The Professor Exception and Work Made for Hire

A minor puzzle in copyright, but one of interest to faculty, is the continuing vitality of the so-called “professor exception” to the work made for hire rule. In a nutshell, the 1976 Copyright Act gives copyright to the employer for any work prepared by an employee within the scope of his or her employment. Traditionally, professors have retained copyright to their works – particularly their scholarly books and articles. But, if professors are employees of universities and they are expected to write, how does this traditional retention of copyright survive?

I am wondering if the answer lies in a nuanced understanding of the agency test promulgated by the Supreme Court in CCNV v. Reid. In particular, no one considers a professor the agent of her university when writing scholarship. If I say something outrageous in one my articles, people do not think that I speak on behalf of Boston College, nor would anyone expect to hold the university responsible for what I say. Thus, while a professor is an employee of the university in a payroll sense, he is not the university’s agent for purposes of the work made for hire doctrine because he does not write as the university’s agent.

Contrast this with how people would understand things if I were to say something outrageous in an exam I give to my students, or if I were to act inappropriately in class. In those situations, I think people would correctly understand that I am acting on Boston College’s behalf. If I committed a tort against students in those contexts (intentional infliction of emotional distress?), students would reasonably expect recourse against the university. However, to make the point again, people do not expect recourse against the university if I libel someone in my articles.

It occurs to me that this distinction may help sort out some of the tricky issues surrounding materials authored by professors for distance learning or other web-related content. In those cases (perhaps material for a branded distance learning course) where the professor is truly creating material on behalf of the university, copyright goes to the university under the agency test. In other cases where the professor writes for himself, copyright stays with the professor. Of course, contracts or other employment policies could alter this outcome. Thoughts?

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5 Responses

  1. Eric Goldman says:

    Fred, three comments:

    1) I haven’t researched this, but why couldn’t a plaintiff libeled in an article sue the university employing the professor?

    Perhaps copyright is even clearer. If a faculty member published an article that included wholesale copying of someone else’s work, I’m having a tough time imagining a robust defense for the university if the plaintiff sues it.

    2) Your agency definition leaves open the possibility that universities retain the copyright in professors’ lecture notes, powerpoint slides, exams, etc.–meaning that none of these would be recyclable if a professor changed institutions. This isn’t inconsistent with the statute, but I’m not sure how much your agency argument moves the ball forward for professors.

    3) Fortunately, I’m the beneficiary of having worked at two different institutions that both had copyright policies expressly allowing professors to retain the copyrights in all works other than those prepared in an administrative capacity (such as faculty committee work product). I think all of us would be better off if universities universally adopted this policy (or the statute was amended to codify the professor exception).

  2. Anon says:

    Copyright is small potato stuff. The real money for universities is in patents by their professors. Arguably, this makes sense since the university covers the physical space, lab equipment etc and provides the vehicle for endless research/lab assistants, grad students etc.

  3. mmmbeer says:

    The works made for hire doctrine relies principally on the agency law (as case law tells us). Barring an agreement to the contrary, if the work was created in the scope of your employment as a professor, it ought to be owned by the university. Reliance on some fluffy exception like the idea of a professor-exception is probably a bad idea.

    That said, a number of universities have explicit policies which state one way or the other. I believe that the default rule most universities fall back on with respect to intellectual property is: if it’s a patent (because of fear of its obligations under Bayh-Dole) we own it, otherwise you can have it.

    You can probably find out what your university’s policy is by flipping open the employee handbook (or opening it in a web browser) and going to the section entitled “Intellectual Property.”

  4. Alfred Yen says:

    Thanks for the comments. I agree with points 2 and 3 of Eric’s, and also agree that many universities have policies (including my university, Boston College, whose policy is similar to the one Eric describes). Even so, with respect to policies, the default rules matter because there will be universities without policies.

    I haven’t researched the point about libel either, but let me try out a couple of arguments. First, the answer is “We’re not liable because the professor didn’t act within the scope of his/her employment in writing scholarship. We hire her to teach, and we expect her to write, but we clearly don’t expect her to write on our behalf.” A law firm expects associates to engage in professional development or CLE to better themselves, but I don’t think that makes the law firm liable for things the associate might do during those activities.

    Second, suppose a professor commits plagiarism – something that does happen. Has the university become liable, morally responsible, etc? Not in the way that FedEx is liable or morally responsible if one of their employees runs a stop sign and hits a pedestrian.

    So, I estimate that there is some distance between the university and its professors on scholarship. But maybe I’m wrong.

  5. Thomas Wells says:

    First,we kill all the lawyers…