Ask WWD: Portfolios and Fair Use

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.

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