Wednesday, November 09, 2005

Academics and Ownership of Copyright

What is the status of copyright ownership in works created by academics? Are they works for hire of the academic institution that employs them, or, are they owned by the academic who wrote them? At one level the answer is quite straightforward: the statutory rules on work for hire apply to academics as to all others. There is no special provision for academic works, notwithstanding Nimmer's view (at least at one time) that there is a "teacher exception." On November 3, 2005 SDNY Judge Denny Chin issued a opinion in Pavlica v. Behr that illustrates this.

In Pavlica, a high school science teacher created after hours, on his own initiative, a program on how to teach science students nationwide. His high school agreed he, not the school, owned the copyright. In attempting to disseminate the work, Pavlica got together with two other teachers to receive National Science Foundation grants. After the inevitable breaking up of that relationship and the other teachers' unauthorized continued use of Pavlica's material, suit was filed and a work for hire defense was asserted. Judge Chin denied defendants' motion for summary judgment and let the case go to a jury; from his opinion, it seems he was of the opinion there was no work for hire relationship, bolstered of course by the erstwhile employer's own denial of that relationship.

Other cases have gone the other way: in Vanderhurst v. Colorado Mountain College District, 16 F. Supp.2d 197, 1307 (D. Col. 1998), aff'd 208 F.3d 908 (10th Cir. 2000), amended 2000 U.S. App. LEXIS 6637 (10th Cir. April 11, 2000), a teacher's class outline was found to be within the scope of employment. Two 7th circuit opinions are also noteworthy, Hays v. Sony Corp., 847 F.2d 412 (1988) and Weinstein v. University of Illinois, 811 F.2d 1091 (1987), and more recently, the Second Circuit examined the issue in Shaul v. Cherry-Valley-Springfield Central School District, 363 F.3d 177 (2d Cir. 2004).

Collective bargaining agreements and unversity policies are also important sources of information. An excellent review of those policies along with cites to online versions at major universities may be found in Elizabeth Townsend, "Legal and Policy Responses to the Disappearing 'Teacher Exception,' or Copyright Ownership in the 21st Century," 4 Minn. Intell. Prop. Rev. 209 (2003).


Max Lybbert said...

Interesting question.

I could (likely) be wrong, but I understood work for hire exists is:

1. there's a contract saying so, OR
2. several factors weigh in the employer's favor, including the factor of whether the work was made as a part of the job.

In the case of a high school teacher, I just don't see that being the case.

On the other hand, in the case of a college professor, it seems (to me) to be a bit murkier. Even so, I'd expect the professor to hold on to copyright in more cases than not.

William Patry said...


These work for hire cases are on the first prong, the employer-employee prong, so you don't need a written contract, just the existence of the relationship. Of course, one may have a contract and that contract may spell out ownership issues, but in the employer-employee realm, while you can vary ownership of rights, you can't contractually agree someone who is an employee isn't.

Michael Eisenberg said...

Of further interest to this topic is UCLA's form that all research employees must sign found here.

The form requires the employee "to assign inventions and patents that I conceive or develop while employed by University..." But at the end of the form, there is a clause declares as against public policy any provision in the agreement that purports to require an employee to assign an invention otherwise excluded from being required to be assigned under the State's Labor Code section 2870.

William Patry said...


Thanks to the link. The article I referenced has links to Stanford University and others. The issue is, of course, quite contentious at the unviersity level, and it is interesting that for all of the effort educators paid during the more than a decade effort to get broad fair use rights in the 1976 Act, they spent no time in securing their own rights. This may have been attributable to a belief that there was a "teacher's exception," an idea pushed by Nimmer, and which argued teachers own copyright in everything they do. But whatever the validity of that idea under the 1909 Act, it is a clear loser under the 1976 Act; with the commercialization of universities, it shoudl not be surprising that IP rights are now becoming a flashpoint.

Anonymous said...

Here's a link to the University of Texas System (UT Austin, UT Arlington, ... (15 institutions)) IP policy. It has specific carve-outs for reasearchers, faculty, and other professionals who produce "scholarly works" during the course of their employment (like me).