SCOOP: When Your Words are Your Work, Understanding the Work for Hire Doctrine

One of the often-misunderstood provisions of the U.S. Copyright Act is the copyright status of “works made for hire.” Under ordinary application of copyright law, a creator of a work satisfying the statutory criteria of copyrightability is entitled to all rights as copyright holder. However, § 101 of the Copyright Act in defining a “work made for hire” states that works created by an employee within the scope of his or her employment are owned by the employer. Further, § 201(b) of the Copyright Act presumes that the employer is the copyright owner of a work made for hire unless there is a written agreement otherwise.

Teacher Exception

Out of customary practice that has existed since the Copyright Act of 1909 and through language in judicial dicta interpreting copyright law after enactment in 1976 of the current copyright law, a “teacher exception” to the works for hire presumption has persisted. Under this exception born of practice and not of statutory or judicial law, works created by teachers, including scholarship written by college faculty, have been generally treated as belonging to the employee even where there was institutional expectation of such scholarly productivity. Further, most colleges and universities have codified the “teacher exception” into their intellectual property policies as a means of satisfying the § 201(b) requirement of a written agreement by declaring that scholarly works and traditional teaching outputs such as lecture notes of faculty are the property of the individual faculty members who created them. However, a 1989 U.S. Supreme Court Case (Community for Creative Non-Violence v. Reid) that set forth a test for defining an employee as well as an evolution in the way that course materials are designed and delivered, particularly to support online education, has challenged traditional presumptions about the teacher exception.

Reconsideration of the Teacher Exception: Online Course Materials

As stated above, institutional intellectual property policies attempt to counter the works made for hire presumption by disclaiming copyright ownership in faculty scholarship. However, these same agreements usually carve out exceptions for inventions and other patentable or monetizable intellectual property, declaring these to be the property of the employing institution. And recently, these policies are also being amended to also include exceptions for materials produced to support online education, whether it be for credit-bearing online courses offered to enrolled students or Massive Open Online Courses (MOOC) that are offered by the institution to a global citizen-student body. Because of the extensive institutional resources (e.g., videography studios, software, instructional designers, etc.) that are required to produce these online course materials, the college or university seeks to recoup its investment by securing a license to reuse those materials in the event the faculty member or teacher leaves the institution.

What About Sermons?

A common “works for hire” question raised by theological librarians and the communities they serve concerns the copyright status of sermons. Under the definition of “works made for hire,” sermons would be the intellectual property of the church where the writing and delivering of sermons is part of the pastor’s job description and there is not an agreement between the two parties stating otherwise. This is the case even if those sermons are composed at home or outside of “normal” working hours.

Complexities arise where the sermons are spontaneous and not written down, recorded or otherwise “fixed in a tangible medium of expression” – a requirement of copyrightability. Additional complexities arise when a pastor wishes to compose her sermons into a published book; without copyright ownership, the pastor would not be permitted to do so without the permission of their employing church.

Finally, some tax lawyers have also argued that by transferring copyright ownership to a pastor, a church risks its IRS status under § 501(c)(3) of the tax code on account of it being an inurement of its assets, intellectual property being considered an asset. However, most colleges and universities also hold non-profit status under § 501(c)(3) and the teacher exception and intellectual property policies that have been crafted to overcome the presumption of faculty works being categorized as works for hire has never been raised as a challenge to their non-profit status on these grounds.

Further Reading

• Circular 9 from the U.S. Copyright Office details the statutory language and judicial interpretation of the “Works Made for Hire” doctrine. https://www.copyright.gov/circs/circ09.pdf
• Brief article with examples from the Chronicle of Higher Education: “What’s a Work for Hire and Why Should You Care?” https://www.chronicle.com/article/Whats-a-Work-for-Hire-and/150333
• University of Kansas library dean and copyright expert Kevin Smith reviews the work for hire doctrine in chapter 3 of his book Owning and Using Scholarship, available open access from ALA at http://www.ala.org/acrl/sites/ala.org.acrl/files/content/publications/booksanddigitalresources/digital/9780838987483_copyright_OA.pdf
• From Christianity Today (subscription required or also accessible through AtlaSerials^®), “Who owns sermons” looks at all the legal issues impacting copyright ownership of sermons, including the impact the answer to this question has on a church’s IRS status. https://www.christianitytoday.com/ct/2014/january-february/who-owns-sermon-church-pastor.html

The SCOOP, Scholarly COmmunication and Open Publishing, is a monthly column published to inform Atla members of recent developments, new resources, or interesting stories from the realm of scholarly communication and open access publishing.