Dear Rich: I have a question regarding the ability to use a sampling of core content from a college course's series of lectures from one semester. I would be using the content within a fiction book (novel) to be sold commercially. The lecturer himself claims to have no written or recorded ("fixed") version of the lecture content. But he believes the university may have some employment clause that anything created for the course/lecture belongs to the university. Since the lecturer has never written down or recorded ("fixed") the lecture content, I was wondering if there was still any chance that a copyright is owned by the university. But I wonder if my use of the material within a work of fiction novel that will benefit society might be construed as a new way of using the information in a transformative way (even if it would still educate people like the lecture itself)? I am adding my own entertaining/educational material around the course content. But could the university claim that this (fiction novel) is a potential new market for its copyrighted work?We had to cut your question by half because we have a pay-by-the word blog service. Psych! (Wow, what if that were really the case --- it would totally redefine "free" speech!) Anyway, we're back at the part where you claim your novel will benefit society. Are you saying that (1) because you know that society will benefit from your book specifically, or (2) because all novels benefit society. If it's the former, then wow, we're impressed, and if it's the latter, then we have to ask if that rule also applies to chicklit and all those Patricia Cornwall forensic crime books where serial killers go berserk on some tiny resort island. BTW, we're undergoing a heat wave here at Dear Rich headquarters so bear with us while we say inappropriate things and then come back later and remove them!
Right, you had a question. As to who owns lecture notes ... that's the kind of question that can get two copyright geeks into a headlock. From a purely legal analysis (whoa, you know you're in trouble when the sentence starts like that), the university is the most likely copyright owner of a professor's lectures. The analysis goes as follows: the professor is an employee of the university; the lectures are prepared within the course of employment; the lecture was fixed (either because the professor wrote it all down somewhere, or because the university/professor authorized students to make notes of the speech); and therefore under work for hire principles, the university is owner. Some universities even use written contracts guaranteeing their authorship.
On the other hand dept. Despite this analysis, many universities and one aberrant California case (Williams v. Weisser, 78 Cal. Rptr. 542 (Cal. App. 1969)), once followed a tradition known as the "teacher exception" to copyright ownership under which instructors owned all copyright in their lectures. Many copyright experts believe that the exception disappeared when the 1976 Copyright Act was adopted. (There are a lot of academic articles on the topic -- for example Legal and Policy Responses to the Disappearing 'Teacher Exception,' Or Copyright Ownership in the 21st Century University by Elizabeth Townsend.) Also, to be considered is that if a lecture is primarily extemporaneous and not fixed with the speaker's authorization, it may not be protected under federal copyright but may be protected under what's known as a common law copyright principles. In any case, the issue has surfaced anew with various lawsuits over websites in which students post lecture notes.
Bottom line dept. The underlying facts in the lecture are not protected by copyright. So that should give you plenty of opportunity to avoid infringing. It also sounds as if the professor doesn't object. That's a good sign. We think you have a tricky fair use argument. Your use may be analogous to using a painting in a movie or using song lyrics in a play ... not truly transformative. In any case, if we were you (wow ... what a clash of pronouns), we'd give it a shot.
