internship won’t let me use my work samples in a portfolio

A reader writes:

I intern at a high-end design company where we create one-of-a-kind visual art. I am an unpaid intern. The studio manager has told me that despite me creating artwork for the company, I have no rights to use it in my portfolio ever. She also said that many of the techniques I’ve learned at the internship I cannot use when I move on. This was when my internship was ending and I wanted samples for my print portfolio. Is this true?

I obviously would steer away from copying work I’ve done to use at another company, but as far as my portfolio goes, I feel like I should be able to show people photographs and samples of what I’ve worked on while I was at the company. It isn’t really possible for me to recreate the work I’ve done outside of the studio because I don’t have the resources. They are using painting and drawings that I created with my own hands and then used their resources and guidance to reproduce. Many of these samples are what they show to clients to give them a sense of the studio’s capabilities.

Essentially, my question is, what can an unpaid art studio intern expect in terms of being able to show physical representation of the work they’ve done?

It’s true that the work that you create for your employer belongs to them, and they say how it can be used.

But it’s pretty unusual for an employer to refuse to let you use samples of your work in a portfolio, particularly when it’s artwork (as opposed to, say, confidential company documents that could contain trade secrets or sensitive client information). Unusual, but with in their rights to do — because, again, they own the work you produced while employed by them. (Of course, I’m not sure how they’d know if you included samples of your work in your portfolio, as long as you don’t put it online — so you might choose to go ahead and put it in a hard-copy portfolio to show to prospective employers anyway.)

But as far as owning skills and work techniques that you developed while working there? I’d need to know more about exactly what those techniques are, but in most cases they shouldn’t be able to prohibit you from using those again — unless the specific techniques are patented or you signed an agreement to that effect at some point. (There might be other exceptions to that; lawyers, feel free to weigh in.)

Overall, the situation sounds shady. If they have good reason for these unusually strict requirements, they should have filled you in before you took the internship so that you could have decided if you were interested in working on such atypical conditions. You might not have taken the position if you’d known. Or maybe you would have, but I’m sure you would have felt better about the whole thing if you’d agreed to it up-front, rather than having it mentioned to you afterwards.

Oh, and hey, while we’re on the subject of what they can and can’t do, if they’re a for-profit company, they probably can’t have unpaid internships, at least not the kind it sounds like you have. Unpaid labor at for-profit employers is illegal unless the net benefit is to the worker — and it sounds like they’re profiting quite a bit from your labor. (Of course, this law is broken all the time, generally without consequence, but it’s worth being aware of, particularly if they’re going to jerk you around on other issues.)

{ 132 comments… read them below }

  1. Wilton Businessman

    They can place whatever restrictions they want on your work. It’s unusual that they won’t let you use it in your portfolio unless it is a campaign that isn’t public yet.

  2. AdAgencyChick

    Here’s the dirty secret I’ve learned from 10 years in advertising: don’t ask, don’t tell.

    If you ask, your company will say no, you can’t show it. But I bet that same company wouldn’t consider hiring a new designer without looking at his or her portfolio of past works. So most of us on the creative side simply save our work (or in your case, it would be taking photos, since it sounds like more of the fine-art variety) and trot it out when the time comes to interview.

    I know what the legalese says, but I also think it’s terrifically unfair of a company to expect you to show samples of your work when you want a job with them, but not allow you to show samples of your work once you’re an employee.

    In the future, OP, I’d advise getting copies or photographs of all your work. Be smart about what you do with them — DON’T put your portfolio online unless you have explicit permission from both your company and the client for whom you did the work, if any, and I’d recommend not emailing samples if you can avoid it. But you can bring a hard-copy portfolio or photos and PDFs on an iPad or other tablet to interviews, so you can show the interviewer a representation of your work but ensure that the work leaves the room when you do (and your old employer has nothing to pin on you).

    I can’t speak to the non-portability of techniques, but like Alison I think it sounds shady.

    1. AdAgencyChick

      PS, the intent of doing this is not to pull one over on the company you’re leaving. The real concern that causes companies to slap severely worded agreements on this kind of thing is the possibility that a competitor (or someone hungry for a lawsuit) could see and capitalize on the work you’ve done. And by protecting your portfolio so that it can’t be distributed willy-nilly, I think you solve that problem.

      1. OP

        Wow this is definitely enlightening. They mentioned the reason for them being so strict is because of wanting to avoid a lawsuit, but this makes total sense.

        1. AdAgencyChick

          Yup. Based on a true story, some details changed. Jane (because every bad employee is Jane ;)) works in financial advertising, and her client’s legal team determines that in order to satisfy SEC requirements, every ad put out on behalf of the client needs to have a paragraph-long disclaimer at the bottom.

          When developing concepts, Jane’s team doesn’t put the disclaimer on, because it is ugly and they just want the client to focus on the idea of the campaign, not what an actual ad would look like. Jane saves this version for her portfolio, because it’s prettier than the final version and will give potential employers the best sense of her skills.

          Jane stupidly decides to post your portfolio online. One of the client’s lawyers, whose job it is to scour the Web for potential liabilities, finds Jane’s portfolio, sees in it an ad for their financial services WITHOUT a disclaimer on it, and pitches a fit. If an SEC apparatchik sees it, the client could be sued. This goes all the way up the food chain at the client, the client calls the ad agency in a fit, and the agency barely keeps the account…but Jane is fired immediately.

          THIS is the kind of situation these policies are designed to avoid.

          1. BeenThere

            Ah that makes sense, though ti sucks for the creative. Surely this sort of mis-intrpretation of sample work could be negated by a big watermark *SAMPLE ONLY*

            1. AdAgencyChick

              That *might* dissuade a lawyer, but it might not. More importantly, it won’t stop the other type of person whom the company doesn’t want to see the work — a competitor who can then copy the idea or come up with a counter-campaign faster than they would be able to if they had to wait for the work to disseminate into the marketplace.

              So, I still highly recommend keeping those parts of your portfolio that you do NOT have permission to show, as private as possible — at least a password-protected website, and preferably no online presence at all. For those who need some kind of online presence to attract clients (entrepreneurial types, etc.), I’d recommend putting out feelers to friendly clients to obtain permission, and mocking up your own samples if you can’t get it.

          2. Mike B.

            I’m in healthcare advertising–the situation gets even more complicated when someone distributes concepts that don’t include safety information, and it comes to the attention of the FDA. The situation is surprisingly complicated!

            But the OP’s response needn’t be. You can ignore the instructions outright as long as you don’t leave fingerprints behind. (I’m not 100% sure about the “techniques” part, but it seems to me that they would have their nerve if they profited from your unpaid labor and then didn’t permit you to benefit in terms of professional expertise.)

    2. Mad Quoter

      Perhaps the surest test of an individual’s integrity is his refusal to do or say anything that would damage his self-respect.
      –Thomas S. Monson

    3. Anonymous

      Yes and yes. As a former design and ad agency professional, completely agree. Put it in your portfolio; don’t send via email or online. Sorry, but you need to show your portfolio when applying for creative jobs. You cannot get hired without it. It’d be like applying for jobs but being prohibited from listing some of your past achievements on your resume for certain employers. Can you imagine? Not being able to list anything under the job title? In the creative world, your portfolio is everything. And I am sure you wouldn’t have taken an internship there if you knew that was what you were agreeing to ahead of time (imagine: giving your labor for free but getting nothing in return since you’re prohibited from using your work in your portfolio or using the skills you’ve learned. What would be the point?).

    4. Anon

      I totally agree. If you start asking people “Can I put this in my portfolio?” someone is going to say no. I have years of work files and a portfolio. I don’t ask if I can keep samples. I just do. Of course, I make sure that I DON’T leave “samples” at potential employers’ offices and I don’t post samples online. If you want to do online work, perhaps build that on your own.

      I remember telling a junior staffer to take a copy of a newsletter she produced for her portfolio. She did. What she didn’t tell anyone is that she took the last copy. Somehow, the client found out – I think someone at our office was asked to look for a particular article – and the junior staffer (after she left the company), told my jerk manager and the client I told her to take it for her portfolio (grrrr). She ended up bringing it back to the office and I got reamed. I still stand by taking samples for portfolios, just not the last one and definitely don’t run around telling people someone in the office advised you to do it!

  3. B

    AAM – I am assuming the difference in the legal vs. non legal is also whether the intern is earning college credit. To me that sounds like a benefit yes?

    1. Ask a Manager Post author

      That alone isn’t enough to assure legality. It has to meet all 6 parts of this test:

      1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;

      2. The internship experience is for the benefit of the intern;

      3. The intern does not displace regular employees, but works under close supervision of existing staff;

      4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;

      5. The intern is not necessarily entitled to a job at the conclusion of the internship; and

      6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

      1. KayDay

        …and the law doesn’t require college credit. It’s just an easy way for companies to try to prove that the internship meets requirements 1 and 2.

  4. Joey

    I’d argue that he’s not considered an employee, being unpaid and all. And if he’s not how can they own his work? Either pay up or let me use my artwork however I want.

    1. OP

      if ONLY it was so cut and dry. It’s difficult to force a company to do anything, and it would definitely burn a bridge if I proposed such an ultimatum .

      1. Joey

        I think its at least worth reminding them of the terms you agreed to when you started. After that I’d calculate what they would owe you before you decide whether or not to pursue a wage claim ( and i think you’d likely have one). Sure you may burn a bridge if you file, but they’re already bending you over literally in more ways than one.

        1. Mike C.

          I’m with Joey here. I honestly don’t believe they’re even worth the reference, if they’ll even admit that you were even there in the first place.

      2. Anonymous

        Regardless of whether or not you’d pursue it with them, I think the key here is that you’re not beholden to them. Put it in your portfolio. Don’t tell them. Strictly honest? No. But they already have bent you over, as Joey so illustratively said. And putting your work in your portfolio is standard practice for the industry. Jewelry designers often can’t keep samples of their products, but they do put photos of the in their portfolios.

  5. OP

    OP here
    I realize the internship is definitely illegal, but I did agree to work for free to learn new skills and increase the work in my portfolio. I wasn’t told using the artwork or photographs wouldn’t be possible, so I kind of feel duped. I want to create the best work possible, but I find if I do, I won’t be able to reuse an idea, which kind of stinks.

    The techniques are different fabric treatments and ways of painting on fabric to create texture. You’re right in that I should have taken photographs, but I was promised that I’d receive them at a later date, and when pressed, was told I wasn’t able to have them at all. This is a tough lesson I’ve learned and I will never repeat it!

    1. Anonymous

      It actually doesn’t really make a difference if you agreed to work without pay – it’s still illegal. That they reneged on you being allowed portfolio pieces (see the requirements posted above) is proof that they benefited and you did not. It makes me sad that students/new grads are so vulnerable and taken advantage of so often. Personally, I’d do as recommended and consider filing a complaint, especially if they won’t budge on this issue.

    2. Elizabeth

      OP or others, do you think it’d be worth it to say a politely-worded version of this to the employer? Something like, “I was led to believe that this internship would benefit me by helping me learn new skills and grow my portfolio. Instead, the company has benefited from my work, but I have been told I cannot use any of it in my portfolio to show to prospective employers as samples of the kind of work I can do. Unpaid internships that benefit the company more than the intern are illegal, and I feel deceived by your company’s practices.”

      1. Ask a Manager Post author

        I wouldn’t use the specter of a legal threat — that immediately changes the relationship, generally permanently, and doesn’t always lead to the best outcome. But the OP could/should certainly say, “I took this internship without pay because I wanted to learn new skills and expand my portfolio. If I’d realized I wouldn’t be able to use those new skills or show my work to future employers, I don’t think I would have taken an unpaid internship — to me, that was the benefit that I was receiving for my work. How can we work this out so that we both get what we need?”

          1. Thinking

            Also, OP, if you got this internship through a college or other organization, you should report them to an advisor. My school required internships to graduate and this sort of behavior would have gotten the company blackballed IMMEDIATELY.

            Also, I’d go in on a weekend or show up early (maybe with goodbye donuts?) and snap all the pictures I wanted.

    3. Anonymous

      If the internship is illegal and you didn’t sign documents about confidentiality, I don’t think they have much leg to stand on to stop you from showing what you did.

      And if you feel duped, and they didn’t make you sign something, ethically I don’t see a problem in sharing your work outside. The only downside if it these people bad mouth you or won’t provide a reference. But they duped you and now want you to do something against your interest? Don’t comply.

      I wouldn’t put this work online in public, but have copies you can share.

      1. OP

        Therein lies the problem; In order for me to have photographs I’d have to be sneaky and take them from the company camera or computer, which I don’t think I’d be able to do without being caught, and generally makes me feel gross.
        So I have no photographs and no way of getting them. The only samples I’d have access to are ones posted online if another company used our product from their website.

        But this is definitely helpful and I hope someone else sees this and learns something before the same thing happens to them!

        1. KayDay

          The only samples I’d have access to are ones posted online if another company used our product from their website.

          Does that mean that some of your work is online? If so, you should definitely use that.

        2. Anonymous

          Take them with your cell phone camera. Are their any electronic copies (photos taken to send clients)? Hook your phone up and grab them. I’m sorry, I don’t normally advocate for sneaky tactics, but as a former designer, this really chafes. Their actions are not standard business practice. Design and creative professionals are often exploited–long long hours, very little pay, no ownership or control of their product (which is true everywhere, but in the creative world, it’s a more complicated issue). What you are supposed to get out of this are pieces for your portfolio.

        3. BeenThere

          I’d say grab whatever files you can too! Provided you don’t put them on the internet the company would have a hard time finding out and it would probably be unprofitable and unproductive for them to pursue you with legal action in the event that they dud. After all how much money are they realistically going to be able to sue a creative for?

    4. Mike C.

      I’m sorry but, “I did agree to work for free to learn new skills and increase the work in my portfolio” doesn’t excuse the parent company from their legal obligations under federal labor laws.

      But furthermore, you agreed because it would fill up your portfolio (which it isn’t) and you were promised photos at a later date (which you now won’t be receiving) at all. Even if this agreement was valid, it’s pretty clear that they’re not upholding their end of the deal.

      So, now it’s time for another life lesson. Report them for their illegal internships to your state labor board. OP.

      There are too many people in your line of work that are taken advantage of. You want to be a professional? Demand to be treated like one.

      1. Your Mileage May Vary

        Plus, if you report them, OP, then they won’t be able to do this to the next intern that comes along.

        (Assuming these complaints actually get addressed. Alison, can you tell us more about what might happen to the company if OP filed a complaint?)

        1. OP

          I’d definitely like to know. I really love what the company does, it’s a small studio, and I don’t really want to hurt them as ridiculous as it sounds, but I’m interested in what happens when someone does file a complaint. The company has existed for quite a while using unpaid interns, and I understand this is super common.

          1. HumbleOnion

            If it’s a small studio, they might not even know that what they’re doing is illegal (which totally doesn’t excuse it). How did you end up with this internship? Did you do this internship for college credit? You might get your school involved.

            1. OP

              They’re aware it’s illegal but their logic revolves around it being a small company without a huge corporate budget. It wasn’t for credit, it was a post grad internship I wanted to be a learning environment.

              1. TL

                Um, what?
                That’s hugely troubling. Did they tell you at the beginning of the internship – hey, by the way, this is illegal and you’ll have the right to file against us afterwords?
                Because that’s something I would want to know.

                1. OP

                  They just said they’re providing a classroom situation to learn in and that’s what we’ll be earning from it when I asked. Again, they brought up small company logistics in terms of paying the interns. This is unfortunately much later after I pressed for work samples.

                2. OP

                  I told them it doesn’t seem fair but they said that’s the reality and they really wished they could pay us but just can’t.

                3. Ask a Manager Post author

                  Okay, well, that at least makes it easier to have this conversation with them. You can say, “You acknowledged it wasn’t legal to not pay me, but I agreed to the work because I assumed I could use it in my portfolio, and I’d like to be able to do that.”

              2. Mike C.

                Hey OP, does your school have any low cost legal services available for students? Many do, and talking to a lawyer doesn’t force you into a particular mode of action.

                1. AMG

                  Especially if there is a law program. They use it as a case study for classes, and would likely jump at the opportunity to dig into this.

                2. dejavu2

                  You can also see if a law school in your area has a civil litigation clinic, or an employment law clinic. They would at least give you a free consultation.

          2. Joey

            Here’s the nickle version of what typically happens:
            1. You fill out a form
            2. It’s assigned to an investigator
            3. It’s prioritized (how quickly it moved depends on caseload)
            4. The investigator determines whether there is enough info to investigate (ie details, within parameters, etc
            5. If yes, company is notified of the allegations and asked to provide a response. (This is when the company gets pissed)
            6. Investigator determines whether follow up is needed, may request more statements/evidence and what evidence is credible.
            7. Decision on case.

            1. Ask a Manager Post author

              It’s worth noting that they don’t always take action. I’ve heard from a few people who filed for wages due to them, and their states didn’t act on it (presumably it was de-prioritized in favor of other stuff).

              1. Joey

                Yep. It really depends on the investigator, how serious your state is on wage claims, and how egregious the violation is.

              2. kapuku

                After a two year long battle, the Texas Workforce Commission froze all related bank accounts of a company that owed me wages. Needless to say, I got my check not too longer after that!

        2. Ask a Manager Post author

          Totally depends on whether the agency she reports it to wants to pursue the case — there’s no guarantee that she’ll get results.

          That said, often just having a lawyer notify the employer of the law violation is enough to get them to make amends on their own.

  6. Luis Zach

    You or someone in your network who designs websites could place”noindex,” “nofollow” tags on each page and/or declare them “NOINDEX, NOFOLLOW” in the robots.txt file. Then, you can send people a URL linking to your work but it won’t be searchable and it won’t be violating the NDA. Or you could do a PW-protected site for the same end result.

    Asking people not to post work for hire is pretty common in jobs where intellectual or creative property is involved. My buddy back in TX deals with that as an art director and I helped him with some of the work arounds mentioned above. His employer is really chill but his clients aren’t so much. Most non-competes in terms of “you can’t use any of the skills you learned here” are unenforceable though. The company is essentially saying you can’t work in your field and that’s unacceptable.

    1. PEBCAK

      And what are they going to do? Drag her into court and explain how they illegally used her as an intern?

      1. AG

        Just sending a cease-and-desist letter from the employer’s lawyer, who is likely on retainer, is enough to cause major headaches and bills for the OP, who just spent the past few months working without pay. Alison is right, be careful before you even mention legality of the issue, even if they are in the wrong.

        1. Luis Zach

          My buddy got a cease-and-desist after showcasing artworks publicly on the web. Indeed, large companies keep lawyers on staff for this very purpose, and smaller ones, as you said, may keep them on retainer.

    2. Anonymous

      And if OP is in California, the non-compete agreements that prevent someone from a livelihood are not upheld. California really really frowns on noncompetes and protects the employee. Not so true in other states though.

    3. Luis Zach

      Yes, you have to check the details on a state-by-state basis. I’m speaking generally but my advice should not be construed as legal advice; it is a guideline only. Always consult a lawyer.

  7. Natalie

    I would be really curious to hear an IP lawyer’s take on this, as using works-for-hire in one’s portfolio seems pretty common. A newspaper staff reporter, for example, doesn’t typically own the copyright to the articles they write, but it’s incredibly common to have a clippings book.

    Additionally, I’d be curious if an unpaid intern counts under the “for hire” portion of work-for-hire. The US Copyright Office doesn’t appear to specifically address unpaid internships.

    1. fposte

      I suspect with a proper unpaid internship it would–they’re hired and compensated, even if they’re not paid with money. This one? On a wild speculation, maybe another problem with the failure to benefit your intern is that you lose the “for hire” rights. It would at least make for an interesting defense.

      1. Natalie

        Indeed. After I posted I googled around a bit, and it does appear that illegally hiring unpaid interns also removes the presumption that an employee’s work is work-for-hire. But as in all things law-related, and particular IP law, there appears to be quite a bit of nuance.

    2. Rana

      I’d like to know, too. I’m fairly familiar with the work-for-hire laws governing transfer of copyright (since I do editing work and produce indexes for clients, both of which necessitate a transfer of copyright to my clients) but how it works when the work is unpaid is fuzzy. Basically, it hinges on how close to being a paid employee (by the government’s definition) the OP’s internship is. The closer it is, the more likely any work they did on the job was a work for hire, which means it’s the company who owns the copyright in it.

      So I suspect they probably can prevent the OP from sharing the work in any way other than that which falls under “fair use” (which opens an entirely new can of worms).

      Controlling the employee’s use of skills learned on the job, though? That sounds weird to me.

    3. dejavu2

      I am an IP lawyer. I like IP because it’s an “emerging” area of law, which essentially means you can argue anything and have a chance of winning. I don’t know that the OP would win at the end of the day, but there is definitely enough here that he could drag this out for a really long time in the court system (which he probably, as a normal human, doesn’t want to do). Particularly if there isn’t a work for hire agreement.

  8. IANAL

    AAM, production processes can be protected as trade secrets, even if they are not patented or covered by some type of NDA. I have no idea if that’s the case here, but in general, a patent (or even patentability) is not required for something to be protected. I’m not a lawyer, but my company just settled a big suit related to this.

      1. Anonymous

        I’m pretty sure that it’s copyright and possibly trademark issues here, not patents or trade secrets. If some of the designs have specific product info about products not yet on the market, then *perhaps* trade secrets would come into it. But once the info in such designs is used publicly in anyway there are no longer secrets to protect.

        1. fposte

          I think it’s this part–“She also said that many of the techniques I’ve learned at the internship I cannot use when I move on”–that suggests proprietary processes that could be considered trade secrets.

      2. Mike B.

        Trade secrets have no legal protection whatsoever–they’re used as unofficial alternatives to patents. The advantage is that they are proprietary forever…unless the secret is revealed. (Think the recipe for Coke or KFC.) Processes/formulae that can’t legally or physically be kept secret are patented to give the inventors exclusivity rights for a limited time.

        I suppose the application of some of their techniques developed in-house might be somehow construed as a breach of confidentiality–I’m not a lawyer either–but I have difficulty seeing how it would be exposed, let alone turned into a legal case.

  9. Jamie

    But as far as owning skills and work techniques that you developed while working there? I’d need to know more about exactly what those techniques are, but in most cases they shouldn’t be able to prohibit you from using those again — unless the specific techniques are patented or you signed an agreement to that effect at some point. (There might be other exceptions to that; lawyers, feel free to weigh in.)

    I’m really curious about this part of it.

    I mean it can’t be like a business intern being told not to use this knowledge acquired here of reconciling T- accounts in the future. That’s the best thing about even crappy jobs, all the knowledge and skills you’ve amassed leave with you.

    And if you learned skills that are only useful at that company, were they upfront about that at the onset? Because it doesn’t sound like the most useful of internships if that’s the case.

    1. OP

      No, when I accepted the internship none of the legalities were ever addressed. It was only after the fact that I was told. I actually still haven’t signed a contract about the work I’ve done in the past for them.

        1. Rana

          A contract isn’t needed for work-for-hire status, however. Being an employee who does the work at the direction of an employer is sufficient. In this case, the question is whether the conditions of the OP’s internship meet the minimum requirements to consider the OP an employee.

          This is a situation that really does need someone to take a look at it, because it may well be that not only has the OP not been properly recompensed for their work, but also that the company doesn’t have as clear a copyright on their products as they may assume.

          I would imagine their clients would be very concerned about this state of affairs, because it means that the licensing and control of the designs done for them is not reliable, at the very least.

          1. dejavu2

            Yes, OP would arguably be doing them a favor to sue them. It sounds like the company has no idea what it is doing, legally speaking.

      1. Jane

        They did not provide you remuneration for the services you rendered and you signed no documentation. HMMM… You have no legal obligation to protect anything, you created the works not them and you did not transfer the intellectual property to them. It would be burned bridges but that work would belong to you.

      2. BeenThere

        BINGO you didn’t sign over your IP therefore you OWN it and are free to use whatever you created as you see fit.

        At least that’s my understanding of the IP law when applied to creative works.

        1. Anonymous

          Did you sign away specific copyright works for hire forms when you started? If you didn’t sign it, there’s a good chance you still control the copyright to your works. It’s a really messy part of copyright law, and it’s not very well understood by most studios or artists. I only know about it because we had a lawyer give a talk on it to our professional organization.
          http://www.copyright.gov/circs/circ09.pdf

          (Note: The copyright itself isn’t worth raising a stink about 99.9% of the time, but in a case like this, I’d at least feel better about showing it as part of my portfolio)

          1. Rana

            Whoop, same PDF! (It’s a good one, though. I’ve had to use it a few times with organizational clients unsure on how to work with an outside contractor.)

      3. danr

        If you didn’t sign a non-disclosure agreement when your internship started, I don’t think they can apply one to you retroactively, or if they can, it has to be in writing. If you get anything to sign before or on separation, take it to a labor lawyer first. They might pressure you to sign immediately, but you have the right to take it home and look at it carefully and have an attorney review it.
        Also, start keeping a log of anything that is said to you and copies of any emails or memos. And keep them offsite.

  10. Lulu

    Isn’t the whole point of an internship to learn new skills &/or produce portfolio items that you can later use to gain employment? Unclear what the company can cite as the intern’s “benefit” if they’re expected to basically act like it never happened…

    re: internships in general – my understanding is similar to AAM’s definition of the legalities, but keep hearing I should pursue internships (assuming I come up with specific companies I want to work for or a new “career” I’m interested in), despite being long LONG out of college. All of the ads for internships I see definitely stipulate that interns must be enrolled in college/receiving college credit. Are there really companies out there providing internships-without-credit, or is this another one of those urban myths people like to perpetuate (like cold-calling managers and sending a resume on hot pink paper)?

    1. JT

      If an intern-hosting organization is not willing to structure an internship in a way that can be used for credit, that’s a bad sign. It suggests they’re not willing to think through how it will be educational for the intern.

      But credit isn’t always a good thing and requiring the intern be getting credit is bad. It means the student has to pay his school for the privilege of working for free.

      I took had two internships while in grad school, but was not in a rush to get my degree and preferred to pay for actual classes with teachers, and then have internships as “free” learning opportunities for me that I paid for only through labor, not cash.

      The internships that required I take them for credit were no-go for me – there were so many classes I wanted to take before I finished.

    2. Kou

      No, non-college internships do exist. I think it depends on where you are, though, because in college I lived in one city and interned twice at two separate places that both had a bunch of non-student interns. Graduated, moved to another city, couldn’t get an internship there because they all required you to be a student.

  11. Anonymous

    IANAL, but I believe copyright law has different standards for what counts as “employed” than labor law, and none of the definitions are clear-cut. (With the possible exception of in California.) But it’s not clear that, in IP law, an unpaid intern (who is also not receiving the benefit of skills or portfolio work) would fall under “work for hire”. See http://www.copyright.gov/circs/circ09.pdf

    I’d really advise the OP to consult a lawyer, at least regarding the IP side of things. (Maybe even the unpaid intern side, too, but I’m even more NAL regarding that.)

    1. fposte

      Like you, IANAL, but my reading of the agency law application certainly suggests to me that proper unpaid interns could fall under “work for hire.” Which makes sense for me–it’s not about whether somebody slapped you twenty large for your file, it’s whether you were creating your work as part of your contribution to a larger organization or not.

      And when in doubt–get your rights clear before you provide the creative work in the first place.

  12. Beth

    You can’t utilize the techniques you’ve learned on internship?! Oh, great employer that I’d never want to work for, please explain how I erase knowledge from my head.

    If the items you worked on have been used in publicly visible campaigns (i.e. ad in a magazine), I’d cut a copy out of the magazine and put it in your portfolio.

  13. AB

    Not directly related to the OP’s problem, but I just thought I’d provide here a link that should give some food for thought for designers considering unpaid or very low paid internships to help developing their portfolio.

    Granted, I know sometimes it may be hard for someone to produce a great sample when you don’t have access to the same tools that a company offering internship does, but sometimes it’s just more efficient to develop a portfolio on your own, as suggested here: http://stemmings.com/dont/

    (To quote from the article: “Don’t wait to get hired to start building your portfolio. Start right now. Ignore people who hide behind the old, recursive truism, ‘In order to get a job, you need a portfolio, and in order to get a portfolio you need a job.’ ” )

      1. AB

        Agree; much better to produce something of quality on your on and use it to get a real job or paid freelance work!

  14. Chriama

    Regarding the techniques you’re supposedly not allowed to use:
    Seeing as how this is a small agency, the techniques you learned there were probably not developed in-house. This isn’t electronic/pharmaceutical/manufacturing R&D, and you’re not looking for a senior VP position where they would be concerned that you’re taking their production process secrets to one of their competitors. Therefore, I don’t see how they have any claim to those techniques or any grounds to prevent you from using that knowledge elsewhere. On the other hand, if you mention those techniques on your application for another job and the interviewer checks your references, you could be put in a very unfortunate situation.

    You really do need to to talk to someone about this, because it seems like they free work out of you, and you got nothing in return (because even if it cost them to train you, if you’re not allowed to take that knowledge with you have a net loss). Make sure you bring some suggestions that will alleviate the concerns they seem to have. For example, ensuring that no one has electronic copies of your portfolio or that you watermark your work should be ok.

    Really though, what is their justification for putting all these restrictions on you? Do they want to make it so hard for you to find a job that you continue working for them as an unpaid intern forever?

    1. fposte

      “Seeing as how this is a small agency, the techniques you learned there were probably not developed in-house.” Now there’s an interesting point. OP, do you have any idea of how they say they got these?

      1. Lulu

        She mentions they’re different fabric treatments/techniques – so maybe the people there did “create” them? In which case, they may see it as a cornerstone of their business. However, not sure if they’d be proprietary, as who’s to say others didn’t come up with those (or similar) techniques themselves, on their own. Unless it’s legally trademarked, it doesn’t seem like they’d have much actual defense against the OP (just the whole burned bridges thing).

      2. OP

        Through research and experiments they claim, but most if not all of it is things they’ve pulled from books on the subject. While their way of doing these techniques is based on the limitations of their setup, I can see it being argued for and against them ‘owning’ the technique.

        Their main justification for having these stipulations is that they don’t want someone pulling business away from them. I’m really not trying to do this, I just want to wow hiring managers and companies with my level of skill and dedication to my field.

        1. Natalie

          If you didn’t sign an NDA and they haven’t patented these techniques, they have zero legal claim on them, even if they taught you first.

        2. Rana

          If you can demonstrate that those techniques are published and available to the general public, I think you can make a pretty strong case for their not being proprietary!

  15. Liz in the City

    In addition or instead of reporting these people, you said this was a post-grad opportunity. Could you report it to your university where you saw the posting or to your past/current professors that these people are giving you the runaround on your portfolio? It may not do anything officially, but if their talent pool dries up or you can prevent another person from experiencing this, it might do some good.

    1. Another Ellie

      I think that by post-grad the op means that it was available to people who have graduated, not that it specifically came from her affiliation w/ a university. But getting the word out that these guys are shady is probably still a good idea.

    1. OP

      I’ve seen coverage of this via articles and blogs. I think the reason why people don’t come forward is because later on people rely heavily on the name of the company to secure future employment. As an example “Jane” works for Well Known Fashion Magazine and needs their reference later when she interviews for a position relating to her illegal internship. The name of the magazine is known throughout her field, and although she’s being taken advantage of, the reference can make or break her despite her talent.

      1. Mike C.

        Employers generally accept hearing things like, “my previous employer refused to pay me” without holding it against you.

        1. Natalie

          Sadly, a lot of creative industries have gotten very accustomed to terribly working environments and consider suffering through said environments as “paying your dues”.

          1. anonymous

            The comment above is 100% accurate. Creative agencies are notorious for using less-experienced employees at the bottom of the totem pole to carry 99% of the work. They’re underpaid, required to work crazy hours/on vacation without overtime and often have a high rate of turnover in exchange for bizarre work culture “perks” like having a ping-pong table in the office or wearing jeans and drinking beer. Coolness factor aside (she said facetiously), all of the office culture perks in the world don’t make up for bad management and poor pay.

        2. Kou

          Not if that’s so standard in your industry that you look like a whiny squeaky wheel who can’t handle what everyone else does. Like the big Black Swan unpaid set intern debacle– every statement from every industry professional was along the lines of “if it’s illegal that’s too damn bad, because that’s the way it is– and these people will never work in the industry again.”

  16. Patty

    It seems to me that the OP could pose the whole thing as a question — something akin to “I found information on internships, and unpaid internships are only legal when the intern benefits by learning skills they can use elsewhere, develop portfolios etc.. If I was an intern, the only way I can benefit is by using the techniques and materials you say I can’t have/use., but if I’m not benefitting, then it seems that I’m owed back pay. Which alternative is the truth?

    1. Chriama

      I think that’s likely to come off as disingenuous, because I don’t see how someone could say that in a way that conveyed genuine curiosity. Also, the OP has already stated that the agreement with the company was made with both sides knowing it wasn’t totally legit.

      I think an honest, open conversation about how the company can help the OP leverage this experience for another job is best.

  17. danr

    OP, if you’re asked to sign anything related to your work when you’re leaving, do not sign right away, and consult an attorney. This is normal, and should not be considered a threat by the company.

  18. Hiding Normal Commenter Name So Person in Question Doesn't Find This

    Okay, slightly off-topic, but would it be legal for someone in say, a restaurant job, to work overtime for free in exchange for taking some food home now and then? I know a young person who is literally slaving for her boss, who does let her do this. I told her to stop it now! She is working seven days a week and he holds all the cards. :(

    1. Mike C.

      Yeah, being paid in company scrip hasn’t been legal for decades. In the UK, this sort of thing was first banned in 1464.

    2. Natalie

      This makes me extra sad because getting free food (in addition to one’s normal pay) is often a perk to working in restaurants. I used to get one free meal per shift and half off anything else I wanted.

      1. class factotum

        I got free food when I worked at the faculty club in college (my boss even let us eat first once at a wedding where they were serving lobster!) and I also got paid for all the time I worked. So it can be done.

      2. Jamie

        I don’t think it’s a problem to give the free food (as long as it’s not a code violation) but just that you can’t do it in lieu of pay.

        Isn’t getting a meal free or discounted when working common practice for most restaurants – if your shift is long enough to include a meal break?

        1. Natalie

          Yes, sorry – it’s sad that someone was conned into working in exchange for food only, when it’s incredibly common to get free food + money.

          1. Hiding Normal Commenter Name So Person in Question Doesn't Find This

            I don’t think she was conned exactly; she said she volunteered to do it. She says she loves the job (I would too, if I got free food!), but is doing all this extra work for no pay, just the food, in addition to teaching skating and barely making ends meet. I want her to be my second coach, but she just has no time. I think she needs to find her niche and get out of food service. I feel like she’s wasting herself. But it’s her life, and she wants to be independent right now.

            She’s still very young, so there is time. I just wanted her to know I am here if she needs me. :)

  19. Anonymous

    Leave a review of them on glassdoor.com
    Other people will deserve to know that they pull this kind of thing before agreeing to work with them, especially if it’s one of us who tries to put the research in before accepting an offer.

  20. AMG

    Please keep us updated and please, please fight for yourself, OP. I do t know you but I can almost guarantee that you will regret of if you don’t. I have been there. Best of luck to you.

  21. anonymous

    I’ve been in this position before, and I’ve figured out a good way to handle it. IF you can get digital copies of the files before you leave the company (discreetly – don’t ask first) put them on a cd (organized into a clean, well thought out pdf presentation) so you can make digital copies to show future employers in an interview. You can tell the company you’re interviewing with that you are not allowed to publicly redistribute client work for legal reasons but you will be glad to walk through the artwork with them. You can either leave the cd for them to review or you can show it on your own computer screen during you interview if they give you the opportunity to discuss at that time. Printed portfolios are great too, but with so much of the industry moving from print to digital it’s important to have digital examples to use. Hope this helps!

  22. Sara

    Oh man, this is so rough to read! It may be legal but it’s veyr very very douchey of them to act like this. I went through the same thing, except for a pharmacy; I stayed on for 3 weeks training as a pharmacy technician (no pay), they kept promising they would put me on payroll at a certain date. The entire week prior to my first “paid” day, the owner kept flip flopping, never acknolwedged that he had said a certain thing–I shoudl have known they were shady when the store manager had said “no way in hell you’re gonna get anything in writing from me” ….my instincts were telling me to not do this but I was desperate for a job and thought this would lead to something. People like that are absolute SCUM for taking advantage of someone who needs experience/work/whatever. I feel embarrassed and ashamed for being treated like this, I really hope those ppl get what they deserve.

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