An Administrator's Guide to California Private School Law

Chapter 20 - Intellectual Property

or not the material can be considered a “work for hire.” 2580 The work for hire doctrine is discussed below. Alternatively, an employee who owns a copyright in a work may assign or license that copyright to his or her employer. 2581 1. W ORK F OR H IRE D OCTRINE The employment status of an employee will impact whether the school has an exclusive interest in the work the employee creates through the scope of employment . In the case of works made for hire, the employer – and not the employee – is considered the author even if the employee created the work. The work for hire doctrine states: “In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.” 2582 To determine whether a work was created within the scope of employment, a court will consider and apply principles of agency, including whether: the work is the kind the employee is employed to perform; (b) it occurs substantially within authorized time and space limits; and (c) it is created, at least in part, by a purpose to serve the employer.” 2583 Generally, the copyright for any work created by a teacher or employee during the scope of his or her employment at the school belongs to the school. 2584 However, if the work was created outside of the scope of employment, the individual teacher or employee will generally be considered the copyright owner. For example, in Hays v. Sony Corp. of America , 847 F.2d 412 (7th Cir.1988), two high-school teachers created a manual for their students on how to operate the school’s word processors. The Seventh Circuit concluded that the creation of the manual was likely outside the scope of employment because the teachers “prepared the manual on their own initiative without direction or supervision by their superiors.” 2585 Another example of a work created outside of the scope of employment is the case of City of Newark v. Beasley , 883 F.Supp.3 (D. N.J. 1995). There, a city police officer created an educational program to deter juvenile car theft. The court found that the program was not created within scope of the officer’s employment with the city. Thus, the literary works in the program were not “works made for hire” and the city could not claim copyright ownership as to them notwithstanding the department rule stating that officers “shall devote their entire time to the service of the Department.” The court’s ruling was based on the fact that the city had no control over the officer’s creation of materials, the officer did not use knowledge learned as a police officer to create the materials, the officer did not create the materials during authorized work hours, and the officer was motivated by his desire to have the materials be used by others cities, not just the city which employed him. 2. T HE T EACHER E XCEPTION The “teacher exception” is a common law exception to the “works made for hire” doctrine ( i.e. an exception to the exception). The “teacher exception” allows teachers and professors to keep ownership of their work, even if that work is completed within the scope of their employment. 2586 Some courts have recognized the tradition in academia as the basis for a

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