Using client work in your portfolio, and the testimonials beside it

First, who owns the piece

IP Australia’s starting point, in one line: intellectual property a contractor creates belongs to the contractor unless the contract says otherwise, and employers own what their employees create in relation to the business. So for work made as a sole trader, the contract with the client is where the answer sits. Work made together can have more than one owner: IP Australia says that if two or more parties created it together, they are joint owners.

IP Australia lists what a written contract should clearly define. Three of the items on that list bear directly on a portfolio:

• “who owns the IP created by the employee/contractor
• who has the right to use the IP commercially
• confidentiality agreements”

IP Australia, Who owns intellectual property? (a selection from its list)

Confidentiality sits on the same list as ownership, and a portfolio touches both, so the two clauses are worth reading together.

If the client owns it

The Attorney-General’s Department puts the general rule plainly: copyright material can be used without infringing copyright with the owner’s permission, or where a use falls under one of the Copyright Act’s exceptions or statutory licences. For work the client owns, the portfolio question becomes a permission question.

• Look for permission already given. Owners often give general permission for some uses in their terms, so the department says it is “always worth checking” whether a use is already covered. For a portfolio, the contract’s own terms are the first place to look.
• Otherwise, ask. With no relevant licence, permission comes directly from the copyright owner.
• Get it in writing. “You should seek written permission to use copyright material wherever possible, to avoid relying on oral statements that may be difficult to prove or enforce.”

In IP Australia’s terms, permission to use something without owning it is a licence, and a non-exclusive licence lets more than one person use the material while the owner keeps commercialising it. A permission to show campaign work in a portfolio sits naturally in that shape: narrow, shared and written.

The testimonial beside the work

A client’s praise beside a case study is a testimonial, and the ACCC’s Advertising and selling guide (July 2021) holds every testimonial to one standard, wherever it appears: “any review or testimonial should reflect the genuine views and opinions of the person that is represented to have made it.” It defines a fake testimonial as “one which does not reflect the genuinely held opinion of the author,” and says using false or misleading ones risks contravening the Australian Consumer Law.

The ACCC’s page on reviews adds that a review can mislead if it is “edited or changed by someone else after being created”, which covers a familiar step: tidying a client’s words before they go on the page.

The guide also asks businesses to keep evidence: “Businesses should check reviews and testimonials carefully and implement good record keeping practices to ensure they are able to show that reviews and testimonials are honest and accurate.” Keeping the client’s original message, with its date, is one way to have that record.

The numbers in a case study

Results quoted in a portfolio are claims about your services. The ACCC says any such claim “must be accurate, truthful and based on reasonable grounds,” in any communication, testimonials, social media and websites included. It makes no difference whether a business intends to mislead or not.

Promises carry their own rule. A claim about future matters, including predictions or projections, needs reasonable grounds when it is made, and the business is responsible for showing it had them. The ACCC also asks businesses to address the range of uncertainties and variables in claims about the future. A growth figure from one client’s campaign, presented as what the next client can expect, would be that kind of claim.

Leaving things out can mislead as well. The ACCC says a failure to disclose information can be misleading, particularly when a business gives some information but omits details a consumer should know that bear on their decision. A result reported without what produced it is worth reading with that in mind.

Social media has no separate set of rules for this: the ACCC’s guide says the laws against false, misleading or deceptive claims apply there too. The name the portfolio trades under is in the business name guide, and the invoices behind each piece of work in the tax invoices guide.