Copyright in Teacher-Created Materials

by | December 29, 2009 | Law

Back in November, the New York Times ran an article about the growing number of teachers who sell their lesson plans and other curriculum materials through online portals like Teachers Pay Teachers (Winnie Hu, Selling Lesson Plans Online, Teachers Raise Cash and Questions, Nov. 15, 2009). The article quoted Robert N. Lowry, deputy director of the New York State Council of School Superintendents, who suggested that if school district resources were used in the creation of materials that are subsequently sold for profit, the district should get a share of the proceeds.

The article piqued my copyright-lawyer curiosity about the ownership status of teacher-created curriculum materials. My gut reaction was that Mr. Lowry was overreaching, but like most legal questions, it required a little more research to get a more solid answer.

I performed a very cursory review of about a dozen major school districts’ teacher employment agreements (the ones negotiated with the large teachers’ unions) that I found online, and found none that contained anything about copyright ownership. Absent a written agreement to the contrary, it seems as though the “default rules” of copyright would apply.

On its face, the copyright law as it relates to employees and employers seems pretty straightforward: if the work in question was created within the scope of employment, the employer is deemed the author for copyright purposes, and thus, the copyright owner.

In Community for Creative Non Violence v. Reid, 490 U.S. 730 (1989), the Supreme Court instructed that to determine whether the creation of a certain copyrighted work falls within the scope of employment, we must look to widely-recognized common law agency principles. The court explained:

In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party’s right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party. No one of these factors is determinative.

490 U.S. at 752-53 (citations and footnotes omitted).

So, determining whether certain teacher-created materials are copyrighted by the school district requires an analysis of the circumstances around which they were created.

At first blush, it seems as if the copyright is clearly owned by the district. Teachers are generally not in business for themselves, but rather, are employees of the district in which they teach and for which they created the curriculum materials. To my mind, where the analysis becomes a bit murky is in considering factors like the “source of the instrumentalities and tools,” “the location of the work,” and “the hiring party’s right to control the manner and means by which the product is accomplished.” While some curriculum materials are probably created at school, using school resources, it is widely known that teachers do a substantial amount of work outside of regular working hours, often using their own resources, and spending their own money. To the extent a teacher creates materials outside of regular school hours, without using any district resources – e.g., on their own computer at home – the balance tends to tip in favor of the teacher owning the copyright.

Moreover, it’s unclear to what extent developing curriculum materials is actually part of a teacher’s job requirements. That may sound a little odd, since it would seem that developing teaching materials is a prerequisite to actually teaching, but I’d imagine that most teachers could by, if they were so inclined, by using standardized, district-provided materials, or materials created by third parties.

I concede that I have no significant teaching experience myself, but I was a student for a long time, and had my share of teachers that I’d bet hadn’t created an original lesson plan since they were required to as part of their education courses in college. Nobody has fired them yet, which suggests to me that just showing up and teaching the same old stuff year after year is sufficient to meet the basal requirements of being a teacher.

So, what does this all mean for copyright ownership of teacher-created curriculum materials?

Like most things in law, the answer is: it depends. Absent a specific agreement dealing with copyright ownership issues, the answer depends on the facts and circumstances surrounding the creation of particular curriculum resources on a case-by-case basis.

A more interesting question for me is, as a policy matter, how should school districts treat the copyright interest in teacher-created curriculum materials? As the New York Times article notes, “[t]he marketplace for education tips and tricks is too new to have generated policies or guidelines in most places.” So, I offer a few thoughts that I hope school districts will keep in mind as they set out, as many will do in the future, to create such policies.

Most respected institutions of higher learning – both public and private – have explicit intellectual property policies that govern the ownership of intellectual assets created in the course of a professor’s employment. Typically, although not uniformly, most such policies allow professors to retain the copyright to teaching and curriculum materials as well as other scholarly pursuits, such as books, articles, and the like.

Here’s the relevant portion of the policy from my alma mater, Lehigh University (available in full, here):

Traditional Academic Rights: In keeping with academic traditions at the University, the creator shall retain ownership to the following types of Intellectual Property, without limitation unless part of an agreement under the above principles of ownership: books (fiction, nonfiction, poetry, textbooks etc.), articles, poems, published standardized tests, student papers (themes, term papers, reports, exams, etc.) musical works, dramatic works including any accompanying music, pantomimes and choreographic works, pictorial, graphic and sculptural works, motion pictures, video recordings, and sound recordings. This provision does not automatically include computer software, databases, and other electronic media because no academic tradition exists for them. Until standard practices emerge creators of any innovative Intellectual Property are encouraged to pursue Individual Project Agreements with the University.

Teaching Materials: Creators of reusable teaching and classroom materials for Lehigh courses, such as curriculum guides, problem sets, exercise solutions, laboratory manuals etc., shall own these materials unless they are subject to a prior agreement governing their ownership. In all cases the University shall have a non-exclusive, royalty-free, perpetual license to use, display, copy, distribute, and prepare derivative works of such materials for internal University use.

Put simply, in most cases, Lehigh professors get to keep the copyright to their own work, but the university gets to use it as much as they want, for as long as they want, without having to pay more for it. That seems like a reasonable quid pro quo.

School districts should adopt similar policies.

There is no reason for school districts to take copyright ownership in teachers’ own curriculum materials to fulfill their educational mission. Public schools are in the business of educating students, not selling curriculum materials, and most school districts with which I’m familiar would probably do a pretty poor job of making the leap into academic publishing. Under a liberal licensing arrangement, such as the one found in Lehigh’s intellectual property policy, a district could enjoy unfettered access to its own teachers’ materials, thereby ensuring that students would benefit from the fruits of teachers’ labors well into the future, while still preserving the teachers’ exclusive right under copyright law to commercialize his or her work. A win-win.

Allowing teachers to retain their copyrights might also serve as an added incentive to create new material, which is, after all, the central purpose of copyright law.

Those teachers who are already motivated to develop innovative new materials will, undoubtedly, continue to do so; allowing them to subsequently sell their wares can only further encourage them to continue creating high-quality, academically-sound curriculum materials.

Those who can’t currently be bothered to write their own materials may see new value in doing so if they have the opportunity to make some extra cash off of their work down the road.

It’s a pretty sad state of affairs in education if the promise of generating a few bucks off of some lesson plans is the motivator for bad teachers to become better ones, but if it lifts just one teacher up, it’s hard to see a downside.

“Party” Goes On; Cover Charge for Clear Channel

by | August 7, 2009 | Media & Entertainment

I’m usually on top of trademark issues in the radio industry, so I’m a little embarrassed to admit that I missed this one, particularly because it’s apparently been going on since 2006.

Tradepub All Access announced that Clear Channel has settled claims brought by The Cromwell Group, Inc., a small radio outfit that, according to its web site, owns stations in Tennessee, Illinois, Kentucky, and Indiana. Of the 22 stations Cromwell owns, three use the brand “The Party” to identify themselves; Cromwell sought and received a federal trademark registration for the mark “The Party.”

Clear Channel used the same brand on several of its properties, including stations in Atlanta, Las Vegas, and Denver. Through a series of letters, Cromwell asked Clear Channel to stop using “The Party” on its stations; Clear Channel shot back by accusing Cromwell of unlawfully using “The Fox,” which Clear Channel claims to own.

Cromwell brought suit on December 15, 2006, alleging trademark infringement, unfair competition and false designation, trademark dilution, and a state law contract claim in connection with a prior relationship between Cromwell and Clear Channel concerning The Bob & Tom Show.

[Side note: although the contract claim is tangentially related to a previous trademark scuffle between Clear Channel and Cromwell, it has nothing to do with the “The Party” trademark. One wonders if perhaps Cromwell threw in the contract claim alongside the federal trademark questions in an attempt to have the state claim heard by a federal judge by way of supplemental jurisdiction; because the contract claim doesn’t appear to be substantially related to the trademark claims, though, my money’s on the judge declining to hear the state claim. Since the case was resolved by settlement, though, the issue is moot.]

Although the terms of the settlement have not been disclosed, All Access reports that Clear Channel has agreed to license “The Party” from Cromwell, and that Cromwell “encourages any stations that currently may be utilizing THE PARTY without a license to be proactive in contacting the company.”

The case was brought in the Middle District of Tennessee at Nashville; the case number is 06-cv-01196.

D.C. Gets a “Fresh” But What’s a “Fresh?”

by | April 27, 2009 | Media & Entertainment

A few weeks ago (Mon 4/6) Washington, D.C. radio listeners woke up to a new radio station, as CBS Radio flipped it’s classic rock station WTGB to become 94.7 Fresh FM. “Fresh” is a relatively new format launched a year or so ago by veteran adult contemporary programmer Greg Dunkin. According to Vallie-Richards-Donovan, a radio consultancy that briefly handled licensing of the brand, Fresh is targeted at “[t]he much sought after 25-49 audience” by being “contemporary without being too loud or repetitious.”

Fresh is just one of several radio concepts that has launched in recent years that bills itself as more than just a format, but a complete broadcast brand identity comprised of proprietary programming strategies along with a logo and related trade dress, on-air imaging, brand-specific consulting services, music scheduling, and ongoing promotions and marketing support. I’ve come to call these complete format brand concepts as “branded formats” to distinguish them from traditional satellite-delivered “canned” syndicated formats in use by many small market stations.

Branded formats operate in much the same way a franchise system operates. In a conventional franchise model, the franchisor develops a method of doing business, typically associated with a trademark, and then grants licenses — franchises — to independent business owners — franchisees — to use the methods and the brand in their own communities. The essence of franchising is consistency: to ensure that the franchisor’s trademarks remain strong, every franchisee is required to commit to follow the methods and standards set forth by the franchisor. The franchisor maintains the strength and integrity of its marks by ensuring that the customer experience is identical from location to location. After all, what would a McDonald’s be without the golden arches? What would you think of a Dunkin’ Donuts that didn’t serve coffee?

Although the branded format licensing framework is analogous to franchising, the two approaches differ when it comes to consistency. Unlike a franchise, the licensors of branded formats purport to offer a high degree of customization and local responsiveness. This focus on localism makes sense, given that radio stations are licensed to serve a particular community, and FCC licenses require that stations serve the “public interest, convenience, and necessity.” On a more practical level, different radio markets feature different demographic compositions and different competitive landscapes.

According to Vallie-Richards-Donovan’s web site (based on a printout I made on October 13, 2007; the page no longer exists on the company’s web site), Fresh is highly customizable:

Unlike many nationally distributed formats, the Fresh brand is completely tailored to each market. By customized, we mean that every station is specifically designed to accommodate and exploit the opportunities that exist in your specific market. This customization includes target demographics, music, production elements and marketing campaigns. This process can yield different results in each market. As implied, one fresh fm [sic] station can sound dramatically different from another. Just one way the fresh fm [sic] brand is different from other nationally distributed formats!

The customization of a nationally distributed — and nationally protected through U.S. trademark law — begs the question, “what’s a Fresh FM?”

In a traditional franchise, the franchisee buys into a recognized business model and brand identity instead of launching a business from scratch, thereby eliminating an element of risk — in essence, the franchisee is buying a repuation. In the context of branded formats, the reputational element is somewhat undermined by the fact that a station employing a branded format in one market may sound substantially different than a station in another market with the same format.

Put simply, Fresh in New York might sound significantly different than Fresh in Chicago, even though the two stations share similar, proprietary attributes. That fact begs the question, “what’s a Fresh?” Or more appropriately, what legal protections are (or should be) afforded a national brand identity that means different things in different places?

But like Fresh, MOViN seems to mean different things in different markets. In Los Angeles, the recently-defunct KMVN (MOViN 93.9) featured all “old school” rhythmic AC, that is, rhythmic music from the 70s and 80s; the station also used an imaging package that was distinct from the “standard” station imaging offered by the format’s creator.Another branded format offers a similar example of the apparent tension between broadcast localism and the trademark owner’s interest in maintaining national brand consistency. Created by consultant Alan Burns, the MOViN format targets “28-40 year old women who feel too old for hip-hop, but are bored with rock-based Hot AC and not ready for traditional AC.”

Meanwhile in Phoenix, KMVA (MOViN 97.5) touts itself as playing music from “today and back in the day,” and a few hours of listening confirms that the station is based largely on current music, unlike it’s Los Angeles counterpart.

Moreover, a blurb in Radio & Records recently noted that KYMV in Salt Lake City (MOViN 100.7) has been “directed . . . toward more of a CHR/top 40″ direction,” but that it will retain the MOViN identifier.

Three stations, three markets, three different experiences, but each using the same brand. In a typical franchise context, such differentiation would severely weaken the brand; are radio stations different because of their localism obligations?