Work published in an online portfolio

'Is it legal', 'can I do this' type questions and discussions.
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cmtbaldwin
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Work published in an online portfolio

Post by cmtbaldwin » Fri Sep 16, 2016 2:28 pm

Hi There

I work as a creative director and have an online portfolio of the work I have completed on behalf of companies so to demonstrate my skill set and abilities. The large majority of potential employers would request a portfolio to gauge your work and area of expertise.

I have received a phone call from a previous employer asking me to take down work I had published to my portfolio. They informed me that it was their IP and I should not have included it in my portfolio.

The work I published is in the public domain, is not used for commercial usage and is only in my portfolio to illustrate my skill set and abilities/experience.

Does my including the work in my portfolio come under fair usage? I don't want to take it down as it is key to finding a new role.

Anyone have any advice?

Chris
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AndyJ
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Post by AndyJ » Fri Sep 16, 2016 6:34 pm

Hi Chris,

This is one of those cases where the law says one thing and common sense / practicality says another.

Your ex-employer is right to say that they are the first owners of any copyright work which you made in the course of your employment, and unfortunately unless there was something in your contract of employment which allowed you to use examples of your work for your own portfolio - as you say, a very common thing to do amongst creatives - actually doing so is entirely at their discretion.

It is conceivable that the new exception for the purposes of quoting might just be stretched to meet these circumstances. I think it would certainly meet the definition of fair dealing, but as there have been no cases so far involving the quotation exception we have no way of knowing how the courts will interpret the law. None of the other fair dealing exceptions are of much use in the circumstances.

You mention that the items of your work that you wish to use are 'in the public domain' - by which I take it to mean that they are readily available on someone's website and not behind a paywall or login. If so, can you not just include links from your online portfolio to the actual site which hosts the work? I appreciate that these links won't always be available but it at least provides a way of demonstrating your work. A couple of recent cases before the Court of Justice of the European Union (Bestwater and GS Media) have held that linking in this way is perfectly legal; indeed it is arguable from the Bestwater case, framing was also acceptable, making it appear that the images etc were actually part of your own site.

As an aside, if you are a freelance, make sure you always retain the right to exhibit examples of your work even though a commission may stipulate that copyright passes to the commissioner, and if you are employed on a full-time basis, try and get a clause to this effect inserted into your contract - most creative industry employers will be sympathetic to this request.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

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