Technical writers maintain samples of documents that they once created and add those sample documents to their professional portfolios. Even though I do not (repeat: not) have a portfolio for the sole purpose of employment, writing samples can be useful when seeking a new technical writing position.

Showing samples to prospective employers was always a grey area ethically. What we think of as samples are single copies of work to which we do not own the copyright. But allowing a prospective employer to examine these samples as part of an interview process is not worth anyone “lawyering up” over, especially since we as writers used to control access to the samples and since the duration of that access of yesteryear was enough for a quick perusal but not for any activity that would damage the copyright owner.

It’s much more of a grey area now that most prospective employers require of technical writers that one cannot submit an application for employment without providing an attached sample or a link to an archive of samples. Which companies could (but almost certainly do not) could download and archive in perpetuity.

However, leaving aside the ethics for a moment, there are immediate practical issues for the technical writer. Prospective employers will exclude you if do not provide writing samples. Where are those samples supposed to come from, exactly? Employers want samples, but also want us not to use the work we create for them as samples in the future.

Every employer I’ve ever had has begun by taking an aggressive stance on intellectual property. “What we pay you to write is ours” is not even remotely aggressive; it’s a fairly basic consequence of the whole concept of American copyright law about works made for hire in 17 USC § 101. But “what you write while you are employed by us is ours” is certainly aggressive; I have pointed out to employers that they are asking for copyright of everything I write, including copyright of letters I wrote to my parents on my own time in my own home with my own materials. And copyright of everything I write is not a reasonable thing to ask for.

To quote Canadian Copyright Law, 2nd ed., by Lesley Ellen Harris (1995):

An example where copyright belongs to an employer is the case where a math teacher writes examination papers to be used with his students. On the other hand, if this same teacher writes a work of fiction during the weekends, he would own copyright in that fiction work.

Every employer for whom I have worked has (so far) been reasonable and amended the language of the employment contract to make it clear that they are not making a claim to work that I write in my own time. Although some employers continue to be reluctant to admit that “my own time” exists legally for the purposes of the employment contract, in practice it has never been an issue.

My writing portfolio consists principally of samples for products (and even corporations) that no longer exist. I have deliberately excluded from my collection of writing samples anything that could be said to give an advantage to a competing company. The knowledge is not mine to share, so naturally any writing I have done based on that knowledge is not mine to share, either.

Which does nothing to address the contradiction of prospective employers saying “Gimme!” and then, upon transitioning from prospective to actual employer, presenting the technical writer with an employment contract that says “Don’t you dare! Mine!”

I look forward to the day when an employment contract that has been crafted especially for technical writers (and not all “creatives,” which in high-tech firms invariably includes developers) specifically grants to the writer limited rights to retain and distribute sample work in the pursuance of their professional writing career.

Shoot for the stars, my friends.