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Summary:

One of our readers writes: I’m wondering what my rights are in terms of reproducing my own work on a portfolio-style Web site. I’m a designer, developer and writer/editor, and have been developing a site to showcase my work. Trouble is, much of it (perhaps even […]

One of our readers writes:

I’m wondering what my rights are in terms of reproducing my own work on a portfolio-style Web site. I’m a designer, developer and writer/editor, and have been developing a site to showcase my work. Trouble is, much of it (perhaps even all of it) is now owned by other firms and individuals.

Given that, am I allowed to reproduce the work on my own Website for informational purposes? I wouldn’t be profiting directly from having the work present there (i.e. I wouldn’t re-sell my work to another client), but I could see how a case could be made that I’m profiting from it in the sense that I’m using it as part of my marketing materials.

Obligatory disclaimer: I am not a lawyer. But I’ve been working with copyrights for decades now, so I’ve certainly got some thoughts on this.

It sounds like you’re worried mainly about copyrights, and wondering if you can raise a “fair use” defense. First, let’s clear up a common misunderstanding: fair use of copyrighted materials has nothing to do with whether you make a profit off of the use. If you print copies of someone else’s book, and give them away, you’re engaged in copyright violation even though you made no money at all.

The applicable law (section 107 of Title 17 of the US Code) sets out a list of purposes that may fall under fair use:

purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research

This isn’t an exhaustive list, though, so portfolio presentation might still be fair use. You need to turn to the list of factors that the law specifies in judging whether a particular use falls under fair use:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Naturally, the courts have gotten involved in interpreting what this means. The closest case that I know of to your question is Kelly v Arriba Soft Corporation, in which a publisher sued a search engine over displaying thumbnails of images, and inline frames containing the publisher’s images. The thumbnails were found to be fair use. What weighed in this decision? That the purpose of the thumbnails was different from that of the original site, that they weren’t using the entire original work, and that they did not have a negative effect on the market for the originals.

So – if you want to make a fair use claim for screenshots of sites you’ve worked on as part of a portfolio, you’re probably in good shape if you ever have to defend a copyright suit. It seems to me that your use is clearly different from that of the original; presumably you won’t reproduce the entire sites; and you won’t affect the market for those other sites.

That said, the copyright question is not the end of the story here. Even if you win a lawsuit, you still lose in lost time and legal expenses. The best bet is to make sure you don’t get sued in the first place. I would strongly urge you to simply ask your clients whether they mind you featuring their sites as screenshots – perhaps even with links back to the full sites – on your portfolio site. In the future, a best practice is to spell out any reuse you might make of work done in any contract you sign. For example, my own software consulting contracts generally reserve to me the right to use segments of code as examples when I am developing books or articles. Settling these questions up front is vastly preferable to litigating them later.

  1. Photographers use images that they have taken in their portfolio all the time. My wife is a wedding photographer, and in the contract of every client it is clearly written that we can use the photos for her own promotion. She usually gets a few comments, but she has only once or twice in the past 5 years has someone say they want it removed from the contract. We put it in, so there would be no surprises, and to reduce the risk of a lawsuit.

    I also do it for my web development business, and I’ve never had someone complain about being shown in a portfolio and given a link.

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  2. If you’re worried about it, just ask your client. I always make it a point to ask my clients if they would mind me using a screenshot and link in my portfolio. I’ve only had a couple of instances where the client didn’t want me using their work, and I respect that…after all, they paid for it, so it’s theirs.

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  3. This is something you might want to include in your TOS that you attach to your invoice or contract to the client.

    Personally all the work I do for a clients, or even full-time work I show in my portfolio, but I state the company that the work was for and/or the company I was employed at while working on that project. As long as you don’t show it off as your own work or ownership to yourself you should be alright. In most cases to do with an online portfolio site, if they do have an issue and contact you with a cease and desist, the worst thing is you might have to remove the content from your site entirely.

    Just be careful how you present it, giving credit to those who deserve or own the material.

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  4. Copyright/fair use aren’t the only risks that should be considered in regards to reproductions in portfolios. Be careful with work that may involve client trade secrets and other internal matters.

    For example, work that is used for internal systems, such as intranets, will often identify products, services and processes that your client would never want to see posted in anyone’s portfolio. This seems to be stating the obvious, but there have been instances of developers inadvertently posting such material. It can be difficult to remember the terms of a past project months later when updating a portfolio.

    Many clients will require a developer to execute a non-disclosure agreement (NDA) beforehand. Before you begin a business relationship, be certain that your contact’s portfolio provisions don’t conflict with the client’s NDA provisions. Look over both sides’ contracts carefully before you sign on. Your client will do the same. You don’t want to be in a “conflicting contracts” situation.

    Cheers.

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  5. Just want to make a correction. The statement:

    First, let’s clear up a common misunderstanding: fair use of copyrighted materials has nothing to do with whether you make a profit off of the use.

    Is incorrect. As a matter of fact, the author later points out explicitly that the commercial or non-commercial nature of reproduction is significant:

    (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

    …snip…

    (4) the effect of the use upon the potential market for or value of the copyrighted work.

    Number (1) is so self explanitory that it shouldn’t need any elaboration.

    Number (4) is slightly less obvious, but as an example consider copying a stock photo and then re-selling that photo for half the price that the photographer charges; Not only is your usage commercial (the photographer has lost your business) but his ability to sell his work to other individuals is also hurt (because you are offering the same product at half the price).

    I just wanted to clear that up. Commercial usage is not in and of itself against fair use rights, but it is perhaps the number one consideration a judge would look at in such a case.

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  6. Mark – thanks for the correction. What I meant to say (but clearly didn’t) is that non-commercial use is not a blanket defense against copyright infringement.

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