio clause as in the example above.
- Include Concepts. In branding work, it is common to develop a few different logo variants and have the client choose one. If you want to be able to use the concepts that were not selected, call that out specifically. A Client can be understandably sensitive about publishing branding that isn’t “official.” If you want to use rejected concepts, you might consider dealing with this on an as-needed basis.
- Try to Avoid Consent. Ideally, the Agency’s portfolio use won’t be subject to the Client’s prior consent. The reason is that consent can be withheld (sometimes for reasons unrelated to the work) and can be time consuming to obtain. That said, it reasonable for a Client to ask that an Agency obtain consent to portfolio use. If the Client asks for a consent right, see if you can get your typical portfolio use (e.g., website) excepted so the consent right only applies to additional uses (e.g., submission to a magazine for award or recognition). Alternatively, ask that the Client not unreasonably withhold its consent.
- Describe Work Accurately. It is fair for the Client to require that portfolio use accurately describe the Agency’s role in the project.
- Be Specific. Don’t simply say that “portfolio use” is permitted. Think about the specific uses that are needed and describe them with specificity. For example, you may want to display work on your website and other digital media (e.g., reel), you may want to use print samples, or 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.
- Consider Third Party Content. Remember that if a portfolio piece has embedded third party content (e.g., music, stock photography), you may need additional licenses to use that third-party content in your portfolio since the original licensed use was for Client’s project.
- Dealing with Silence. 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, it is unlikely to snowball into a larger liability. Simply taking down the portfolio piece typically addresses the client’s concerns.
- Coordinate with Confidentiality Obligations. Be mindful of any confidentiality agreements you may have signed at another stage of the project. Make sure the confidentiality clause doesn’t inadvertently restrict your desired portfolio use. If there is a confidentiality agreement in place, address with language like the following:
📑 Portfolio. As an exception to the Confidentiality Agreement dated [date] between Client and Agency, after Client has released Agency’s work to the public, Agency may use ...
Keep these tips in mind to get your Agency and your Client on the same page about portfolio use of the work.