Captain Copyright – A Canadian Creation.
So I’m thinking about whether it is legal and/or advisable to sell my old 1L outlines to the hoard of current 1Ls that would undoubtedly pay dollars for a customized outline. There was a service called TakeNote @ Cornell that produced custom class notes on red paper, designed to foil would-be photocopiers. (They hired TAs to take notes during that class that you undoubtedly skipped because of your subscription to Takenote Example of Intro to Wines TakeNote).
So I ask – Would be infringing upon a professor’s copyright?
The concept of copyrighting a lecture (technically, a live performance) was briefly addressed in my copyright class. Additionally, an excellent law review titled “Note: ‘Profiting At My Expense’: An Analysis of the Commercialization of Professors’ Lecture Notes” by Ashley T. Barnett – 9 J. Intell. Prop. L. 137 (Fall 2001) discusses the issue of commercial note-taking services, advocating that additional protections should be adopted.
Does federal copyright law prevent a commercial note service from copying a lecture delivered by a professor? The answer is: it depends. The legality of buying and selling lecture notes or of posting lecture notes on the Internet seems to be a gray area of the law. In essence, the answer to this question depends on the lecture meeting the fixation requirement, ownership of the lecture, and the nature of the lecture . . . .
[For protection to be afforded federal copyright law requires a] Modicum of Originality and Fixation in a Tangible Medium of Expression. . . . In regard to originality, courts have set a very low standard to meet this criterion. . . .
To the extent that a speech, lecture, or other vocal performance is not reduced to tangible form, it is outside the scope of the 1976 Copyright Act. Protection exists if the author reduces the lecture to writing or to any tangible form (i.e. a recording), before the lecture is given.
9 J. Intell. Prop. L. 137, 147-53.
So a continuum is established between a completely fixed and pre-written professor’s speech (protected) and a completely improvised live speech (unprotected). Often, however, professors will have pre-written outlines or case notes and lecture based on that general framework. Ms. Barnett provides an example -
a history professor may outline his lecture in the chronology of the events that led up to World War II, and then add his own personal experiences during the delivery of the lecture. If the written portions of the lecture meet the other requirements of copyrightability, then the lecture will probably be considered fixed to the extent that it is written down.
1.2.3.4. – You can’t copyright facts?
Feist has declared, however, that you can’t copyright facts.
Feist Publications v. Rural Telephone Service Co., 499 U.S. 340 (1991), that is.
Feist dealt with the whether a company (Rural) properly had a copyright in their telephone white pages. For more check out this fact summary from Oyez. In a clear and well-reasoned opinion, Justice O’Connor taught us that “The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author.” And while the Court recognized that the white pages were theoretically copyrightable, properly categorized under the “compilations” standard of Section 103 of the Copyright Act of 1976, Rural’s white pages was not sufficiently original to merit protection mainly because they just listed the names, addresses and telephone numbers in alphabetical order. There was not even a “modicum of originality.”
The Court also made clear that the facts and ideas can never be copyrighted. This is the idea/expression dichotomy that is central to copyright law (basically, ideas ? ©, expression = ©). In Feist, the names/addresses/telephone numbers do not “owe their origin” to the white pages publisher; that is, they were “discovered” and not “created.” So this information is deemed a fact, and not the subject of copyright.
History provides the most clear example of a fact – dates/times/events ect. Analogizing to the outline context, it’s clear that a professor cannot have a copyright in the substance of caselaw. What is a “fact” in the legal context. In other academic contexts, like biology or history, the definition is simple. But often the interpretations of a holding or application to analogous situations depends upon the individual professor’s expression. And copyright is designed to protect expression. The line becomes blurry very fast, and I certainly don’t have any answers to these questions, but they seem worth considering.
What About The Other Stuff?
But I said before that the white pages were theoretically copyrightable? A “compilation” is defined in Section 101 as “a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term “compilation” includes collective works.” So the “preexisting material” is the white pages data and the ‘legal facts.’ The white pages and the professor’s creative expression of selection/coordination/arrangement is protectable.
The Feist Court broke down the statutory text for us, and highlighted the importance of #2 in its analysis.
The statute identifies three distinct elements, and requires each to be met for a work to qualify as a copyrightable compilation: (1) the collection and assembly of preexisting material, facts, or data; (2) the selection, coordination, or arrangement of those materials; and (3) the creation, by virtue of the particular selection, coordination, or arrangement, of an “original” work of authorship.
The expression, aka layout in alphabetical form, of the white pages was not given protection because it was insufficiently creative, failing to meet a very low bar. I would guess that most professor’s lectures are original enough to meet the statutory definition, and they are the work of independent creation (they have not been “copied”). Additionally, a compilation is not required to be a collection of copyrightable works. The statutory text’s inclusion of “facts” and “data” make it clear that a copyright can exist in a compilation of information that is itself non-copyrightable.
Some Concluding Thoughts
Recognize that there are two distinct questions involved in my outline-selling problem. First, whether a copyright can/does exist in a professor’s lecture. The primary issues involved here are sufficient fixation, and defining the scope of the protected expression. I think we’ve answered to the extent that the professor’s expression is protected to a limited extent. This protection, however, would likely be described as thin protection, which might only protect the work from verbatim copying.
Second, whether the commercial use of my outline constitutes infringement of the professor’s copyright. The primary issues involved here are include the similarity between my outline and the professor’s lecture/live performance, the extent that I incorporate the professor’s expression verbatim, and defining where the protected expression ends and my expression, in processing lecture and turning it into notes, begins. There’s also the problem (which I purposefully haven’t dealt with) regarding the scope of copyright protection in a law textbook or commercial outline.
I think that to the extent that I am reproducing my professor’s expression verbatim (which I do when I transcribe lecture) is protected. As is often the case, however, the scope of a person’s copyright is not clearly delineated until an infringement lawsuit is brought. So you don’t really know what you have.
Additional considerations include whether my professors would have a problem with it? A quick survey suggests that the answer is “no” but “that doesn’t mean I’m endorsing it. Advice includes “watch out for public outcry or backlash” and “don’t break any other laws” (tax/university policy), but it appears to be permitted by the PSU Honor Code.
Faulkner Press v. Class Notes – (Filed Apr. 1, 2008 in N.D. Fla.)
Hat tip to Professor Brian Holland for alerting me to this lawsuit. On April 1, 2008, the Gainesville Sun reported:
In a potentially far-reaching lawsuit that aims to establish whether university professors own the lectures they give in class, a locally-based press is suing a student note-taking service.
The lawsuit, filed in Gainesville’s federal court, claims that Class Notes violated copyright laws by hiring students to take notes on the lectures of Michael Moulton, an associate professor of wildlife ecology and conservation, and then selling those notes for profit. The suit further alleges that Class Notes reprinted test questions that appeared in a textbook authored by Moulton and published by Faulkner Press.
Faulkner Press, which publishes books authored by numerous UF professors, filed a lawsuit Tuesday against Class Notes, the parent-company of Einstein’s Notes.
The suit alleges that Class Notes republished and profited from lecture notes that belonged to a UF associate professor, in addition to republishing copyrighted practice questions that appeared in a book authored by the faculty member and published by Faulkner.
“This case is aimed at establishing that it is not OK to repackage and market for profit intellectual property belonging to professors without their permission,” said Jim Sullivan, an attorney representing Faulkner Press.
Also see this Wired Blog Article & The Future of HigherEd – lawsuit info from Plaintiff Faulkner Press, copy of the Complaint, Defendant’s Study Aid Website.
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{ 1 comment… read it below or add one }
Nice work Mr. S.
Please be aware that Ashley T. Barnett in the “Note: ‘Profiting At My Expense’: An Analysis of the Commercialization of Professors’ Lecture Notes” has incorrectly reported the holding of the so-called “A+ Notes” case.
“The court granted summary judgment to the publisher on the copyright claim, reasoning that the statements in the lecture could be characterized as facts or ideas that do not belong to anyone.”
In fact, the opposite is the case. Please see Judge Maurice Paul’s Order dated 07/08/92.
With regards to copyright, the appellate opinion in that matter (which Barnett cites) holds (without comment) only that the evidence presented was competent to support the jury’s verdict.