Can an agency claim ownership of my pre-existing portfolio work in an MSA?

No. An agency cannot automatically claim ownership of your pre-existing work through a standard MSA. Intellectual property created before the contract date remains yours unless you sign a specific assignment agreement transferring those rights.

What is a 'Background IP' clause?

A Background IP clause is a provision that explicitly carves out your pre-existing work from the 'Work Made for Hire' definition, ensuring the agency does not gain ownership of your prior portfolio.

How do I protect my portfolio in a contract?

You must include a 'Background IP' schedule or clause that lists your pre-existing assets and grants the agency a limited, non-exclusive license to use them solely for the project, rather than transferring full ownership.

A TermScore is an AI-generated risk rating from 0 to 100 that evaluates the fairness and risk level of any legal document. A score of 86-100 means the contract is highly favorable, while 0-30 indicates dangerous terms you should walk away from.

What types of documents can TermScore analyze?

TermScore analyzes any legal document including freelance contracts, employment agreements, residential leases, NDAs, brand sponsorship deals, SaaS vendor agreements, and rental applications. Upload PDFs, Word documents, or images.

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TermScore offers a free plan with 3 scores per month. The Team plan is $15/month for 30 scores, and the Professional plan is $50/month for 500 scores with team collaboration features. One-time purchases are also available: a single score for $5 or a 5-pack for $15, with no subscription required.

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Yes. Documents are processed in memory and analysis results are stored encrypted. TermScore never shares your document data with third parties and you can delete your data at any time from your dashboard.

Can an agency legally claim ownership of pre-contract freelance portfolio work in a master service agreement

Can an agency legally claim ownership of pre-contract freelance portfolio work?

No, an agency cannot legally claim ownership of your pre-existing portfolio work simply by including a broad 'Work Made for Hire' clause in a Master Service Agreement (MSA). Intellectual property created prior to the effective date of the contract remains your exclusive property unless you explicitly sign a written assignment transferring those specific rights.

Key takeaway: A standard MSA clause claiming 'all work produced' is legally insufficient to strip you of pre-existing IP, but it creates a significant litigation risk. You must explicitly carve out your background assets to avoid costly disputes.

The Legal Reality of 'Work Made for Hire'

In the United States, the Copyright Act of 1976 dictates that 'Work Made for Hire' applies only to work created during the scope of employment or under a specific written agreement for commissioned work. It does not retroactively apply to work created before the agreement existed. However, agencies often draft MSAs with overly broad language that attempts to capture 'all intellectual property related to the services provided.'

Common Red Flags in MSA Language

Overbroad Definitions: Clauses that define 'Deliverables' to include 'all materials provided by Contractor, whether created before or after the Effective Date.'
Total Assignment Clauses: Language stating the contractor 'hereby assigns all right, title, and interest in any and all works related to the project.'
Lack of Carve-outs: The absence of a 'Background IP' or 'Pre-existing Materials' section.

Action Item: Review your MSA for the word 'all.' If the contract claims ownership of 'all materials provided,' you must strike that language and replace it with a specific reference to 'Deliverables created under this Agreement.'

Comparing Ownership vs. Licensing

Understanding the difference between an assignment of rights and a license is critical for protecting your portfolio. Agencies often confuse the two to their advantage.

Feature	Assignment of Rights	Non-Exclusive License
Ownership	Agency owns the IP	You retain ownership
Duration	Perpetual	Limited to project scope
Usage	Agency can sell/modify	Agency can only use for project
Portfolio Rights	You lose rights to show work	You retain rights to show work

Action Item: Always push for a 'Non-Exclusive License' for your pre-existing assets. This allows the agency to use your work for the project while ensuring you remain the legal owner.

How to Protect Your Pre-existing IP

To ensure your portfolio remains yours, you must implement a formal 'Background IP' schedule. This is a list attached to your contract that explicitly identifies the work you created before the engagement began.

Create an Inventory: List every asset, code library, or design element you intend to use that was created before the contract start date.
Insert a Carve-out Clause: Add a clause stating: 'Contractor retains all right, title, and interest in and to all pre-existing materials, including those listed in Schedule A.'
Grant a Limited License: Grant the agency a 'non-exclusive, royalty-free, perpetual license' to use those specific assets only for the purposes of the project.
Retain Portfolio Rights: Explicitly state that you reserve the right to display the work in your professional portfolio, regardless of the agency's ownership of the final project deliverables.

Key takeaway: If an agency refuses to sign a contract with a Background IP carve-out, they are likely attempting to acquire your proprietary tools or methodologies for free. This is a major red flag indicating a predatory business practice.

Jurisdictional Nuances

While the principles of copyright are federal in the U.S., contract law is governed by state law. In states like California (under Labor Code 2870), there are specific protections for inventions created on your own time without using company equipment. However, relying on state law is a reactive strategy. A proactive contract is always superior to a courtroom defense.

Action Item: If you are working with international clients, ensure the contract specifies the governing law. If the contract is silent, you may be subject to the laws of the agency's jurisdiction, which could be significantly less favorable to independent contractors.

Automate Your Contract Protection

Navigating complex legal language in MSAs is time-consuming and prone to human error. TermScore uses advanced AI to instantly scan your contracts for predatory 'Work Made for Hire' clauses and missing 'Background IP' protections. By uploading your agreement to TermScore, you can identify hidden risks in seconds and ensure your portfolio remains your property before you ever sign on the dotted line.