3

I'm a new web design freelancer and don't really have a portfolio to show my potential clients, therefore I've been having a tough time in getting them to visualize what exactly it is that I'll be making for them. To solve this, I made a web page on my site's "Samples" page with a bunch of screenshots of other websites for my prospective clients to look at to help them get an idea of what kind of work I want to do for them. A lot of the screenshots are of home pages, I have cropped the images and scaled them down to smaller sizes. Does this sound like something that would be covered by the Fair Use law?

Update: I've deleted the link to my samples page which was here for two days and have decided to pull all the screenshots which were posted there and replace them with text links to the sites I was referencing.

  • 2
    Just to make sure, it sounds like the proposed samples are from sites that you didn't do the design work for. Is that accurate? – Chris Forrence Mar 26 '15 at 21:00
  • Yes, I did not do anything on those sites. – Gunn Mar 26 '15 at 21:41
5

TL;DR: I don't think that this would be OK. The best course of action would be to make your own designs (even if they're for example sites) and use those for your "samples". Your clients would get a great feel for how you design, which is what you want to showcase.


Let's examine what Fair Use entails:

Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

  • the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  • the nature of the copyrighted work;
  • the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.[5]

Below is how I'd analyze these in your case. A common contract clause states that the design copyright is held by the designer and that the design is perpetually licensed to the company for their use. If this is the case, the copyright holder of the design is not the company, but the designer.

  • Purpose and character of the use: Since you would be doing this to promote yourself, this would likely fall as "commercial nature" and fall against fair use.
  • Nature of copyrighted work: The original work is creative in nature (as opposed to factual). This doesn't favor a fair use argument.
  • Amount and substantiality of the portion used: Since you're only using a portion of one of the pages, this will probably weigh as fair use. However, I could see an argument that the design is the main selling point, and showing the design, even though it's only on one page, counts as replicating enough of the design.
  • The effect on the market or value: While it would increase the market, it wouldn't do so substantially. Furthermore, it wouldn't devalue the copyright holder's work. This is probably in favor of fair use.

Overall, I think your proposed use case would not fall under fair use. In addition, frankly, if I were to come across a website that claimed my design as their own, I would strongly consider legal action.

Honestly, the best thing to do would be to create your own designs and showcase those. It'll take longer, but it'll be more worth it in the end. Your clients would see your work, what you're capable of.

  • Thanks for the rundown Chris, I do plan on replacing this Samples page with original design very soon. The page is mainly for a few local business owners to casually browse so to help them understand what I can do for them. I also wanted to get some outside perspective from other freelancers on what their perception is on doing something like what I did. – Gunn Mar 27 '15 at 4:08
  • 2
    +1 absolutely agree. Even if it were legally okay (which I don't think it is), it's a bit unethical to display work which is not yours. It comes across as a sort of "bait and switch" tactic and borders on false claims. – Scott Mar 27 '15 at 8:47
  • @LightHouse - And that's a great idea; when you can say to a customer, "I've done these designs; this is why they're awesome. Your site can look as good as this!", you're doing well! – Chris Forrence Mar 28 '15 at 16:00
3

No it is not OK

If you need to show samples of things you can do, but have not yet procured any clients, you should design your own static wireframe mockups (or live sample sites) to show people what you can do.

Your clients will send you to other sites they like as part of the specification process, because you will ask them "what site designs on the internet do you like?"

What you are currently proposing is plagiarism.

  • After reading all the answers and comments, I'm now considering the idea of removing all the images and replacing them with text links. – Gunn Mar 27 '15 at 16:31
0

Disclaimer: I am not a lawyer and this probably isn't the best place to ask for legal advice.

As currently shown on your website, it is clear you are not claiming this work as your own, but only as examples of what can be done.

This seems perfectly reasonable to me and not that much different to showing screen captures in a template review article or similar.

As a courtesy, you could always ask permission from the site owners and/or find alternative examples if there are any objections.

I imagine that many site owners would be flattered and would appreciate the free advertising.

  • Thanks. You know I read somewhere that taking small screenshots of things you see on the internet and then re-posting them so you can talk about them is totally fine. Some of the copyright stories out there almost make it sound like we're all supposed to keep what we see on the internet a big secrete, or else X will happen. – Gunn Mar 27 '15 at 4:21

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.