Through our work with independent schools, we have seen numerous schools grapple with a variety of copyright issues including disputes over ownership of work created by teachers, unauthorized use of music or videos, and the impact of AI. Below are some of the key copyright issues that we have found are particularly relevant to many independent schools.
Who owns the copyright in the work created by teachers?
Under federal copyright law, the individual who created original and modestly creative material generally owns the copyright unless (1) the person created the material for their employer within the scope of their employment or (2) a properly written agreement exists that transfers copyright. In the school context, this means that typically the school, not the teacher, owns the copyright in what the teacher created, if the teacher created the material in the scope of employment. Nonetheless, it is good practice to memorialize this in your employment agreement or employee handbook, as the teachers may not be aware of this. And in some cases, schools may wish (or not) to enter into certain very specific arrangements allowing the teachers to make certain outside uses of the material they created.
What if the work is created by an outside contractor or vendor?
If your school hires an outside party (i.e., a consultant or a vendor) to create any material for the school, you should generally have a clearly written agreement that governs who owns the copyrighted material—the school or the consultant. Simply paying the outside party does NOT mean the school owns the copyright. If the school is to own the copyright in the material, it must have very specific language in the agreement, including work for hire and assignment provisions. The gold standard is that the consultant represents that the content they provide is original and does not infringe anyone else's rights, and if this is not true, the school can seek redress from the consultant if the school is sued or receives a settlement demand.
What does "fair use" mean?
A copyright exists once something modestly creative and original is created. A copyright registration is not necessary, although it is valuable and recommended in many cases. Generally speaking, one needs permission to use another's copyrighted material absent the work being in the public domain (roughly 100 years after the work is created as a rule of thumb) or "fair use." Schools do have more latitude than others when it comes to using copyrighted material (in the classroom) without a license based on the fair use defense. BUT schools by no means have an absolute defense as educational organizations. Indeed, in some cases licenses are actually required to distribute copies of copyrighted material in the classroom. Indeed, it might surprise you that the law does not permit teachers to distribute copies of an article, for example, to their students absent meeting very specific tests, such as brevity and spontaneity standards (e.g., news of a current event early that morning), such that the teacher could not possibly get a written permission. And the unlicensed uses must not meet certain relatively complex cumulative thresholds. Ideally, independent schools would have a guidebook on basic copyright issues for educators, possibly even a training session in an upcoming professional development program, and designate specific administrators to receive more detailed guidelines and training, who can then advise with questions, or consult with copyright counsel.
Are there limits to "open-access" materials?
Many think it sounds safe to use open-access material, and it may be. But many pieces of content with an open-access license have restrictions that must be followed. For example, there are six different Creative Commons licenses, and each has different permissions to be obtained and restrictions to be followed, or you are in violation of the license (https://creativecommons.org/share-your-work/cclicenses/). Recently, there was a notable appellate court decision that found an online news journal liable (and rejected their fair use defense) when they used a photo that the photographer offered free of charge because the online news journal did not include the attribution to the photographer that his open-access license required.
Can schools play music and use photos available on the internet?
Schools should be especially careful not to use popular music or photographs, or other content, on their websites, on social media platforms, and even in live performances, without the necessary licensing. Photographers, in particular, work with companies that use technology that searches the internet for their photos. and the companies then issue a settlement demand to the school that used the photo without authorization.
How does AI impact all of this?
The arrival of AI presents great opportunities, but also significant challenges. First, much of the content an AI tool pulls from to create a new work is owned by another copyright owner, who likely did not grant permission for your school to use their content. This could pose exposure to the school if the original owner of the content sees their material in a new work put out by the school or its teachers. Schools should consider having serious discussions with their staff about the use of and the rules surrounding AI. Given the heightened possibility nowadays that material has been created with AI, schools should make certain to have agreements with any outside consultants or vendors containing provisions that the work product is original to them and agreeing to pay for the school's fees and damages if that is not the case. Second, courts and the U.S. Copyright Office have been clear that only humans can create copyrights. Because non-humans cannot own copyrights, material created solely by AI is not protected by copyright. This becomes a problem if the school does not technically own the copyright and cannot therefore register it, license/sell the material to others, or legally stop others from using the material without the school's permission. It is important to note that there are some scenarios where portions of the work could be owned by the school when it is created with AI, and this will depend on the contributions of the staff member creating the final product.
Are print rights and digital rights different?
As many of you may have seen when COVID-19 arrived and school was moved online, the fact that a school had print rights to a publication did not mean they could also offer it digitally. Pay close attention to the terms of your licenses or purchases and make sure you negotiate and obtain what you need for the students.
Who owns work and innovations created by students?
While it is wonderful to celebrate the students' great work by posting it in the classroom, sharing it online or in another publication generally requires consent from the parent. In particular, if the student work contains pre-existing work (such as music, a photo, or artwork), further analysis is needed prior to disseminating the student work, as it may infringe the rights of others. In addition, while the schools may own the copyrights of their employees, it is likely not the case with the work of students. In particular, some schools engage in such innovation that their students may develop an invention or other intellectual property. Schools likely should engage with the parents and students as to any use by the school or assistance by the school to move the innovation forward, and it may be wise to seek guidance from counsel in these areas.
We hope the above discussion of recurring key issues we have seen schools grapple with is helpful. Do not hesitate to contact us if we can be of assistance with regard to these or similar issues.