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Ethics: Appropriate Use of Work Samples From a Previous Employer

This article does not represent a determination by the Ethics Committee of an actual case. One of the responsibilities of the Ethics Committee is to enhance member awareness about the Code of Professional Ethics and Code of Environmental Ethics, which contain important principles relating to members’ duties to clients and to other members. While there may be additional licensing, legal, or legally actionable factors in these hypotheticals, the Ethics Committee’s comments address only the implications with regard to the ASLA ethical codes; the discussions of these hypotheticals by the Ethics Committee do not constitute legal advice.

After working at ABC Landscape Architects for several years, Adam was ready for a change. One day while pondering his future, Adam was approached by XYZ Architects who asked if Adam was interested in starting a landscape architecture studio in their architecture firm. Adam was honored and excited about the opportunity and accepted the offer. Prior to leaving ABC, Adam asked ABC's owners if he could have work samples from his projects for use in his portfolio. ABC agreed and provided Adam with the requested work samples.

Once Adam reported to work, XYZ promptly updated their website announcing landscape architecture as a new service they provided. Adam supplied XYZ with the ABC work samples, which XYZ displayed on their website. Adam, intending to follow the proper protocol, made sure XYZ added a small note on the webpage stating that the projects were done while Adam worked for a previous employer. Adam did not specify what contributions he made to the projects and did not specifically name ABC as the firm responsible for the work.

ABC was shocked to see their projects displayed on their new competitor's website. ABC did not intend to give Adam permission to use the work samples to market the new studio and felt that Adam did not adequately explain that his role in the featured projects was in support of the landscape architect of record. Did Adam and XYZ act appropriately in their use of ABC's work samples? Unfortunately, Adam and XYZ violated a number of ethical codes. Additionally, ABC did not take the proper precautions in releasing samples of their work to Adam. Here are the relevant sections to the ASLA's Code of Professional Ethics:
  • R1.105 Members shall recognize the contributions of others engaged in the planning, design, and construction of the physical environment and shall give them appropriate recognition and due credit for professional work and shall not maliciously injure or attempt to injure the reputation, prospects, practice, or employment position of those persons so engaged. Credit shall be given to the design firm of record for the use of all project documents, plans, photographs, sketches, reports, or other work products developed while under the management of the design firm of record. Use of others’ work for any purpose shall accurately specify the role of the individual in the execution of the design firm of record’s work. Employers should give departing employees access to work that they performed, reproduced at cost, and a description of the employee’s involvement in the work should be noted on each product and acknowledged by the employer. ABC acted appropriately in releasing the work samples to Adam; however, ABC and Adam should have discussed, agreed upon, and documented an accurate description of his contributions to the projects. Adam should not have used the work samples without appropriately crediting ABC.
  • R1.108 Members shall not misrepresent or knowingly permit the misrepresentation of their professional qualifications, capabilities, and experience to clients, employers, or the public or be a party to any exaggerated, misleading, deceptive, or false statements or claims by the firms, agencies, or organizations that employ them. Members shall not take credit for work performed under the direction of a former employer beyond the limits of their personal involvement and shall give credit to the performing firm. On the website Adam (and XYZ) should have prominently stated that the projects were completed while Adam was working for another firm and explicitly named ABC as the design firm of record. Adam should have stated what duties he performed for each of the projects based on the agreement with ABC.
  • R1.110 Members shall not copy or reproduce the copyrighted works of others without prior written approval by the author of the copyrighted work. The work samples in question are the copyrighted works of ABC. Adam should have been clearer about the way he intended to use the work samples. The use of the term "portfolio" may have different meanings to different people and to some it may not include digital use, or use in marketing efforts. ABC should have refrained from releasing work samples without clear limits and expectations for their use stated in writing, in this case limiting the use to a personal portfolio used to gain employment.
ABC contacted XYZ and notified them that they did not have permission to use the work samples on their website and were misrepresenting Adam's role in the featured projects. ABC asked for the work samples to be removed from XYZ's website and that Adam return all copies of the work samples to ABC. XYZ and Adam complied with this request and apologized for their unintended ethics violations. This situation could have been avoided if Adam understood the appropriate use of his previous employer's copyrighted materials and if both Adam and ABC were clearer about their intent and expectations for the use of the work samples.

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