Does every engineer have a right to a portfolio?

Some of you may be quite proud to display your engineering portfolio right here on GrabCAD. Portfolios serve as a valuable asset to your engineering career, increasing the reach of your design work, making you stand apart from peers in job interviews, and even helping land new clients. Given the obvious benefit, you would think that every engineer should have the right to do the same with their cumulative design work. While the natural reaction is to shout "Hell, yes!" It's not quite so simple depending on where and for whom you work for; the question reveals some subtle complexities.

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Art vs engineering

The concept of a portfolio originates with the arts, as a sampling of creative work indicative of both the style and skill of the artist. Art, as a subjective medium that intertwines technical competence with creativity, cannot be quantified in a strictly objective manner. Consequently, a history of past work is the simplest way to evaluate an artist's suitability for a future commission.

Engineering, however, can be evaluated in an objective manner. Does it work? How much does it cost? Is it efficient? Does that mean there isn't a creative element to engineering? Absolutely not! That's precisely why an engineering portfolio has value, by demonstrating not only technical competency, but also creative capacity.

So we can just say an engineering portfolio is like an art portfolio, right? But here's where things come off the rails a bit, engineering legally is not treated the same as art - and for good reason.

Copyright vs patent vs trade secret

Art is protected via copyright. Engineering is protected by patents or, alternatively, as a trade secret. The distinction is relevant to how portfolios can or can't work within those legal mechanisms. Note: nothing in this article constitutes legal advice. I am not a lawyer nor did I happen to stay at a Holiday Inn express last night. Your mileage may vary outside the US.

Copyright

Copyright is natural and automatic, whether the work is published or not. Copyright lasts a very long, long time (arguably too long). Copyright protects the original work and also protects against derivative works, while allowing unrestricted use under special conditions, otherwise known as fair use.

Most legal experts agree that a creator's portfolio of copyrighted work falls under fair use, provided it's not public or interferes with the original use of the material. This holds true even in the case of work made for hire, where copyright may have been assigned to the client through a contract, although securing permission is still highly recommended.

Patent

In contrast, patent protection is a choice and must first be applied for by disclosing the invention to the government. Provided of course the invention is non-obvious and no one has beaten you to the punch.

Patents are incentivized agreements with the government. By disclosing the invention publicly you're entitled to exclusivity for a set period of time (nominally 20 years), after which the invention is turned over to the public domain. Patents offer no protection against derivative works provided they are non-infringing.

But patents are absolute during their period of enforcement – there's no such thing as fair use. You always need permission to use a patented thing even if your use is not public. And here's the real kicker, if you recreate something substantially similar from scratch, it could still be infringing. That's not so friendly for maintaining portfolios.

  • Trade secrets are the alternative option for engineering IP. Not everything is patentable (formulas and algorithms, for example). Sometimes the cost of disclosing through the patent system outweighs its advantages. So companies opt to keep it secret, keep it safe. That's why contracts get coupled with non-disclosure agreements (NDAs) (which generally isn't portfolio friendly either).

Think of it this way: art is naturally protected with minor exception, while engineering is naturally unprotected. That means engineering exposure, even with something as innocuous as a portfolio, is much more difficult to manage.

Additional industry challenges

We've talked about how to mitigate portfolio challenges before, but sometimes those options simply aren't possible. While securing permission to maintain some data in a portfolio can be cooked into an NDA or employment agreement if you're forward thinking enough, sometimes that isn't practical. And since there's no fair use for engineering, everything must be permission based.

While many employers will indeed be nice to you, they certainly are within their legal rights not to lift a finger. It can get worse, especially in government and defense where data may be further secured by export controls such as ITAR and/or access clearances.

Engineers transitioning from a career in these fields won't have a portfolio at all, and trying to recreate such data would be a fantastic way to end up with a permanently orange wardrobe. So do engineers without the means of building a portfolio just throw up their hands in frustration?

Show me you know Kung fu

There's another alternative. Rather than simply demanding a portfolio of what you've done, it's just as valuable to find out what you can do. Suggest a problem to solve, or a challenge to tackle. Any employer would jump at the chance to see demonstrated knowledge over even the shiniest portfolio. Just volunteering for such a demonstration will speak volumes about your confidence to get the job done. Ultimately, being hired on current merit and not past claims is a win-win for both sides. Now go draw me a square.