Instructional Materials and ‘Works Made for Hire’ at Universities: Policies and Strategic Management of Copyright Ownership

Abstract

Under the copyright doctrine of “works made for hire,” the author and copyright owner of the work is the employer of the person who created it. In the context of many instructional materials and scholarly publications created by faculty authors, however, placing all rights with one party, whether with the university or with the creator through transfer, can be problematic and detrimental to the goals of higher education. In determining whether the doctrine applies, courts look to details of the situation and whether the work performed is “within the scope of employment.” Recent court cases suggest that the doctrine likely applies broadly, and recent developments in the law weaken arguments for a “teacher’s exception” to the work-made-for-hire doctrine.Even if a work is deemed to be “for hire,” the copyright statutes include two important opportunities to change that result. First, the university could simply transfer the copyright back to the faculty member. Second, through a provision of the work-made-for-hire statute, the creator of the work and the employer may agree to reallocate the rights between themselves. Either way, the work remains a work made for hire, and other attributes of a work for hire remain applicable. In order to avoid some of the adverse consequences of works for hire, a copyright owner may choose unbundle rights by transferring or licensing only some rights of ownership, relieving tension and conflicts surrounding claims of ownership. Many colleges and universities have routinely opted for general policy statements that articulate copyright ownership principles. Recent cases, however, indicate that general copyright policies in the context of works made for hire may not satisfy statutory requirements for copyright transfers. Thus, educational institutions and individuals can effectively manage their copyrights, but only by properly attending to the requirements of the law.A court ruling since publication of this work has raised the possibility, in consideration of a motion for summary judgment, that a general university policy allowing faculty ownership of instructional materials may be enforceable. See Bosch v. Ball-Kell, 206 WL 2548053 (C.D. Ill. 2006).