Is It Legal? Educational Course Content and Work-for-Hire Contracts

Nancy E. Wolff

Q: During a recent panel discussion, an educator raised a question about a new contract his school is preparing that seeks to claim ownership of intellectual property developed by teachers as part of a school curriculum. If a teacher creates content, who owns it, the school or the teacher? For example, can the school syndicate an online program created by a teacher?

A: As someone who may regularly endeavor to create lesson plans or course outlines for an employer, such as a school or university, it is important to keep in mind some basic rules of copyright law. Ordinarily, someone who creates a copyrightable work is the copyright owner. However, under the work-for-hire exception, the copyright will be owned by the employer if the work was created by an employee within the scope of his or her employment. This can be a tricky issue because it is not always clear what activities fall within the scope of employment.

Teachers and professors would certainly be considered employees of their academic institution, making their creative works potentially subject to the work-for-hire exception. While the issue is evolving in the courts, there have been some decisions that distinguish among the kinds of works that fall within the scope of employment. Quizzes, tests, lesson plans and course outlines are some examples of creative works that fall within the work-for-hire exception. The idea being that it is a necessary component of a teacher’s or professor’s employment to create these types of works, therefore their employer, the university or school, would be the copyright owner. On the other hand, scholarly articles published in peer-reviewed publications may not be subject to the work-for-hire exception, because they are more incidental to the job description of a teacher or professor. Similarly, if an instructor is teaching a creative course, such as art, illustration or photography classes, the instructor would own any artwork created during the course of the employment.

This brings us to the final issue: contracts. Ownership of intellectual property is governed more and more by contract, and it is essential to read all contracts carefully prior to signing. Educational institutions are attempting to own by contract more of the intellectual property rights of the faculty than previously. Even if you create a copyrightable work outside the scope of your employment, your employer may still be the copyright owner, depending on what your employment contract says. If a college employer is offering the teacher a stipend to make online courses that parallel the courses the teacher already teaches, it is likely that the college expects to own the intellectual property and the course. If you do not elect to continue to teach the course, some institutions may offer payment for your course adaptation for an additional stipend, for a limited number of years. There may even be language in the college agreement relating to sharing in the proceeds if a course achieves commercial value. Because the law can be unclear as to what is covered under work-for-hire, if you are an employee, you should carefully review and negotiate the intellectual property clause in any teaching agreement.

Nancy E. Wolff is a partner at Cowan, DeBaets, Abrahams & Sheppard, LLP. Her practice focuses on intellectual property and digital media law.
Nancy Wolff headshot © David Lindner

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