Can an agency claim ownership of work I created before our contract?

No. Under standard intellectual property law, ownership of work created prior to a contract remains with the original creator unless a written assignment agreement explicitly transfers those rights to the agency.

What is 'Background IP' in a contract?

Background IP refers to intellectual property, tools, or methodologies created by a party before the effective date of an agreement. It is distinct from 'Foreground IP,' which is created during the term of the contract.

How can I protect my pre-existing portfolio work?

You must include a 'Background IP' clause in your contract that explicitly lists your pre-existing work and retains ownership for you, while granting the agency a limited license to use it.

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.

How much does TermScore cost?

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.

Is my document data secure?

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 portfolio work created pre-contract

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

No. An agency cannot legally claim ownership of work you created before signing a contract unless you explicitly sign away those rights in a written agreement. Intellectual property laws protect your pre-existing work as 'Background IP,' meaning ownership remains with you by default unless a valid assignment clause transfers it.

The Legal Distinction: Background vs. Foreground IP

To protect your portfolio, you must understand the fundamental legal divide between what you bring to the table and what you create during the engagement.

Defining Background IP

Background IP consists of all assets, code, designs, or methodologies developed by you prior to the 'Effective Date' of your contract. This includes your personal portfolio, proprietary templates, and custom code libraries. Because this work was created outside the scope of the agency's employment or engagement, the agency has no inherent claim to it.

Defining Foreground IP

Foreground IP is the work created specifically for the agency during the term of the contract. This is typically governed by 'Work Made for Hire' doctrines (in the U.S.) or specific assignment clauses that transfer ownership to the client upon payment.

Key takeaway: Always ensure your contract contains a 'Background IP' definition that explicitly excludes your pre-existing portfolio from the definition of 'Deliverables' or 'Work Product.'

Action Item: Audit your current contracts for a 'Definitions' section. If 'Work Product' is defined broadly to include 'all work created by the Contractor,' you are at risk of losing your pre-existing IP.

Red Flags in Agency Contracts

Agencies often use boilerplate templates that are heavily skewed in their favor. Watch for these specific clauses that attempt to strip you of your pre-existing work:

Broad Assignment Clauses: Language stating that 'all work created by the Contractor, whether before or during the term, shall be the sole property of the Agency.'
Work Made for Hire (WFMH) Overreach: Clauses that attempt to classify pre-existing work as WFMH, which is legally impossible for work created before the contract existed.
Perpetual License Grants: Language that grants the agency an 'irrevocable, worldwide, royalty-free license' to your entire portfolio, effectively stripping you of the ability to control your own work.

Clause Type	Risk Level	Impact on Portfolio
Work Made for Hire	Critical	Transfers all ownership to agency
Broad Assignment	High	Includes pre-existing work by default
Background IP Exclusion	Low	Protects your rights

Action Item: If you see a 'Work Made for Hire' clause, insist on adding a carve-out: 'Except for Background IP, which shall remain the sole property of the Contractor.'

How to Protect Your Portfolio Legally

You do not need to be a lawyer to secure your rights. Follow this three-step process to ensure your pre-existing work remains yours:

Create an Exhibit A: Attach a document to your contract that lists your pre-existing assets, tools, and portfolio pieces. Label this 'Background IP.'
Include a Retention Clause: Add a clause stating: 'The Contractor retains all right, title, and interest in and to all Background IP. The Agency is granted a non-exclusive, non-transferable license to use such Background IP only as necessary to utilize the Deliverables.'
Limit the License: Ensure the license is limited to the specific project. Do not grant a license that allows the agency to resell or modify your underlying tools or templates.

Key takeaway: Never sign a contract that does not explicitly define and exclude your Background IP. If the agency refuses to include an exclusion clause, they are likely attempting to acquire your proprietary assets for free.

Action Item: Before signing, create a digital inventory of your portfolio assets. If a dispute arises, this inventory serves as your primary evidence of ownership.

The Role of Jurisdiction

While the principles above are standard in the U.S., U.K., and Canada, local laws vary. In the U.S., the Copyright Act of 1976 requires a written instrument for the transfer of copyright. In some European jurisdictions, 'moral rights' cannot be fully assigned, providing an extra layer of protection for creators. Regardless of jurisdiction, a clear written contract is your best defense against litigation.

TermScore can automatically analyze your contracts to identify hidden 'Work Made for Hire' traps and missing 'Background IP' protections. By uploading your agreement, you can instantly see if your portfolio rights are at risk, allowing you to negotiate with confidence and keep ownership of the work you created before the contract began.