From Dear Rich: Nolo’s Intellectual Property Blog.

Dear Rich:

1) I am an independent contractor and web/graphic designer, and my client thinks that I have inappropriately shared proprietary information. Do electronic newsletters constitute proprietary information?

2) I forwarded several emails newsletters at the request of a former employee and friend with whom I had collaborated on the newsletter design. Did I unlawfully share a proprietary work?

3) Does my client own full copyright to the electronic newsletter which I designed?

4) Does usage of the newsletter in a portfolio violate any copyright laws?

We think the answers are yes, yes, yes and yes. Newsletters whether in print or electronic are protected under copyright law.

If you copied a copyrighted work without authorization, you’re infringing. Whether that’s unlawful depends on whether you can mount a successful defense. One possible defense is that you are a co-owner because you designed the template used in the newsletter. Proving that will be an uphill battle because common elements of web designs are not protected by copyright—font choices, look and feel—and because many of the design choices are limited by practical realities and should be free for everyone.

If you can overcome these presumptions (and there are no written work-made-for-hire agreements or assignments), you might be able to claim co-ownership. You might also be able to claim fair use considering that your use was for portfolio purposes and did not cause the owner a loss in revenue. Because co-ownership and fair use are expensive to prove (only a judge or arbitrator can decide), many graphic and web designers deal with these issues in their contracts by including a “portfolio provision” or by retaining non-exclusive rights for certain design elements.

Dear Rich:

I want to create greeting, note cards and other stationery products using designs I create that are of iron work in Charleston, S.C. These are iron gates, window grills, stairs rails that are attached to a house or business. Much of the iron work dates to pre-American Revolutionary war period. Some of the iron work that dates to the 20th century, the blacksmith is known, specifically Charles Simmons. He is no longer living. In other cases the blacksmith is not known.

Are these architectural features in the public domain? Can their likeness be reproduced in print products and not violate copyright law? It is my intent to produce these items with a letterpress.

We don’t imagine you’ll get hassled over your stationery products either because most iron work is not protectable (explained below) or because the copyright owner will probably not know or care about your use. If you’re risk-averse, consider that figurative and highly ornamental iron work (like this) is more likely to be protected than a minimalist creation (like this). If you’re highly risk-averse, stay away from reproductions of decorative post-1922 iron work (and post-1922 iron work photos, for example from this book).

Copyright and iron works. Although blacksmiths may possess skill and craftsmanship, designs included within functional objects (such as iron work) will be protected “only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” (Here’s an explanation of the rules and this case illustrates how the standard is applied to belt buckles.)

Iron work is also difficult to protect because it often lacks sufficient originality—that is, it’s comprised of generic shapes of twisted iron. The issue can get more confusing when the iron work is incorporated within the architecture of a post-1990 building (or when the blacksmith claims copyright of his creations). Of course, iron work created prior to 1923 is probably in the public domain.

PS Dept. You mentioned the iron work of Charles Simmons but we wonder if you mean Phillip Simmons (unless you’re referring to Phillip’s nephew, Carlton).

Photo by Alan Levine.