Late last month, Teachers Pay Teachers (TPT), was in the news with the release of its February 2022 State of Education Report. In that report, TPT noted that it has developed “a global community of over 7 million teachers, including more than 85% of PreK-12 teachers in the U.S.” However, before distributing materials on this and similar sites, teachers should know they may not have the right to do so, even in the works they create.
The 1976 Copyright Act and Works Made for Hire
Under the 1976 Copyright Act, the person that creates a work is generally considered the author and copyright owner. However, there is an exception to this general rule for works made for hire. Importantly, all works “prepared by an employee within the scope of his or her employment” are works made for hire under the Copyright Act. For works made for hire, the employer is the owner of the copyright unless both parties involved have signed a written agreement to the contrary. 17 U.S.C. § 201(b). The rationale behind the “works made for hire” doctrine is that when an employer hires an employee to create a copyrightable work, the fruits of the employee’s endeavors properly belong to the employer.
This means that a teacher does not own the copyright of any materials he or she prepares within the scope of his or her employment with the district, unless there is a written agreement between the parties to the contrary. While the work for hire analysis can be complicated in some situations, it is usually quite straightforward regarding most materials that coaches and teachers create. Generally, the lesson plans, course materials, tests, and quizzes that a teacher creates are works made for hire. See Shaul v. Cherry Valley-Springfield Cent. Sch. Dist., 363 F.3d 177 (2nd Cir. 2004) (holding that lesson plans and other teaching materials produced by a teacher were the property of the employer school district, and noting that the broad nature of a teacher’s employment responsibilities causes most materials a teacher will produce to fall within the scope of a work made for hire.) Similarly, the plays, gameplans, and scouting reports created by coaches within the scope of their position will also be works made for hire.
Relevantly, the copyright owner of a work has the exclusive rights to: reproduce and make copies of the original work; prepare derivative works based upon the original work; and distribute copies of the original work to the public by sale, transfer, rental, lease, or lending. 17 U.S.C. § 106.
But Isn’t There a Teacher Exception?
Prior to the 1976 Copyright Act, some courts found there was an exception to the usual works made for hire doctrine of copyright law when academic materials were produced by those employed by schools. However, this exception was not included in the Copyright Act, and several courts have held that the “teacher exception” did not survive the legislation.
Mo’ Money Mo’ Problems
When a work falls within the definition of a work made for hire, copyright interests vest in the employer. This means that schools maintain the exclusive rights to most materials teachers prepare, and that only the school district may reproduce or distribute the materials. As a result, unless the educator has a written agreement with their employer stating otherwise, the educator cannot sell or share the course materials, lesson plans, or related works they create. To do so would constitute copyright infringement and expose the teacher to liability to their employer which could recover the money derived from selling or sharing the work or statutory damages. This is why most school boards have a policy on how and when materials owned by the district can be shared (such as with ESU workgroups).
Plenty of Risk to Go Around
Not only are educators at risk if they attempt to sell or share resources they do not have rights to, but educators infringe on a copyright when they copy, reproduce, or distribute works they receive from a source without proper distribution rights. Educators also infringe on a copyright when they exceed the scope of the license they receive from a bona fide seller, like a textbook provider. We recommend any users of these educational resource providers carefully review the agreements and representations associated with the service, and take steps to ensure they are receiving materials from reputable sources with appropriate distribution rights.
Hopefully, this information didn’t put too large of a dent in your retirement plan. If your school has any questions about copyright issues, or something more fun, please don’t hesitate to send us an email at ksb@ksbschoollaw.com, or call Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara at (402) 804-8000.