Friday, November 22, 2013

Does Teacher Own Copyright to Lectures?

Dear Rich: I have been researching to find out whether a copyright attaches to course lectures and any recordings thereof made by the school (whether audio only or audiovisual). I have a client who would like to register several volumes of lectures, but I'm not sure copyright even attaches. I assume that most college professors get their teaching material from outside sources, but they might present the information in a unique and original way. How does this affect and their right to copyright their lectures and recordings of lectures (or really, the schools right to do so, pursuant to "work for hire" doctrine)? Although the underlying lecture facts are free for all to use, it's our experience that most lectures are sufficiently original to be copyrightable.
As for who owns the lectures ... Most professors likely retain rights to their lectures and notes. This is not due to statutory requirements -- the law seems clear that copyright vests in the university because the lectures are work made for hire (that is the professor is an employee of the institution and the lectures are prepared within the course of employment). However, in practice most schools permit professors to maintain ownership of lectures, notes, and related materials either by written arrangement (in some cases this grant is set forth in the employee handbook or under posted work made for hire guidelines) or it's simply implied by the lack of enforcement. (Note: A failure to cede back copyright to professors may inhibit the school's ability to attract talented teachers.)
Fixation. One issue that pops up when making a copyright analysis is fixation -- whether it is sufficient and with authorization (the professor wrote it all down somewhere) or whether it is without authorization (a student taking notes). 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 principle. In any case, the issue surfaced anew over a website that encourages students to post lecture notes.

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