subscribe to this page15 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.
12 Alb. L.J. Sci. & Tech. 231 (2001-2002)
This article looks at the principle of the academic copyright and explores its relevancy to today. The part that I focused on was section on academic freedom: how much liberty can a professor or teacher take with their actions or research before the employer intervenes. It has generally been argued that professors should have more freedom to explore controversial topics than other professions since their primary goal is advancing the general good; particularly through interactions with their students. This cannot be done with the threat of censorship hanging over them constantly. However there must be a balance. Professors must also know that they represent their employers and that because they can have a much more public image than other comparable employees at other places of employment they must present an appropriate image.
This issue is emerging again because the definition of a professor is undergoing change. Before it was understood that professors had lots of interaction with their students and that this interaction was one of the primary reasons that academic freedom was essential. However now that distance learning is emerging, there is the question of whether professors are becoming less interactive. Generally it is understood that while the professor-student interaction is no longer immediate the professor can still interact with them as much if not more than previously and therefore the maintenance of academic freedom is essential.
This academic freedom is one of the prime factors behind the teacher exception, if a professor is taking more responsibility over their own statements and the university is backing off and allowing professors to exercise their own will without oversight, then it can fairly reasonably be argued that these statements by the professor are their own and not copyrighted by the university.
The concept of academic freedom in and of itself does not impact the case Mauro v Allentown directly. But by understanding the background of the teacher exception we can look more critically at the case and understand some of the nuances better
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.
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.
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.
Mauro v Allentown High School, Upper Freehold Regional School District et al.
This is a description of the case as described by a third party who has consulted about the matter with parties representing both a plaintiff and the defendant.
Mr. Peter Mauro was the director of the Allentown (NJ) High School Marching Band for about 15 years. He was removed from his position in January 2006 but was retained in a separate position in the school. He had composed a medley of Irish music that the band has used and won with in parade competitions for several years. The band performed this piece under the new band director at the 2006 New York City St. Patrick’s Day Parade, which they won and received a monetary prize.
Mr. Mauro is claiming copyright infringement against the high school, school district and other individuals and intends to sue for damages. He argues that they illegally obtained the documents from his classroom when he was not allowed to remove them from there with the rest of his personal belongings. He says that the composition does in fact belong to him since he is the arranger and the work is an original piece. He also argues that the arrangement does not fall under the work for hire clause of the 1976 US Copyright Act since his job did not require him to write new music. However there is a question of when exactly the music was given to the students; since Mr. Mauro is in the habit of giving the band their music in the fall semester to allow them to practice. If they were given the music by Mr. Mauro the fact that he did not re-collect the music from his students could be seen as giving them permission to perform those works.
The school district argues that because he is a teacher and that the music he wrote was used in the performance of his job then it must be a work for hire and the school can use it as they see fit. They also say that Mr. Mauro was given time to protest the use of this piece prior to its performance and that he sees an opportunity to get back at the school for removing him from the director's position.
This case has not yet been filed in court and so there is no case number.
Shaul v Cherry Valley-Springfield School District et al. 363 F.3d 177; 2004 U.S. App.
This case was filed by William Shaul against his former employer accusing them of illegally confiscating his personal property from his classroom. Shaul was fired from his position as a teacher in the high school. He was given permission to return to his office and classroom to remove his personal effects. However he said that he wasn’t given enough time to get everything. When he went back to get more he was not allowed in and when he tried to get the district to surrender his remaining effects he was not given them. Shaul says that because the school didn’t give him enough time to remove his personal items they violated his fourth amendment rights to reasonable search and seizure. Among the items he claimed were various photos and also his class notes and quizzes, which he claimed to own based upon the academic exception. The court found in favor of the school district saying that in general enough time was given for him to remove his belongings. And specifically they addressed his class notes saying that because he was not the author of the quizzes and that class notes were created directly from him performing his job they were the property of the school district under the work for hire clause.
This case while only tangentially dealing with the academic exception does address the issue of whether Allentown High School took the score from Mauro's possession without his permission in Mauro v Allentown. There are a few extenuating circumstances such as whether or not Mauro gave the sheet music to the students prior to his removal from his position. And also the fact that Mauro was told not to remove any music when he was allowed to remove his personal belongings from his classroom could be a factor in the decision, however this is a remarkably similar case in which the school was the winner.
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.
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.
Williams v Weisser, 273 Cal. App. 2d 726
This case from 1969 is the second, and by far the most famous, common law decision to establish the concept of an ‘academic exception.’
The case concerns B. J. Williams a professor at UCLA and Edwin Weisser a man who had a business selling class notes to UCLA students. Weisser hired a student to attend Williams’ class and using the notes the student took created a product that he sold to other students. Williams sued Weisser to stop him from doing this saying that as the owner of the lecture notes he had the right to decide when and how they were published. Weisser disagreed saying that the notes were a work for hire and therefore the university owned the rights and Williams had no grounds to sue. UCLA produced a letter they had sent to all professors saying that they did not make a claim to own any of the professor’s lecture notes. The courts eventually ruled that Williams did own the rights to his notes and thus Weisser was in the wrong.
This case is one of the clearest cases establishing the academic exception. There is no other claim for Weisser other than that the notes are a work for hire. When both the employer and the employee deny that and say that the very notion of a university having claim to the copyright of their employees lecture notes is unecessary, then they have established the idea of the academic exception very strongly.
There are downsides to this case with regards the Mauro v Allentown case. First, the case decided the academic exception at the university level and did not address the high school level. However it does establish it for class notes and the Irish medley is a classroom aid similar to a set of class notes, produced by the instructor, and not necessarily essential to the teaching of a class, only beneficial. Second, and more importantly, the case was decided prior to the implementation of the 1976 Copyright Act, which clearly defines the work for hire clause. That definition seems to allow no wiggle room for the academic exception. This means that other decisions would be needed to extend and further establish the academic exception.