A Maryland school district recently implemented a very controversial policy claiming that the creative work of its student is School property, not owned by the student creator. Is such a policy legal? Generally, copyrights are held by the creator or creators. With respect to minor students, traditionally they would own the copyright in their work whether their work is an original story, a drawing or a science project. Such a copyright would extend to their work no matter where it was created – at school, as homework, or even totally unrelated to school. However, the Copyright Act includes an exception to this rule: if a work is created as an employee or if a creator is hired or commissioned to create a work and the work falls within certain requirements, then the work will be owned by the employer or the hiring party, not the creator. This exception is known as a work made for hire. We will get into the specific of what constitutes a work made for hire in a minute, but it seems that some schools are using the rule as a way to claim ownership of their students’ works. Such is the case with Maryland’s Prince George’s County Public Schools System. In today’s digital world, even primary and secondary school students are creating copyrightable material, such as publishable stories, code for mobile apps, and artwork that have monetary value, which the school is claiming to own without providing any compensation to the students.
Claiming ownership of IP, especially patents, is a long-standing practice in colleges with respect to inventions or other works created by professors. Although the practice is still controversial, it is a bit more understandable why colleges would want, at least partial ownership of Intellectual property created by their staff. For example, a professor receives a salary from the College or University and uses the school’s resources for their research, which in terms of patentable IP can require significant use of resources, from physical materials to manpower. If a new breakthrough drug or major discovery is made, it is difficult to argue that the school has some rights to the work. Yet even that becomes more controversial when the professor is an adjunct or not using school resources.
However, extending this requirement to students is harder to defend, especially if those students are public school students. Take 15-year old Arjun Kumar, who won last month’s MIT’s App of the Month award for his app, Locatera. (he also won the award for the predecessor of his app in 2012). Locatera allows parents to check on their children’s bus routes. If he were attending school in Prince George County, his app would be owned (or claimed to be owned) by the school district. which would severely limit Arjun’s opportunity to benefit monetarily or even have control over the development of his invention. The same holds true for anyone creating artwork, videos, essays, books, or any type of creative work.
Usually, if a school wanted to display a student’s work, it would seek express permission from both the student and the parent. While granting a school permission to use the student’s work amounts to granting the school a general license to reproduce the work, it doesn’t mean that a student is forfeiting their copyright in the work, unless an agreement states otherwise. And in some of the cases discussed below, that’s exactly what a school is attempting to do.
Did the Prince George School District have the legal right to make such a power grab?
Can a School Own the Copyright in Student Work?
To analyze whether a school can own a student copyright, we must first look at the rules in the Copyright Act. As mentioned earlier, there are two types of work made for hire, each having specific criteria: those for employees and non-employees.
Employees in a Work Made for Hire
When an employee creates artwork as part of his or her employment, the copyright will be owned by the business. In most cases, whether someone is an employee is obvious, but in many cases employment is not so clear-cut. Being called an employee is not enough to define that role, despite both parties agreeing to that role. That means that even people that are not called employees may still be employees. Classifying someone as an employee depends heavily on how much control the employer has over the employee’s work? When a court determines whether there is a work-for-hire situation, they usually look to the following factors:
- What are the skills required to create the work?
- Who provides the necessary tools?
- Where is the work created?
- Can the employer assign work to the creator?
- How long has there been an employer/employee relationship?
- Does the employee have predefined working hours?
- How is the employee paid?
- Does the employee receive benefits?
No single factor will decide the outcome, but instead, they are taken as a whole to see how much control the employer has over how the work was created. The analysis is not always easy. For example, a creator who works every day at a company office, using their equipment and resources, receives healthcare, yet is paid an hourly rate, may or may not be an employee. (For more detailed information, look at the work made for hire guidelines outlined in our e-book, The Law of Creativity.)
Non-Employees in a Work Made for Hire
If a person doesn’t qualify as an employee, the creator’s work can still be a work made for hire. Unlike an employee situation, in which the creator is under the control of the employer, the non-employee, like a freelancer, has much more freedom. The freelancer uses his or her own tools, decides when the project will be scheduled, and bills the client directly. The lack of control differentiates the freelancer from the employee and as such, the freelancer retains the copyright. However, under specific circumstances, the buyer can claim the same rights as an employer. The buyer received the full copyright if there is:
- A written agreement signed by both parties;
- that specifically states that the work is a “work-made-for-hire;” and
- the work must be one of these nine types:
• a contribution to a collective work,
• part of a motion picture or other audiovisual work,
• a translation,
• a supplementary work,
• a compilation,
• an instructional text,
• a test,
• material for a test,
• or an atlas.
For students, this type of work made for hire would be a stretch. They are not being commissioned for their work, they are creating the work as part of their assignments or as part of some learning experience. There is no contract explicitly stating that any particular creation is a work made for hire. Students do not sign any agreements, and any rules by which they go to school are broad. They do not say that the particular work is a work made for hire. So it is highly unlikely that schools could use the non-employee rules for their power grab, so the school would need to find a way to suggest that there is an employee relationship with their students if they want to own the students’ copyrights or other intellectual property.
Can Students Be Considered Employees Under Work-for-Hire Principles?
In the case of student and school relationships, there are certain aspects of this arrangement that could lean towards a work made for hire relationship, but such a classification would be highly unlikely. Yet school districts are still trying to make the claim. Prince George’s County Public Schools drafted policy language for copyrightable works created by both employees and students proposing that the school would own works created by teachers and students when made “specifically for use by” the district, an individual school, or a particular department, even if it was done outside of school hours when the student or teacher was off the property. However, after a lot of discussions, consternation from parents, and a diverse set of opinions expressed by the various players involved, the Maryland school decided ultimately to scrap its policy – even though it was attempting to address issues regarding joint, commissioned, and student work, such concerns should usually be reserved for graduate level students.
Consider another example involving a student at a Texas high school. As reported by the Student Press Law Center, the student was a photographer taking photos of student activities and events for the school yearbook, but the Lewisville Independent School District disputed the copyright owner when the student photographer posted the photos online and received inquiries from parents about buying the photos. The school district questioned whether photos of other students taken with the school’s camera would constitute ownership of the copyright in student work. This prompted the school to prepare an agreement asking students and parents to “release any claim of ownership to images taken of other students with equipment owned by the District,” language oddly reminiscent of a work-for-hire arrangement. But can students engage in a work-made-for-hire arrangement with a school, even when they’re not being compensated for their work?
And even then, imagine what was to happen if graduate-level students were prevented from owning copyrights in their work? There would be no incentive for students to create and sell their work since anything they create while at school would not enjoy copyright benefits – rather, the school would own the copyright in student work. And creating general licenses in student work in any instance in which a student gives a school permission to use their work could be onerous for both parties since it would require them to address and assign rights any time an issue arises.
When schools have the potential to profit from student-produced work, or when schools prohibit students from profiting from their work by owning the copyright in student work, it limits the free flow of creative expression.
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Nicole is a veteran arts and culture journalist. Her work has appeared in Reuters, VICE, Hyperallergic, Univision, and more.