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Avvocato Arlo Canella
As providers of legal assistance in copyright cases (for artists, architects, photographers, designers, etc.), the following question is often raised by our clients: “Can I publish my portfolio online? Is it my right?”
Answering to this question is rather complex. As usual, we will deal with it step by step:
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The portfolio describes the peculiarities of creative people, through the collection and presentation of their most representative works. It is quite clear that the portfolio allows authors to synthesise very well, also visually, their experiences and abilities.
The portfolio is essential to properly introduce oneself, hence it must be carefully designed. If the portfolio can certainly be realised in a printed version, a digital version very often also exists on the Web (which can be very useful to make oneself known in the field).
As the portfolio usually comprises works carried out “for clients”, it is only natural that it will end up influencing the professional’s quotation. The more important the clients for whom one has worked, the higher the remuneration one can ask for.
Giving up the portfolio is beyond question. Failing to present the works that are part of our professional history could jeopardise the chance of properly showcasing our skills and consequently of effectively attracting new clients.
All authors should therefore always include a clause in each contract that expressly allows them to update their portfolio by publishing their new work and mentioning their clients.
Unfortunately, this is not often the case and the law is not clear at all. We will now examine in detail what the law prescribes and the practical management of the unfailing need for a portfolio.
The Italian legal system does not provide anything specific about the “portfolio right“. In fact, Law no. 633 of 22 April 1941 on copyright protection merely specifies that each author is entitled to patrimonial rights (articles 12-19) and moral rights (articles 20-24).
Notably, the law specifies that “regardless of the exclusive rights of economic exploitation of the work […] and even after the transfer of such rights, the author retains the right to claim authorship of the work…” (see art. 20).
Many people claim to derive a “portfolio right” from this provision. In my opinion, the quoted law mainly addresses the offence of plagiarism, that is, the author’s right to prevent others from unduly claiming authorship of his works.
I therefore do not think that the law provides for the author the right to continue to dispose of his work when it has been created for a specific client.
Let us analyse more clearly the reasons.
The Italian Supreme Court of Cassation clearly states: “where there is a service contract for the creation of an original work, the author retains the authorship as the creator of the work but, as a result of the professional service contract, the client acquires the economic exploitation rights within the limits of the subject and the purposes of the contract” (see Civil Cassation, Section I, 24/06/2016, no. 13171).
Therefore, whenever the artwork is created for a client, the author is only entitled to moral rights, while the patrimonial rights are vested in the client without the necessity of any formal transfer of the right. This means that, although the law assigns the author both moral and patrimonial rights, in the event of a work contract, the right is divided (and the author is only entitled to the moral profile).
By producing an online portfolio, authors create a public document aimed primarily at their own commercial advertising, which is mainly related to the financial exploitation of their works. This could lead to the assumption that the right to an online portfolio would be legally foreclosed for having produced the work for a client.
Despite the above-mentioned, I believe that all authors cannot relinquish the possibility of introducing themselves through a public, complete and accurate portfolio.
For this reason, it is worth exploring the risks for an author who chooses to publish his portfolio online in spite of a questionable and incomplete legislative framework.
Unless the contract with the client specifically prohibits the presentation of works for self-promotional purposes, I believe that an author who posts his work online without permission from his or her clients is hardly at risk.
Even if his/her behaviour should prove unlawful, the author would not necessarily suffer substantial damages. In the Italian legal system, as a general rule, compensation for damages must be confined to neutralising the damage materially suffered by the victim. However, I do not see how it would be possible to quantify substantial damage for the author to account for an actual fact, namely the authorship of a work. Even if the offence existed, the sentence of compensation would not be worth fearing.
The violation of the moral right cannot be charged to the author, because the moral right (separately from the patrimonial right) would still belong to him/her in any case and the relative damage could not be liquidated by the Judge. It goes without saying that, as in many other situations, the author of the Portfolio will have to be accurate and measured in the presentation of his works in order not to “fall into” the violation of other rights.
Often the portfolio cannot fail to mention the trademark of the client who commissioned the work. Note that the trademark is a sign of recognition for its owner.
The trademark’s owner may indeed prevent any third party from using the trademark to identify products or services similar to those for which it is patented. Well-known trademarks even have stricter protection as their owner can prohibit their use to distinguish any product or service.
Conversely, with regard to a trademark included in a portfolio, its mention only provides an accurate contextualisation of the work and does not aim to distinguish the author’s services.
It might however prove to be redundant, improper, and exploitative, in which case the owner might complain about being inappropriately cited. As a matter of fact, trademark owners pay a lot of attention to this aspect in the assignment contract, when commissioning work from artists and creatives.
It is common practice to specifically regulate both the hypothesis of public mention of the trademark and the case of its curricular and/or portfolio use. In the absence of an explicit provision, accuracy, moderation, and truthfulness (on the part of the author drafting the portfolio) become even more necessary.
The topic of portraits is clearly relevant to the case of the photographers’ portfolio. In order to publish someone’s portrait, there must necessarily be an authorisation or a right to do so.
Article 10 of the Italian Civil Code explicitly states that “if the image of a person […] has been exhibited or published in circumstances other than those in which exhibition or publication is permitted by law, or with detriment to the decorum or reputation of the person […], the judicial authority, at the request of the person concerned, may order the cessation of the abuse, without prejudice to compensation for damages”.
Needless to say, any photographer should always gather the portrait subject’s consent prior to using his or her image, detailing the purpose. This consent can be given in the form of a release or a contract.
The topic is quite articulated and falls outside the scope of this paper as the discipline recognises three different types of photographs:
I would like to remind you that in relation to simple photographs, the Italian law clearly states that “if the picture has been taken during the course and in the fulfilment of a contract of employment or work, within the limits of the contract’s object and purpose, the exclusive right belongs to the employer or commissioner“ (see Art. 88 of the Copyright Law).
I therefore advise you to be cautious and I suggest that you include the discipline of mention and portfolio in your assignment documentation.
Avvocato Arlo Canella
