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Authors at Work: The Origins of the Work-for-Hire Doctrine by Catherine L Fisk

15 Yale J.L. & Human. 1 (2003)

This article delves into the origins of the work for hire doctrine. In order to properly understand the Mauro v Allentown case it is important to understand the basis for the plaintiff's principle argument. The article does not specifically address the relation of the teacher exception to the general work for hire principle, however it does evaluate several aspects of the work for hire doctrine and how they apply to various media.

For the purposes of this project I focused mostly on the law authorship subsections. I did this because that section had the most relation to academic copyright. This section looks first at the case of Wheaton v Peters from 1834. The case affirms the ability of a reporter to hold a copyright on the proceedings and decision of a court case. This situation bears similarities to a professor copyrighting his lecture notes or similar works, which was later affirmed in Williams v Weisser (also tagged). The similarity exists because in each case the base of work is generally available; either as ideas and facts in the case of lecture notes or government documents in the case of court proceedings. What makes them copyrightable is the fact that they contain a ‘web of expression.’ Court reporters were not able to copyright the actual opinions of the judge but everything else they recorded could be, including the way they ordered the arguments. In the same way professors cannot copyright the individual facts used, but they can copyright the order and style used to present them.

This freedom began to change in the late 1800s. Up until this point it was generally understood that employees could hold their own copyrights and use them as they saw fit. Around this point though several cases were decided that began to erode that right. In each case there was little immediate harm done, since there were always mitigating circumstances which weakened the impact of awarding employers copyright instead of employees. After these clauses were inserted there was little use for them. The courts continued as they had been: awarding copyright to authors on other circumstances, but always including the clause stating that the employers could control the copyright. The change in philosphy came subtly when courts began to see the contract between employer and employee implicitly granting the copyright to the employer instead of vice-versa. This decision was based on previous court decisions that had never actually given the copyright to the employers, but instead always found a loophole to give the rights to the employee. Once the philosphical chage occured it became necessary for an employee to have a contract to keep their rights, instead of a contract to give the rights to the employer. This was enshrined into copyright law in the 1909 copyright act and further defined in the 1976 act.

Legal and Policy Responses to the Disappearing Teacher Exception, or Copyright Ownership in the 21st Century University by Elizabeth Townsend

4 Minn. Intell. Prop. Rev. [i] (2002-2003)

This article explores the future of the teacher exception. It notes that there is a lot of flux in the current academic situation with the advent of digital classrooms and the commercialization of many universities and schools. This article does a very good job exploring the history of the teacher exception and comparing it to the general work for hire doctrine. It discusses the various court cases that formed the basis of the work for hire clause and also the teacher exception. It also takes a look at the creation of the current 1976 Copyright Act that defined in very clear terms the work for hire clause and also according to some interpretations eliminated any form of the teacher exception. After evaluating most of these cases the author comes to the conclusion that the teacher exception is still alive, but only because of tradition. The two most recent cases, Hays v Sony and Weinstein v UIllinois have allowed the teacher exception to persist, but neither judge made any kind of definitive ruling on it. This means that the teacher exception could be eliminated very easily by a strict interpretation of the Copyright Act.

Given the precarious nature of the teacher exception the author sees it atrophying, particularly as more and more schools expand into the digital age and want to control how content is available to their students regardless of the intentions of the teacher. The author looks at another article (Who Owns Course Materials Prepared by a Teacher or Professor? The Application of Copyright Law to Teaching Materials in the Internet Age by Holmes and Levin) http://proxy.library.upenn.edu:8120/login.aspx?direct=true&db=keh&an=2919775 (also tagged) that argues for the teacher exception and evaluates their arguments. After finding several new arguments against their reasoning in light of recent developments the author comes to the conclusion that the teacher exception is in danger of being eliminated simply because in today’s society there has finally emerged a way for universities to profit from professor’s lecture notes, where twenty years ago there wasn’t.

This means that for Mauro v Allentown the case supporting Mauro’s statement that he owns the medley is weakening by the climate of the times, however there is nothing yet that has clearly removed the teacher exception as a valid argument. So for the time being pushing forward with the case could be justified, but the author of this article, at least, sees that window of opportunity rapidly closing.

Copyright and the Educational Process: The Right of Teacher Inception by Russ VerSteeg

75 Iowa L. Rev. 381 (1989-90)

In this article the author explores the issues of academic copyright and looks specifically at the rights of high school teachers. Specifically in section V the article outlines several recent cases and how they impact the idea of a ‘teacher exception’ and also goes into a good amount of detail about the reasoning behind the courts' decisions. The author also discuss a few solutions to this issue. Arguing that neither the school nor the teacher solely owning the copyright presents a great solution. If the school owns the copyright then they have removed a large incentive for teachers to produce, and if the teachers have sole possession of copyright they could severely limit the academic environment, if they decided to be very strict and not allow their works to be used and shared among their peers. The example given was a teacher develops an exam; if the exam is particularly well designed it is in the best interest of the students and the school to make this available to all the students in the district. If the teacher refuses to allow the distribution then they are impeding progress; the opposite of what copyright is intended for.

As a solution for this the article explores several routes, sharing copyright between the school and the teacher seems an obvious solution, but it begins to fail when one considers the relatively transient nature of teachers. While not as drastic as university professors, some high school teachers will be at several schools before they find one that suits them. If they are not allowed to use their own works once they transfer to a new school they will be in a difficult situation. An alternative is using the right of teacher inception, which would have to be contractually agreed on. This would allow the school the right to use a work created by the teacher for educational non-profit purposes, but the teacher would hold all other rights. Allowing them to profit from their creativity.

This seems like a good general solution. However, it likely cannot be applied to Mauro v Allentown. If there were no prior agreement to the right of teacher inception then it would not be valid. So while the right of teacher inception is a viable and mutually beneficial solution, this situation is most likely going to have to rely on precedent to be decided.

Who Owns Course Materials Prepared by a Teacher or Professor? The Application of Copyright Law to Teaching Materials in the Internet Age. by Levin and Holmes

Brigham Young University Education & Law Journal; 2000 Issue 1, p165, 25p

This document outlines many of the principle copyright cases that deal with the academic exception and explains how they relate to a professor’s rights to their own works. However I used it predominantly for it’s description of the case Sherrill v Grieves which I could not locate on its own.

The case, decided in 1929, is fairly simple. Sherrill was a teacher in the US Army. He created a course on military sketching and surveying. He could not find a textbook for this course so using his lecture notes he created a text for it. He allowed the military the rights to use a portion of the textbook in a pamphlet. Grieves wrote a book about military sketching. Sherrill accused him of copying his pamphlet and text. Grieves said that he did not and even if he did copy the pamphlet it was a government publication and therefore not subject to copyright. The courts eventually ruled in favor of Sherrill arguing that he was not obligated to publish his lecture notes, and that since it was not required for his job it would not fall under the equivalent of work for hire in the 1909 copyright act. Also since the work in the pamphlet was his original material and not required to be given to the government the pamphlet was not a public domain government document. Therefore Grieves was found guilty of copyright infringement.

The importance fo this case for us is that it established the academic exception for the first time. There are several mitigating factors however, in how this case could relate to Mauro v Allentown. First is the age of this case, the case was decided many years prior to the 1976 Copyright Act and so it is not exactly understood how, if at all, it could be interpreted under the new laws. Second is the fact that this deals with a military university and not a public high school, but it seems that most decisions about academic copyright happen at the university level. Finally is the fact that the case also dealt with the government document issue in addition to general academics. I’m not sure how this could impact the decision, but thought it should be mentioned.

Hays and Macdonald v Sony

Hays and Macdonald v Sony 847 F.2d 412; 1988 U.S. App.

This was one of the few cases I could find that specifically dealt with the academic exception at a high school level.

Hays and MacDonald were two high school business teachers who developed a handbook for a word processor that the high school owned. They distributed the handbook to the staff and students of the high school. When the high school purchased new word processors from Sony, the school gave the handbook to Sony asking them to adapt it for the new word processors. Sony did so by taking large parts of the document and copying it into the new handbook. Sony then gave it back to the school at no charge. When Hays and MacDonald found out about the new handbooks they sued Sony for copyright infringement arguing that they owned the rights to the handbook. The District Court found for Sony. Hays and MacDonald tried to appeal the decision but they filed their appeal to late. The Appeals Court thus denied their appeal and they lost their case. However in issuing the denial the Appeals Court discussed the case in more depth, exploring the issues as if the case had been heard. They argued that that since Sony didn’t make any direct profits from the handbook there would have been no damages to be awarded based on the arguments made by the plaintiffs. However the court did say that it appeared that Hays and MacDonald were the rightful owners of copyright and so might have been entitled to an injunction. They also discussed the nature of the work for hire clause of the 1976 Copyright Act. They said that although it appears to have eliminated the academic exception there seems to have been no intent by Congress to do so and therefore if another case came before this Appeals Circuit they might be inclined to uphold the academic exception.

This case relates very well to Mauro v Allentown. Both occur at the high school level, and both deal with teachers preparing works beyond the basic scope of the classroom. The fact that this case ended with a denial of appeal makes drawing any concrete conclusions from it more difficult, but it does appear that if Mr. Mauro did proceed with his case his might be able to receive an injunction to prevent the high school from performing his work without his permission.

Weinstein v University of Illinois et. al

Weinstein v University of Illinois et al. 811 F.2d 1091; 1987 U.S. App.

This case decided in 1987 is the most recent ‘major’ decision in the ‘academic exception.’ Marvin Weinstein was an assistant professor in the University of Illinois’ College of Pharmacy. He was told that he needed ‘publish or perish’ in his tenure track position. If he didn’t publish enough papers he would be fired and there was no opportunity for a renewal of his position short of being tenured. He wrote a paper with a colleague named Belsheim. When Belsheim submitted the paper for publication he put the names in alphabetical order and Weinstein was upset because he felt that his name should have been placed first, being the primary author of the article. He sued Belsheim and the university on the grounds that this was his work and he should control how it was published. Since this case was filed after 1976 the work for hire clause could have been applied. However the university declared that they had no interest in maintaining the copyright of professors' works and that it was a general understanding that professors owned their own research and papers despite them working for the university. Weinstein lost his case but more importantly created the beginnings of an academic exception after the 1976 copyright act.

This case related to Mauro v Allentown in several ways. The first is this case re-establishes the idea of an academic exception, not necessarily an ironclad exception, but it brings it to light. It also brings up the exception for work related to the job but not necessarily required in the actual performance of the job. Weinstein was not required to write, but if he didn’t he would not have his contract renewed. In the same way Mauro was not required to write his medley, it was outside the strict interpretation of his position. The potential problems for this case are that Weinstein is explicitly dealing with university professors and not high school teachers, and also that the university stated that they did not seek to hold the copyright of their professors. So if Allentown does declare that they wish to maintain control of their professor's copyrights then there may be fewer legal recourses for Mr. Mauro to pursue.