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Is it legal for hiring companies to use your sample work even when they don't hire you? Lawyers weigh in

By John Patrick Magno Ranara Published Jul 18, 2023 3:27 pm Updated Jul 18, 2023 4:41 pm

When a social media strategist failed to get the marketing lead role at a local food company, he didn't let the rejection affect him. But things turned problematic when he discovered that the sample campaign he created as an application requirement was used to launch the same product they specified on the test.

In a July 15 Facebook post detailing the incident, Nel Joseph Mozol shared that he applied for a job that required him to come up with an ad for a product that wasn't initially part of the company's portfolio, leading him to believe that "everything was in good faith."

"I spent a good amount of time in creating the sample campaign. Two weeks in, I was told I didn’t get the role. I was like, it's fine. I understand. No problem at all," Mozol wrote. 

He continued, "Then today.. something funny happened when I woke up. They used my sample campaign, word by word, including the photo, to launch the same product they specified on the test."

Mozol asserted that the company's shady tactic is exploitative towards creatives to get them to do free work, and is a main factor that can kill marketing jobs.

While he shared in a follow-up post that he has settled the issue with the company and that he has been compensated for his work, the question remains on what one can do when faced with the same situation in the future.

What the law says

Speaking with PhilSTAR L!fe, Atty. Erika Mari Lectura, an intellectual property lawyer for Alburo Alburo & Associates Law Offices, said that the company possibly violated the law on ownership of copyright by committing an infringement of an original work.

This stems from Republic Act No. 8293 or the Intellectual Property Code of the Philippines, which states that "pictorial illustrations and advertisements are considered as literary and artistic works, thus, intellectual creations protected from the moment of their creation."

"Here, the applicant is not yet considered an employee of the company, so even if the task of creating an advertisement sample is part of the would-be employee’s regular duties, the fact remains that there was no agreement regarding the use of the sample advertisement by the company," Lectura said.

Atty. Tristan Felipe told L!fe that there should have been an agreement between the two parties that allows the company to make use of the material regardless if they hired Mozol or not.

"With the law recognizing [Mozol] as the 'author' or owner by the sole fact of creating the sample marketing campaign, the poster has certain moral rights over the work such as the right to require the company to attribute the creation of the work to him. In other words, the company should credit the poster for the work," Felipe explained.

"These rights may be waived by the poster if, for example, he signed an agreement allowing the company to use the sample in any way that the company wants. So the poster should review whatever document or agreement he entered with the company at the time he was applying for a position," he added.

What can you do if the same thing happens to you?

Lectura highlighted that, first and foremost, you need to familiarize yourself with the Intellectual Property Code, especially now that we're in an age where information is at one’s fingertips.

"It is important to know your rights as the owner of an intellectual creation in order to prevent others from using or copying your work without your consent. Under the law, copyright shall consist of the exclusive right to carry out, authorize, or prevent the reproduction of the intellectual creation," she said.

For Felipe, you can choose to settle the matter with the company, but if no settlement is reached, you can file a civil case in court for damages or a criminal case for copyright infringement.

He also echoed the same sentiments as Lectura's in knowing your rights as much as possible when it comes to your work, especially if there's a contract involved.

"Always remember that contracts are basically the 'law' between the people who sign them, so if you don’t exercise vigilance when you enter an arrangement with someone, no matter how temporary the arrangement is, you may find yourself in difficult situations," he said.

"To prevent scenarios like this from happening, it’s always good to cover all bases and make sure that you don’t leave room for people to take advantage of you or your work," he added. (with reports from Brooke Villanueva)