Cease and Desist Received: No Portfolio Work Allowed
2 years ago I was hired by a video production house to create several animations for an infomercial for Kaballah Center International, Inc. Since they were completed I’ve been showing them off as part of my portfolio. In early March I decided to expand the reach of my portfolio by setting up the video hosting part of it on YouTube. Last Thursday I received a Cease and Desist letter from their law firm, Wolff & Samson P.C., demanding that I remove the videos as I was infringing on Kaballah’s copyright ownership.
As far as I knew it was perfectly legal to expect fair use of any work-for-hire production to be used as part of an artist’s portfolio. My handy Graphic Artist Guild Pricing and Ethical Guidelines handbook said as much (11th edition, page 26, paragraph 7).
My first question is, am I correct? Do I, as a graphic artist, have the right to show work I’ve done for hire as part of my portfolio in order to promote my services and prove that I can do what I claim to be able to? What are the limits? Can I use a clip? Can I only use it on my site? Can I only use a screenshot? Can I even mention the client’s name? It’s going to be very difficult for visual artists to make a living if such restrictions are put on them.
Of course, because I was hired very loosely by the production company, there are no specifics in the contract I wrote up pertaining to this. I believe that unless specifically stated, that I am not allowed to show work as part of my portfolio, I have a reasonable expectation that fair use covers my right to use work I’ve done as part of my portfolio, and hence my self promotion.
My second question, which I’m sure is in limbo due to the explosion of social networks, is: can a social network such as YouTube (CGTalk, XPLSV.tv, Flickr, etc.) be considered an extension of an artists portfolio? The law firm has already contacted YouTube to ask that the videos be removed. I have also contacted YouTube to clarify what their stance is on this. In the meantime I’ve made the videos private, until such time as the matter is resolved.
I know there have been a great deal of lawsuits and C&D’s flying around as everyone tries to figure out how new Internet technologies and social behaviors emerge and how it effects intellectual property from movies, to music, to images. There are currently two bills in Congress that would make any image that is online available to anyone to do as they will with (use in an ad, copyright themselves) if a “reasonable” search has been made, but proven to be unsuccessful, of the owner.
It seems to me that perhaps lawyers have no problem pursuing cases that are on shaky ground due to the inability of laws to keep up with technology. After all, they get paid for their time and the worst case scenario is that they will get paid even if they are judged incorrect, but still can claim that they were diligent. Like any legal matter, the ultimate winner is the lawyer!
I’ll keep updating this entry until the issue is resolved. One way or the other I’m sure it’ll be helpful to other visual artists.
p.s. Although I was told that the work would be for an infomercial only, the full video has been shown in various presentation formats and currently resides on the home page of http://tv.kabbalah.com.