COMr10N LAI'I COPYRIGHT FOR TEACHERS
JAMES E, COOK
I.
'INTRODUCTION
Copyright is a limited monopoly in a form of expression which
resides in the author of a wrli ting. l
The authority of the federal
government to grant copyright protection is found in the Constitution, Article I, section 8, clause 8, which empowers Congress "To
promote the progress of science and th'e useful arts, by securing
for limited times to authors and inventors the exclusive right to
their respective writings and discoveries."
In speaking of this
clause, James Madison wrote, "The utility of this power will
scarcely be questioned. n2
But, he also went on to say that copy-
right "has been adjudged, in Great Britain, to be a right of common
law."3
And, common law is, indeed, an important source of copy-
right protection in the United States as well.
The Copyright Act, section 2, provides:
Nothing in this title shall be construed to annul or
limit the right of the author or pioprietor of an
unpublished work, at common law or in equity, to prevent the copying, publication, or use of such unpublished work without his consent, and to -obtain
damages therefor. 4
It should be noted that this section exempts only unpublished
works from the formalities of the Copyright Act.
After "publica-
tion," a term of art in copyright law, the author's sole protection is that afforded by the federal statute.
Thus, in one
sense, common law copyright is more limited than is statutory
copyright.
But, there are other facets to common law protection
of literary property, and it is the aim of this paper to give a
2
brief treatment of some of them.
Of greatest concern shall be the
non-statutory protection afforded by the common law to teachers in
the materials they prepare for, and present to, their students.
Just as the Constitution and the Copyright Act bestow upon
authors a limited monopoly in a published form of expression, the
common law grants teachers, as authors,S protection in the unpublished products of their creativity.
Statutorily, the author of
a copyrighted work is given a host of rights:
to print, reprint,
copy, vend, and translate the work1 to dramatize the work, or to
convert it to a novel if it be dramatic1 to arrange or adapt it if
it be a musical work1 to deliver or present the work in public for
profit, and many more. 6 In comparison, the author of an unpublished work has the following rights_ at common law:
the ownership
of the physical work1 the right to its first publication1 the
right to limited publication1 the privilege of assigning the
rights of first publication and -limited publication1 and the right
to secure statutory copyright.'
The author's statutory protection
lasts for a maximum of 56 years, yet
.. common law copyright in
th~
~
an unpublished work is potentially infinite. 8
It appears that,
although statutory copyright is broader in s?me respects, the
author's common law copyright affords him a good measure of
comfort.
The reader might wonder why this paper intends to treat only
common law copyright.
The reasons for this are quite practical.
The Copyright Act very plainly states the extent of the author's
rights, the formalities required for obtaining copyright, and the
authdr's rights upon discovery of infringement.
Common law rights
3
are not so clearly delineated.
As essentially judge-made state
law, common law copyright is not universally structured or uniformly applied.
And, common law rights are not always well under- .
stood by the courts trying to apply them.
Furthermore~
'this paper is written with the teacher in mind,
not the copyright lawyer.
It is the practice of the teaching pro-
fession to make its intellectual products available to its students,
without consideration of such formalities as the Copyright Act demands in return for protection.
Since the teacher is more con-
cerned with teaching than with application for statutory copyright,
common law copyright takes on great importance.
Another point for consideration is the fact that the Copyright
~ct protects mainly published works. 9 But nearly everything a
teacher prepares for a class is unpublished, in the ordinary
~ense.
~s
For this reason common law copyright protection looms large
the only source of protection the teacher will have.
Finally, many in the teaching profession are unaware of the
possibility of statutory copyright protection for their works •
.
Despite ample evidence of the dollars and cents importance of public utterances to individual and to
body politic alike, remarkable little interest in
legal protection of the intellectual products involved has been shown by the speakers of lectures,
sermons, and addresses who created and del i vered
them. Typical reactions of well known contemporary
speakers and editors have indicated much awareness
of the honor of speaking and publishing, but they
have shown themselves relatively uninformed as to the
rights they might exercise under the statute. lO
And the same can easily be said of teachers with regard to their
works.
In total, this means that if the teacher is to have pro-
tection for his literary works, it will be by common law.
4
II.
BACKGROUND OF COMMON LAW COPYRIGHT
It has been mentioned above that common law copyright has not
always been well understood.
that right.
This is due to the murky origins of
Although copyright, generally, is now considered to
be vested in the author of a work, this has not always been the
case. ' It was, long ago during the early development of common law,
a right belonging to publishers.
As far back as 1357, there have been groups of bookbinders
and printers who enjoyed the special rights of control over the
ll
publication of books.
The main group, called the Stationer's
Company, granted copyright to its members.
monopoly on literature itself.
This was, in effect, a
The Stationers not only controlled
the activities of the rank-and-file of the printing trade, they
even regulated the number of printing presses which could lawfully
be operated.
Since authors could not be members of the Company
(because they were not publishers), they were excluded from the
privilege of exercising copyright , control over their own works.
.,
And so, the "Stationer's copyright" was "probably the first such
right to gain recognition.
From time to time, the Crown would interrupt the businessmen's control over copyright and grant to an individual printer
the exclusive right to publish a certain work.
This was accom-
plished by the "printing patent," and it was considered to be an
exercise of the royal prerogative.
Although printing patents were not limited to members
of the company, stationers were the most frequent
grantees, and the company itself was the grantee of a 12
valuable printing patent from James I in 1603 and 1616.
5
with the ascent of Parliament and the downfall of the royal prerogative came the end of the "printing patent."
Still, copyright
was a publisher's right.
Beginning with Henry VIII's struggle with the Church of Rome
and continuing through the Interregnum, censorship was a real problem for the English government.
One author suggests a line of
reasoning which might have crossed the minds of the Tudor monarchs:
The preservation of the realm is the first condition
of public good.
It is therefore necessary to support
all those things which uphold monarchy and its order,
to oppose all those things which endanger it. Difference in political and religious matters endangers
it. The press, wrongly used, may nourish such difference.
To prevent wrong use, the state must control
the press. The most efficient control is absolute. 13
For such reasons, censorship acts were passed which enhanced the
already great power of the Stationer's Company.
Not only did books
pave to bear a "Stationer's copyright" in order to be published,
put it also had to be approved by a censor appointed by the crown. 14
The Stationer's grip on copyright finally came to an end with the
expiration of the Licensing Act in 1694.
To this point, copyright was a
15
publi~her's
right.
to say that the author was without rights at all.
which publishers held was limited in scope.
This is not
For the right
When the author sold
his manuscript to the publisher, all the publisher acquired by his
copyright was the right to print the work.
The copyright owner did not own the subject work as
such and was not free to alter it any more than the
grantee of a printing patent was free to alter the
work he was privileged by the sovereign to publish. 16
This, however, leaves unanswered the major question, "What was
the extent of the rights retained by the author?"
The common law ·
courts have attempted answers, but most efforts have failed.
The
6
reason for this is that the author's common law copyright is a
creature of common law after the fact.
was law made
~
The Stationer's copyright
businessmen for businessmen.
by the courts, but merely recognized by them.
It was not fashioned
It is not surprising,
then, to find that the author's rights were seldom considered.
For
this reason, courts of a later time were left to guess what might
have been the author's rights before publication.
III.
THE STATUTE OF ANNE
Codification of copyright came with the passage of the Statute
of Anne in 1709. 17 The full title of the Act is "An Act for the
Encouragement of Learning, by Vesting the Copies of Printed Books
in the Authors or Purchasers of such Copies, during the Times
therein mentioned."
Immediately one learns that this law vests
copyright in the author, not in the publisher, and that it covers
pnly published works.
This was a drastic change from practice.
To say that the booksellers and printers were discontented with
the law is an understatement.
The immediate outcome of
.
,
this disco~tent was a
struggle in the
courts over the author's newly found rights • . In this "Battle of
the Booksellers,,,lB the publishers argued in favor of an author's
perpetual copyright in his work.
Were they able to convince the
courts of this, it would be an easy matter to revive the old Sta- '
tioner's copyright, this time by the command of the Court, simply
by obtaining from the author an assignment of his copyright.
This
controversy finally came before the King's Bench in 1769 in the
case of Millar v. Taylor. 19 That court held, in a three toone
decision, that the Statute ~f Anne did not divest the author of
7
the perpetual copyright he held at common law.
portant to this study for three reasons:
This case is im-
first, it announced that
copyright was an author's right; secondly, it established that
this right of the author had existed at common law; thirdly, it
proclaimed that this right was not divested by publication.
It
was this pronouncement that laid the foundation for common law
•.
copyright protection.
The victory of the booksellers was, however, short lived, as
the Millar case was overruled by the House of Lords in 1774 with
.
20
the decision in Donaldson v. Beckett.
On essentially the same
facts as were presented in Millar, the House of Lords held that the
Statute of Anne divested an author of his common law copyright as
soon as he
pub~ished
his work.
It should be noted that the High
Court of Parliament did not question the other principles proclaimed in the Millar case, namely, that copyright is an author's
right, and that this right had' existed at common law prior to the
Statute of Anne.
The only notion disturbed was that the author's
The Donaldson
.
,
the proposition that after publication" the author's
common law copyright continued beyond publication.
case stands for
only copyright protection is that afforded by statute.
IV.
DEVELOPMENT OF AMERICAN COPYRIGHT LAW
The Statute of Anne and Donaldson v. Beckett both served as
models for American copyright law.
By the time the Constitution
was ratified, the idea that copyright belonged to the author was
undisputed, as the Copyright Clause demonstrates .
And in 1790,
when Congress passed the fir,st federal copyright act, copyright be-"
came the author's· right as
if.
matter of statutory law.
B
The first great case to test the Copyright Act was Wheaton v.
Peters,
21
brough~
before the Supreme Court in 1834.
Both of the
principal parties had been reporters of the Supreme Court, and this
case involved the efforts of Peters to republish for profit the
22
reports of Wheaton.
Wheaton claimed his reports were copyrighted according to the Act, and, the Act notwithstanding, he reserved his common law copyright therein.
Peters claimed that his
republication did not infringe Wheaton's rights for three reasons:
(1)
since Wheaton had failed to comply strictly with the terms of
the Copyright Act regardi ng delivery of the claimed work to the
office of the Secretary of State, t he works were not covered by a
valid federal copyright, and having been published, they were
merely part of the public domain;
(2)
Wheaton could not claim
common law copyright in the works because there was no common law
popyright recognized in the United States;
(3)
Wheaton had no
f ights in the works because law reports are not copyrightable subject matter.
It must be noted here that when these parties spoke '
of "common law copyright" they
did so in the same sense as did
,
the parties in Millar and Ddna1dson, that ' is, perpetual copyright
in the author surviving publication.
The Supreme Court, per Jus-
tice John McLean, adhered to the principles of Donaldson v.
I
Beckett, and ruled against Wheaton on the issue of his common law
copyright .
Admitting that the subject of statutory effect on com-
mon law copyright was "by no means free from doubt," Justice
McLean went on to say,
That an author, at common law, has a property in his
manuscript, and may obtain redress against anyone
who deprives him of it, or by improperly obtaining a
copy endeavors to realize a profit by its publication,
cannot be doubted; but this is a very different right
9
from that which asserts a perpetual and exclusive
property in the future publication of the work, ~jter
the author shall have published it to the world.
Common law copyright, if such ever existed in the United
States, cannot survive publication.
This led Justice McLean to
see that if Wheaton's complaint was to be upheld, it must be because of rights acquired under the Copyright Act.
The Court de-
termined that the provisions of the Act which required depositing
the works with the office of the Secretary of State should be
strictly construed.
But·, since the evidence . was unclear whether
Wheaton had complied with the requirements, the cause was remanded
to the circuit court for a determination of the facts by jury.24
As to the last issue of the case, the Court was unanimous in
the view that'.' no reporter has or can have any copyright in the
written opinions delivered by this court.,,25
But Wheaton might
still claim copyright in headnotes, marginal notations, or any
other new matter which he had contributed.
26
Thus, Wheaton v. ·Peters continued the logic of Donaldson v.
Beckett, and held that common law perpetual copyright could not
survive publication. This b J ingS the sthdY of common law copyright
to the undeniable conclusion that, prior to publication, the
author does have perpetual rights in his work.
I
But the reader
might wonder how this affects teachers , for the work for which
they seek protection, though not published in the ordinary sense,
is freely disseminated to students as a matter of course.
The
courts have not ignored this problem, and, indeed, they have taken
measures to solve it.
Perhaps the greatest of these is in the
area of what constitutes publication.
As was seen in the decision
in the Wheaton case, an author at common law retains his copyright
10
despite publication if he had been unlawfully deprived of his
manuscript, or if a copy of it had been improperly obtained.
Therefore, although the author's work might have been widely
printed and distributed, if it were not the result of an authorized
publication, the author lost no rights thereby.
This is just one
way the courts have ameliorated the harsh effect rigid interpretation of the term "publication" would bring in the area of common
law copyright, and it is a principle that obtains today.
v. EARLY RECOGNITION OF TEACHER'S COMMON LAW
COPYRIGHT
More to the point, however, is the case of Bartlette v. Crittenden.
27
Bartlette had developed a system of bookkeeping, which
he taught in Cincinnati and other towns.
As an aid to his stu-
dents, he placed on cards the system he taught and permitted the
students to make copies.
Crittenden, a student at the school in
St. Louis, copied the cards, and later attempted to publish them
in Philadelphia.
When Bartlette learned of this, he brought
suit ~
against Crittenden, asking 1 hat an injup~ion issue to restrain
the publication .
The case was heard by Justice John McLean, the
author of the Wheaton opinion, sitting as Circuit Justice.
Jus-
tice McLean followed the cout se he had charted in Wheaton, and
held in favor of Bartlette.
In so doing, he set out a source of
protection for the teacher which was later to be known as the concept of "limited publication . "
The students of Bartlett, who made these copies, have
a right to them and to their use as originallY intended.
But they have no right to a use which was not in the
contemplation of (Bartlette) and of themselves, when
the consent was first given. 28
11
and so, the rights of the teacher remain intact despite the revelation to the students and despite the unauthorized publication.
Justice McLean then proceeded to outline some of the principles
involved in the concept of limited publication and the rights of
the parties involved.
Popular lectures may be taken down verbatim, and the
person taking them down has a right to their use·. He
may in this way perpetuate the instruction he receives,
but he may not print them. The lecturer designed to
instruct his hearers, and not the public at large.
Any use, therefore, of the lectures, which should
operate injuriously to the lecturer, would be a fraud
upon him for which the law would give redress. He
can not claim a vested right in the ideas he communicates, but the words and sentences in which they
are clothed belong to him. 29
Thus, to mitigate against the rule that publication divests
common law
cop~right,
limited publication.
the courts have formulated the concept of
But, this does not solve all the problems
of the teacher who wishes to make a limited disclosure of his work
for the purposes of education.
For there is always the question
of how limited the publication must be. 30 There are no hard and
.,
fast guidelines for this, but
, there is general agreement among the
courts that in order to qua~ify for protebtion by limited publication, an author Cmust restrict his publication in two ways:
first,
the audience itself must be limited; and secondly, the purpose for
i
which the material is disclosed must be limited. 3l Using these
basic rules, the courts, on a case-by-case basis, have fashioned
protection for the author.
In the case of King v. Mr. Maestro, Inc.,32 the court held
that even though Dr. Martin Luther King had delivered his famous
speech "I Have A Dream" to a crowd of more than 200,000 persons,
and had distributed press releases concerning the content .of the
12
speech, he nonetheless had made only a limited publication, and
was entitled to protect his copyright in the speech.
This case
rests partially on a doctrine announced in Ferris v. Frohman,33
that oral delivery of such works as plays and speeches does not
amount to a publication of them.
Thus, Dr. King's speech to the
crowd was not a publication, the court found, and his disclosures
to the press were made in such a manner that they could be said to
be limited both as to audience and to purpose.
Unless both the audience and the purpose are restricted, the
author's rights will be lost.
mell,
34
Such was the case in White v. Kim-
where only a small group of people were interested in read-
ing the work in question, but the author made it a practice to give
out copies to anyone who asked.
The author did restrict the use
to which the copies could be put, but without restricting the
distribution as well, he
wa~divested
of his common law copyright.
Although Justice MCLearl, in Bartlette v. Crittenden, spoke of
the intent of the author in his treatment of limited publication,
.,
it should be clear from the White ' case that the intention of the
author to make only a limited publication" is not controlling.
Yet, in one sense the author's intent is impqrtant.
That is, the
author must "intend to perform the acts which constitute publication, although whether he intends to dedicate to the public is
irrelevant.,,35
VI.
CURRENT TREND IN TEACHER'S COMMON LAW COPYRIGHT
The most recent case involving the teacher's common law copyright is Williams v. Weisser. 36
The defendant Weisser operated a
business in California which published and sold class lectures
13
given by members of the faculty at U. C. L. A.
Williams was an
Assistant Professor at that school in the Anthropology Department.
In 1965, Weisser paid a student to attend Williams' classes and
take down the lectures presented.
These lectures were then typed
up, and Weisser sold them to students with his own copyright notice
on them.
At trial and upon appeal, Weisser argued that since Williams
was employed by U. C. L. A. for the purpose of giving lectures,
any copyright there might be in them belonged to the University
and not to Williams.
There is a certain amount of authority for
that proposition, and as one writer puts it,
Subject to (an agreement between the parties to the
contrary), it is an accepted principle of both statutory and common law that the emp lo er is deemed to be
the author of works made for hire. 7
1
Had this view been adopted by the California courts, Williams would
have had to show either an agreement between him and the University
as of the beginning of his employment that copyright in his lectures remained in him, or show an assignment by U. C. L. A. to him
of the copyright.
This was not
necessa~~,
-however, for Judge Kaus,
,
speaking for the appellate court, held " ••• in the absence of evidence (to the contrary) the teacher, rather than the university,
owns the common law copyrig1 t in his lectures.,,3S
It is generally recognized that in order to claim a work was
"made for hire" one must find a right in the employer to direct
and supervise the manner in which the writer-employee performs
his work.
If the University had a right to direct and supervise
Williams' work, there would be doubt as to Williams' copyright.
The court met this problem in saying, .
14
A university's obligation to its students is to make
the subject matter covered by a course available for
study by various methods, including classroom presentation.
It is not obligated to present the subject
by means of any particular expression. As far as the
teacher is concerned, neither the record in this case
nor any custom known to us suggests that the university
can prescribe his wa~ of expressing the ideas -he puts
before his students. 9
Thus, the absence of control by the University over the methods of
the teacher negates the application of the "work for hire"
doctrine.
Having firmly established that the copyright in the lectures
resided in the teacher, the court then turned its attention to the
possibility that the copyright had been divested by publication.
Judge Kaus recognized that in the United States there exist two
theories on publication by lecture:
the first, that the lecture
does not amount to a publication (as in Ferris v. Frohman), and
the second, that even if it did amount to publication, it was
limited as to audience and purpose (as in King v. Mr. Maestro, Inc.).
The court said,
Under either view the oral delivery of lectures did
not divest plaintiff of his common ' law copyright to
his lectures. Nothing tangible was delivered to the
students and every case that has considered the
problem of divestment from the limited versus the
general publication point of view has reached the
conclusion that the giving of a lecture is not a
general publication. 40 /
Therefore, Williams' copyright had not been divested.
Neither the
reading of his lectures to students nor the distribution of pre!
pared material would destroy his copyright so long as he made only
a limited publication.
38
Judgment was affirmed in favor of
Williams in the amount of $1500.
Williams v. Weisser is a strong case for teacher's common law
copyright.
But the limits of the decision should be noted.
First,
15
the court specifically held that the University did not exercise
enough control over Williams to bring his lectures under the "work
for hire" doctrine.
It is pdssible that, given a different aca-
demic atmosphere in which greater control is exercised, the teacher's lectures might be viewed as products of an employment for the
specific purpose of preparing such
ma~erial.
Thus, Williams could
be of no help to a teacher if the court finds the "work for hire"
doctrine applicable.
Secondly, as was mentioned above, the common law copyright in
unpublished works is a right whose recognition depends upon state
law.
This is the essence of section 2 of the Copyright Act.
The
Williams case was decided in California, and it is binding upon
California courts.
But there is no guarantee that the same result
~ill obtain in other states. 41
As a further consideration, the teacher's contract of employ~ent
or the school's official policy toward copyright must not be
pverlooked, for as is sometimes the case, the employer will insert
provisions whereby the teacher relinquishes all copyright to the
• •
" "
school, or agrees to assign to the school
such copyright in the
future.
VII.
i
RESTRICTIONS ON TEACHERS' COMMON LAW COPYRIGHT
An employment contract can, by its terms, alter the common
law rights of the teacher with respect to material prepared during
the period of employment .
The standardization of such provisions
makes it rather difficult for the teacher to retain copyright to
his work.
But the teacher needs also to be aware that not all
16
scholastic regulation of copyright is revealed in the employment
contract.
General policy statements of the school can have the
effect of discreetly regulat i ng the teacher's rights, without giving much notice to those affected.
An illustrative case is the copyright policy followed at Texas
Tech University.
The standard form contract for faculty appoint-
ment discloses no regulation of copyright of a teacher's work.
It
is merely a collecting' place for personal data and administrative
information.
The actual regulation is found in the huge Operating
Systems and Procedures Manual of Texas Tech University.
Presum-
ably, if one knew the proper questions to ask and the proper persons of whom to ask them, one could discover the location of the
copyright provisions therein contained.
But it is not the usual
policy of those in charge of hiring faculty members to discuss the
University's copyright policy with prospective appointees.
The
new teacher is hired without being completely apprised of the conmomitant loss of common law rights.
In order that the reader understand the policy being discussed,
it is fully set forth below.
Copyright Policy
It is recognized that specialized knowledge and skill
of faculty, staff and other employees and personnel of
the University shall from time to time result in material
that shall merit copyright and publication.
It is the
policy of the Board of Regents that such endeavors shall
be encouraged and that the following rules shall be applicable to the University and all of the above described
personnel:
1.
All such materials for copyright and publication
developed by said personnel outside of their
regular and special duties with the University
and not at the expense of the University and on
their own time shall be the property of such
individual developing the mate r ial.
17
2.
All such materials for copyright and publication
developed by said personnel within their contractual obl·igations to the University or at the
expense of the University shall be the property
of the University.
3.
Personnel assigned to participate in contract or
grant research shall be obligated to abide by
all contractual agreements on copyrightable material with the sponsor as a condition of employment on such grants and contracts as may be
required by the sponsors of such research.
When required, such personnel shall agree to
execute necessary instruments to effect such
terms and conditions.
4.
When a determination is needed regarding divisible interest in copyrightable material that
was produced partially by said personnel outside
their regular and special duties with the University and partially in the performance of
their duties with the University or while on
research assignment, then they shall be required
to submit to a three-man faculty and staff
. committee appointed by the President, records,
statements, and facts to substantiate such partial personal services. The Committee shall
evaluate such material submitted to them and
make their recommendation to the President for
the establishing of percentage of ownership.
If research contractual rights are involved,
the acceptance of division of ownership by the
sponsor shall be required. The President shall
then forward to the Board of Regents the recommendation of his committee, his recommendation and
the statement of the sponsor if applicable. The
Board of Regents shall make the final division
of ownership. If the individual or individuals
submitting the request for partial ownership is
dissatisfied with the determination of the Board
of Regents, he shall, in writing, submit to the
President his objections to such determination
in detail by mailing the same to the President
at least ten days prior to the next official
Board meeting. The Board of Regents shall consider the written objections to their determination and reply in writing to the individual or
individuals objections.
5.
OWnership of copyrightable interest by the University in material shall in no way obligate
the University to publish or bear the expense
of publication of any material.
18
Leaping over the introductory statements and the superfluous
first enumerated paragraph,43
the reader will find the heart of
the regulation contained in paragraphs 2 and 3.
The second paragraph is almost a restatement of the "work for
hire" doctrine which was discussed in the Williams case.
If the
preparation of a claimed work is within the contractual obligation
of the teacher to produce such work, or if the production of the
work was "at the expense of the University," then the University
will claim copyright therein.
The California court in Williams announced that a University
has no right, generally, to direct the manner in which a teacher
presents class material.
If this line of thought were followed
in Texas, it would be difficult to say in which circumstances a
teacher would be contractually obligated to produce copyrightable
material <outside of material covered by paragraph 3, discussed
below).
This presents a problem of factual determination.
Another difficulty lies in deciding in which instances a
.,
teacher's work was produced "at the expense of the University."
This must logically go beyond the questio~ of salary, because that
aspect would better fit the category of a contractual obligation,
discussed above.
Some difficult "gray areas" might be these:
a
teacher types an independently researched and written manuscript
using a machine purchased by the University for University use
only; a teacher . researches material for a manuscript using the
University library facilities, paid for by University funds; a
teacher enlists the aid of the office secretary in organizing an
independently written manuscript during office hours.
Each in-
stance inVOlves some expense on the part of the University, but
19
the question is whether they are expenses within the meaning of
paragraph 2.
The third paragraph is less ambiguous than the second.
It
simply states that the teacher is bound to observe this policy as
,
a condition of employment whenever contract or research grants are
involved.
There is little doubt that a literary production brought
to completion by means of a research grant comes within the purview
of the "work for hire"doctrine.
~he
The goal of the arrangement is
literary product itself, and monies are expended for that end.
In the event that a teacher-researcher has acquired in his own
name statutory copyright of the work produced, the final sentence
of the paragraph gives the University the prerogative of demanding
assignment of such right in the name of the University.
, In an attempt to solve some ' of the "gray area" problems which
eould arise under paragraph 2, the University has provided in
parag,raph 4 for an arbitration panel to determine percentage ownership ~heneverthe interests of the teacher and the school are in
competition.
.,
One should note that this is a sort of trial by
one's 'peers on the issues of contractual bbligation and University
expense.
But the ' appointed panel's decision is not binding, it is
merely advisory.
The final determination of divisible ,interest is
made by the Board of Regents.
There is a limited right of appeal
for rehearing in case the teacher is dissatisfied with the outcome.
The final provision of the copyright policy further stacks
the deck in favor of the University by reserving to it the privilege of refraining from ' publication of any material, whose copyright it controls.
20
Although these provisions constitute the official copyright
policy at Texas Tech University, there is an unofficial policy,
which is less rigid than the written policy, and is more often
followed .
Simply stated, unless the University stands to realize
substantial benefit from ownership of the copyright to work produced by one of its teachers, the teacher's rights in the work are
seldom disputed.
It would, indeed, create a harsh academic atmos-
phere for the University to attempt to strictly enforce its announced policy.
And the likely effect of strict enforcement would
be an eventual curtailment of research activity.
It comports more
nearly with the University's proclaimed goal of encouraging academic research and preparation of extra material for classroom use
to observe leniency in the enforcement of its copyright policy.
VIII.
CONCLUSION
The courts have not been unmindful of the teacher and his
rights in the products of his creativity.
v. Crittenden, it has been
recogn~zed
Beginning with Bartlette
that disclosures for the
.
purpose of education are not to be treatea as divesting copyright
in the work disclosed.
Through the years, the courts have brought
into focus the doctrine of limited publication, and have been able
to give broad guidelines for protection under this concept .
I
In order to qualify as a limited publication, the disclosure
must be limited as to audience and to purpose .
other spells divestment of copyright.
One without the
To give out even one copy
without restriction amounts to a general publication.
But as was
shown in King v . Mr . Maestro , Inc. , it is possible to reveal one's
work to the press and to perform it before 200,000 people and yet
21
retain the copyright therein.
The intent of the author to make a limited publication is not
controlling; the courts will look only to whether the author voluntarily intended to perform the acts which constituted the publication.
But this information should not unduly dishearten the teacher
seeking to protect his work by common law copyright.
The major
portion of disclosures -made by- teacher to student fits well within
the protection afforded by common law.
The fact -that the lecture
or distribution is made before an audience comprised totally of
one's students should be enough to satisfy the limited audience
requirement.
For if the American press is a limited audience, as
in the King case, there is no reason why an audience of even 100
students would not be limited as well.
And, by the same token,
the common understanding that the material is given out for the
purpose of enhancing -the student's comprehension of the subject
taught should satisfy the requirement of limited purpose.
.,
But, if someone is still concerned about the possible forfeiture of copyright, there are further "steps which can be taken
to put to rest these fears.
Whenever material is prepared for
class distribution, the teacher can simply include a short statement somewhere in the papers to the effect that they have been
prepared exclusively for the use of the students in the class
being taught, and that the teacher expressly reserves all rights
in the material presented.
As to oral presentation, the principle
of Ferris v. Frohman, that performance is not publication, should
be adequate protection.
However, the same express reservation of
rights as used with written material could be repeated before
22
beginning the presentation.
It is not the policy of the law to trap the unwary in finely
spun technicalities, or to actively
to ignorance of legal requirements.
se~k
forfeiture of rights due
But there must be objective
standards by which society can gauge its conduct and to which it
can look for protection of its rights.
It is not too great a de-
mand that the law makes on us to follow the few requirements for
the preservation of common law copyright.
And with a better aware-
ness of those requirements, authors can increase the enjoyment that
they themselves, as well as the public, take in their writings.
23
NOTES
1.
How the copyright monopoly is limited will be developed below.
To say that copyright resides in the author is not to deny the
transferability or copyright, which is specifically provided for
in the Copyright Act, 17 U.S.C. 8827-32.
2.
The Federalist No. 43 (Madison).
3.
Id.
4.
17 U.S.C. 82.
5.
Whenever this paper speaks of authors and common law copy-
right, it is done with the teacher in mind.
special connotation in copyright law.
"Author" has no
It means simply "originator"
or "he to whom anything owes its origin."
Burrow-Giles Litho-
graphic Co. v. Sarony, 111 U.S. 53, 58 (1884).
6.
17 U.S.C. ~l.
7.
L. Amdur, Copyright Law and Practice 37 (1936);
Howell's Copyright Law 112 (rev. ed. A. ·· L'atman 1962).
~
also
Despite these
many rights, ., one author · has expressed the view that the term "common law copyright" is a misnomer because the exclusive right to
make copies arises only upon securing statutory copyright .
H.
Finkelstein, review of S. Ladas, The International Protection of
Literary and Artistic Property Including Copyright in the United
States, 48 Yale L.J. 712, 713 (1939) • . This view fails to take
into account the doctrine of limited publication which allows the
author at common law to copy and disseminate his work, within
certain limitations, and yet retain the full measure of his common
24
law rights.
8.
This will be discussed more completely below.
Statutory copyright can be lost by publication without proper
copyright notice. 17 U.S.C. 8810, 19-21.
Common law copyright can
be lost by making a general publication.
9.
17 U.S.C. 812 provides statutory protection for works which
are not reproduced for sale.
Except for this section, the protec-
tion granted by the Copyright Act is exclusively for published
material.
10.
G. Rice, Law For the Public Speaker 59 (1958).
11.
6 W. Holdsworth, A History of English Law 362 (1924), herein-
after cited as Holdsworth.
12.
L. Patterson, Copyright in Historical Perspective 5-6 (1969),
hereinafter cited as Patterson.
13.
H. Ransom, The First Copyright Statute 7 (1956), hereinafter
cited as Ransom.
14.
6 Holdsworth, at 372.
15.
6 Holdsworth, at 372, gives the following in regard to the
Licensing Act:
"It was revived again for seven years in 1685."
That would place the expiration date at·' 1'692 instead of 1694.
But
the Act which provided the seven-year extension had this clause:
" .•. and continue in force from the four and twentieth day of June,
in the year of our Lord one thousand six hundred eighty five , for
the space of seven years, and from thence to the end of the next
session of parliament."
1 James II, c. 17 S15 (emphasis supplied).
This, perhaps, accounts for the discrepancy between Holdsworth's
ihformation and the date usually given as the expiration of the
Licensing Act.
16.
Patterson, at 9.
25
17.
8 Anne c. 19.
of Anne at 1710.
Scholars now date the passage of the Statute
Ransom gives this reason:
"Legal documents con-
cerning the Act bear the face date of 1709 because the law was
introduced, amended, and passed before March 25, the date on which
the year was then customarily changed in many official records."
Ransom, at 6.
So by modern reckoning the Act 'was 'passed ,in 1710.
18.
This term is used in Patterson.
19.
4 Burr. 2303.
20.
4 Burr. 2408.
21.
33 U.S. 591 (1834).
22.
For two well-written looks at the personalities behind this
case see E. Baker, Henry Wheaton 1785-1848 124-133 (1937), and
F. Hicks, Men and Books Famous 'in: the Law 190-235 (1921).
23.
33 U.S. 591, 656.
24.
Id. at 667.
25.
Id. at 668.
26.
The principle underlying this part of the decision is that
judicial opinions are, by their nature, part of the public domain,
and no one may maintain copyright in any work in the public domain.
This concept is recognized in the Copyright Act, 17 U.S.C. 88.
That an author may have copyright in new mat'ter compiled with
material in the public domain is recognized at 17 U.S.C. 87.
27.
2 F. Cas. 981 (No. 1,082) (D. Ohio 1847).
For sUbsequent
litigation between the same parties on this issue see 2 F. Cas. 967
(No. 1,076)
(D.
Ohio 1849) •
28.
2 F. Cas. 982.
29.
Id.
30.
The term "pUblication" is nowhere defined in the Copyright
26
Act.
The Universal Copyright Convention, however, gives the defi-
nition as "the reproduction in tangible form and the general
distribution to the public 'of copies of a work from which it can
be read or visually perceived."
Universal Copyright Convention,
Article VI.
31.
E. Drone, A Treatise on the Law of Property in Intellectual
Productions 104 (1879):
~
also M. Nimmer, Nimmer on Copyright
§58.1 at 225 (1974), hereinafter cited as Nimmer.
32.
224 F. Supp. 101 (S.D.N. Y. 1963).
33.
223 U.S. 424 (1912).
The principle of Ferris, rooted in the
common law, was changed in England by statute.
5 & 6 Vict., c. 45 820.
3 & 4 Wm. IV, c. 15:
Thus, in England, performance , is publica-
tion ~,
34. :193 F.2d 744 (9th Cir. 1952).
35.
Nimmer 858.3 at 229.
36.
'273 Cal. App. 2d 726, 78 Cal. Rptr. 542 (1971).
'37.
Nimmer !i62.2 at 238.2.
pizes that "the word
I
Also, the Copyright Act 1126 recog-
author' sha'll include an employer in the
case of works made for hire."
38.
78 Cal. Rptr. 542, 546.
See also Note, . Copyright--Works for
Hire--Common Law Copyright in Lectures with 'Professor rather than
with University, 45 N.Y.U. L. Rev. 595 (1970).
39.
78 Cal. Rptr. 542, 546.
40.
Id. at 550.
41.
The positive law and judicial judgments of a foreign state
sometimes must be followed by other states pursuant to the Full
Faith and Credit Clause of the Constitution and state choice of
law statutes.
But a thorough discussion of the principles
27
involved in choice of law with regard to copyright is beyond the
scope of this paper.
42.
This copyright policy springs from the Board of Directors
Policy Statement, 1964, adopted by the Board of Regents, Texas Tech
University, September, 1970.
Operating Systems and Procedures
Manual of Texas Tech University, at B-8.l8.
43.
It is superfluous because it gives the teacher nothing he does
not already
have.
,
Perhaps it was included out of a desire for
symme't ry or to buffer the effect of ,the , pro-University provisions.