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Who Owns Work Created by University Professors?

An issue came up recently that is worth discussing. The question posed is: Does a university professor own the copyright in the materials he or she creates in the scope of his or her professorial employment?

I would answer the question as “yes,” at least under the Copyright Act. Interestingly, many educators with whom I’ve spoken seem to think that the answer is categorically “No!.”

Now I haven’t spoken to scores of professors about this, but I have spoken to a few. Here is an example of one who gave me permission to share our conversation on this blog.

Howard Suber is a professor in the School of Film and Television (at least that’s what it was called when I attended) at UCLA. He is one of UCLA’s finest educators, and like many of his colleagues, he writes extensively both in connection with classroom activities and otherwise. His take on this issue was:

“I thought it was settled law, established decades ago in cases, that the intellectual property a professor produces is his/her own and does not belong to the university, absent signed documentation to the contrary. [¶] The patent and I.P. department at UCLA and elsewhere routinely try to get researchers in the sciences, engineering, etc. to sign such stipulations. But I’m not aware of any in the arts and humanities, have never been asked to sign such a document in my 45 years at UCLA.”

I’ll come back to UCLA’s policy – and Professor Suber’s belief in a moment. First, let me lay the foundation for my view of the world.

Let’s start with the work for hire doctrine. Under that doctrine (17 U.S.C. Section 201(b)) a “work for hire” is the property of the employer of the creator of the work, not of the creator provided the work was “prepared by an employee within the scope of his or her employment.” (See also 17 U.S.C. Section 100.) There is no express statutory (or binding case law) exception for educators. Rather, you have to conduct a factual analysis to determine whether the work was created with the scope of employment. See principally Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) (the seminal “work for hire” case that set forth a muti-factor test to determine if the work-for-hire doctrine applied); Restatement (Second) of Agency (setting forth the following factors, all of which must be shown to establish that the employee was acting within the scope of her employment: (1) whether the work is of the type that the employee is employed to perform; (2) whether the work occurs substantially within authorized work hours; and (3) whether its purpose, at least in part, is to serve the employer).

Under the multi-factor test in Reid, the court will look to, among other things, whether the “hired party” is an employee of the “hiring party”; whether the hiring party has the right to control the manner and means by which the hired party creates the product at issue (here it would seem to be the teaching materials); whether the hired party uses his or her own equipment, tools, etc. and where he or she creates the work. The court will also look at the hired party’s discretion over when and how long to work; whether the work is part of the regular business of the hiring party; and the provision of employee benefits to (and the tax treatment of) the hired party. Notably, the Court in Reid said that no one factor was determinative.

Under the holding in Reid, it would seem to me that where one is employed expressly for teaching purposes, a professor’s teaching activities would fall under the work for hire doctrine. While professors certainly have a good deal of autonomy, they still receive a pay check for teaching (from which the university will withhold taxes), and likely receive employee benefits such as insurance, retirement plans, etc. I don’t know whether universities assign the classes to be taught in all instances, I assume not, but it may impose some requirements with respect to this that would arguably fall under the scope of Reid. When you look at all those factors, and consider as well the rules regarding Agency that I set forth above, it is hard for me to believe that a court would find that faculty-created teaching materials are not prepared within the scope of the professor’s employment.

By the way, I also think that there is also a good argument that outside scholarly works could be likewise considered a work for hire, but I think the argument there is not as robust.

Now, turning back to the seemingly-prevailing view of this issue in world of academia. You’ll recall that I mentioned UCLA’s policy on the matter. According to one administrator there, “The answers are quite clear at UCLA . . . .” And those answers are set forth in the following links: http://www.universityofcalifornia.edu/copyright/systemwide/pcoiv.html; http://www.ucop.edu/ucophome/coordrev/policy/8-19-92att.html; and http://www.ucop.edu/ott/faculty/crworks.html.

Reading these through, you will notice that the UCs give ownership much as does the Copyright Act (and as does the ruling in Reid). That is, the professor is given ownership of his or her “scholarly/aesthetic work,” defined as work that is originated by the professor “resulting from independent academic effort” unless such works are “sponsored works or contracted facilities works [meaning works that originated with the use of University controlled buildings, equipment, computer centers, certain laboratories and other facilities, but excluding University libraries]. . . .” Professors are also given the copyright in their “personal works” which are defined as “work that is prepared outside the course and scope of University employment (except for permissible non-University consulting activities) without the use of University Resources.” In other words, if the work is “independent” or outside the course and scope of the professor’s employment, the copyright in the work usually will belong to the professor. To the extent this is more generous than the Act itself provides, keep in mind that it contractually given to the professor and not given as a matter of law.

Now according to Professor Suber:

“I’m sure you’d find that virtually every major university in the country makes similar statements [to that which is on the American Association of University Professors’ website: http://www.aaup.org/AAUP/protect/legal/topics/copy.htm . I don’t know of any university that has tried to claim copyright in a professor’s lectures or scholarly writing unless, as the UCLA statement says, the work was specifically commissioned for a narrow purpose and the professor signed an employee-for-hire contract. . . . [i]f your hypothetical were ever translated into practice, the professoriate of every university in the country would be in arms. It hasn’t happened because, as far as I’m aware, no university of any repute would dare assert ownership.”

I’ll just note that the AAUP site does include several references to case law on this topic, but most of them go against the professor and I do not believe that those which don’t are binding copyright precedent.

So, all this to say: check with the school’s technology transfer policy before assuming who owns – or doesn’t own – the copyright in work created by a professor. Absent a generous grant to the professor in that document, the “work for hire” doctrine should apply.

Jonathan Pink is a business lawyer with a specialty in copyright, patent and trademark litigation. His clients include many of the biggest names in the automotive and motorcycle aftermarket parts industries, and one of world's largest media companies. He has extensive experience in a wide range of intellectual property and commercial disputes including breach of contract, fraud, and the misappropriation of trade secrets. He can be reached at 949.223.7173, or at jonathan.pink@bryancave.com, and his full profile can be viewed at www.bryancave.com.

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