Proper Use of Client Materials in Marketing

The ability for a client to view your portfolio is of utmost importance in client-facing industries. (Looking at you, event planning, graphic design, web design, and photography). One often assumes that she has free reign in posting clients’ projects for all to see. But, that is not necessarily the case. This post touches on some legal hurdles that apply to the proper use of client materials and the “quick fixes” that might save you from legal headaches when marketing your business.

Use of Client Materials & Copyright Considerations

As you likely know by now (from posts such as this and this), generally speaking, the person that creates a creative work automatically owns the rights to it. (That is, unless there is something in writing, signed by the author, that states otherwise.) Thus, depending on the contents of your client agreement, the client may own the copyright in anything you create for that client.

The Quick Fix: If you wish to use work you’ve done for a client as a part of your portfolio, you would have to:

  1. Obtain permission from the client (in the form of a license or through your professional services agreement); or
  2. Make clear in your agreement that you own the copyright in those materials created for your clients.

Use of Client Materials & Right of Publicity Considerations

The Right of Publicity is a right that each of us has under state law. It applies regardless of celebrity status. Under the law, every individual to control the commercial use of his or her name, image, and/or likeness. Those in the photography industry, event planning industry, and fashion industry in particular should familiarize themselves with the concept of the right of publicity. A photographer may wish to publish a photograph of the client as part of her portfolio. An event planner may wish to publish a photograph of a client at one of her events or share a testimonial. A fashion brand may want to  share an image of a celebrity wearing the brand’s offerings. Each of these activities could put you in jeopardy when it comes to right of publicity.

The Quick Fix: Only share a photograph or testimonial after obtaining permission from the client or celebrity.

Use of Client Materials & Confidentiality

Even if a business or creative professional maintains 100% of the copyright in its creative works, a non-disclosure agreement or confidentiality provision may prevent you from sharing a photograph or testimonial. This means that even if you create something for a client that perfectly embodies the type of work that you do, obligations of confidentiality could prohibit you from sharing.

The Quick Fix: Take care to examine any contractual obligations you have to your client prior to sharing the photograph or testimonial.

What’s next? Click here to download your [free] Essential Legal Checklist from Spear IP.

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