What is a 'Work Made for Hire' clause?

A 'Work Made for Hire' clause is a legal provision that transfers ownership of created works from the creator to the hiring party. If applied to pre-existing work, it can inadvertently strip you of your portfolio rights.

How can I protect my portfolio in a contract?

You must include a 'Background IP' or 'Pre-existing IP' exclusion clause that explicitly lists your prior work as excluded from the assignment of rights to the agency.

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 demand ownership of my pre-existing portfolio work?

No. An agency cannot legally claim ownership of your pre-existing intellectual property unless you explicitly assign those rights in a signed contract. Under copyright law, you retain full ownership of all work created prior to the engagement. Any attempt by an agency to claim this work must be explicitly agreed to by you in writing.

Key takeaway: Silence in a contract does not grant the agency rights to your past work. However, poorly drafted 'Work Made for Hire' clauses can create legal ambiguity that agencies may exploit to claim ownership.

Understanding Intellectual Property Ownership

In the United States, the Copyright Act of 1976 dictates that the creator of a work is the initial owner of the copyright. When you enter an agency agreement, you are typically assigning rights to new work created during the term of the contract. Pre-existing work, often referred to as 'Background IP,' is distinct from 'Foreground IP' (the work you produce for the client).

The Danger of Overbroad Assignment Clauses

Agencies often use boilerplate Master Service Agreements (MSAs) that contain sweeping language. You must scan for these red flags:

'All work performed' language: Clauses that claim ownership of 'all work, regardless of when created.'
'Work Made for Hire' definitions: Definitions that fail to distinguish between new deliverables and your existing portfolio.
'Entire Agreement' clauses: Provisions that invalidate any prior verbal promises made by a recruiter or hiring manager.

Comparison of IP Rights

Category	Ownership Default	Contractual Risk
Pre-existing Work	Creator (You)	High (if not excluded)
New Deliverables	Agency/Client	Low (standard practice)
Tools/Methodologies	Creator (You)	Medium (often claimed)

Action Item: Review your current contract for an 'IP Assignment' section. If it does not explicitly define 'Background IP' or 'Excluded Work,' you are at risk.

How to Protect Your Portfolio

To ensure your portfolio remains yours, you must implement specific protective measures before signing any document. Do not rely on verbal assurances that 'we only care about the new stuff.'

Create an Exhibit A: Attach a document to your contract listing your portfolio pieces, website URLs, and specific assets that are excluded from the agreement.
Insert a 'Background IP' Clause: Add language stating: 'The Consultant retains all right, title, and interest in and to all pre-existing intellectual property, including but not limited to the items listed in Exhibit A.'
Limit the Assignment: Ensure the assignment of rights is strictly limited to 'Deliverables created specifically for this engagement.'

Key takeaway: Always define what you are giving away. If the contract does not define the scope of the assignment, the agency may argue that the scope is 'everything you touch' while under their employ.

Jurisdictional Nuances and Enforcement

While federal copyright law provides a baseline, state laws—particularly in California, New York, and Texas—often have specific protections for independent contractors. For instance, California Labor Code Section 2870 limits an employer's ability to claim ownership of inventions created on an employee's own time without using company resources. While this applies primarily to patents, the principle of protecting your personal assets is a strong legal defense in contract disputes.

When to Seek Legal Counsel

If an agency refuses to remove a clause claiming your pre-existing work, you should consider the following:

Negotiation: Propose a 'License' instead of an 'Assignment.' Offer them a perpetual, royalty-free license to use your work for the project, while you retain ownership.
Redlining: Strike through the offending language and replace it with a clear exclusion of your portfolio.
Risk Assessment: If the agency insists on ownership, evaluate the value of the contract against the value of your career-long portfolio.

Action Item: If you are unsure about the legal weight of your contract's language, do not sign it. Use a specialized tool to flag these specific risks before they become a liability.

Automate Your Contract Review with TermScore

Navigating complex IP clauses can be daunting, but you don't have to do it alone. TermScore uses advanced AI to instantly scan your contracts, identifying overbroad assignment clauses and missing 'Background IP' protections. By highlighting these risks in seconds, TermScore empowers you to negotiate with confidence and protect the work you have spent years building. Upload your contract to TermScore today to ensure your portfolio remains yours.