When Students Get Creative, Should Schools Own the Copyright?
December 18, 2019
As assigned projects become valuable as more than just demonstrations of learning, K–12 schools are starting to address the question of who owns the copyright to student-produced work.
The poster designed by your seventh-grader for her presentation on the woodlouse merits its place on the biology classroom wall — and then, perhaps, in the recycling bin.
Creative expression is crucial in the classroom as a way to engage a subject, to experiment with different learning processes, and to encourage creativity itself. In some cases, student-created work has more than just educational value; it may also be sufficiently marketable to merit an ultimate destination other than the recycling bin. Primary and secondary school students are creating publishable stories, code for mobile apps, and artwork for which there is incentive to claim copyright — that is, the right, for principle and for profit, to control reproduction and imitation of the work. And these students can indeed claim copyright, though depending on the school district, they may face some limitations.
Schools Consider Copyright Policies
In 2013, the school board for <a href="https://www.noodle.com/schools/md-prince-george-s-county-public-schools_district) drafted Prince George’s County Public Schools (PGCPS" target="_blank">policy language in Maryland for copyrightable works. This proposed that the school system would own works created by both teachers and students when made “specifically for use by" the district, an individual school, or a particular department, even if not on school property or during school hours.
The district took guidance in part from Title 17’s work-for-hire rule that gives an employer the rights to material created by employees in the scope of their employment. In the case of K–12 schools, rights would transfer to districts when teachers generated instructional materials or platforms — and students could be involved in the creation of these materials, even though they are not employees. The draft policy listed school websites and “other works created for classroom use and instruction" as examples of the types of works the school would own.
An article in the Washington Post indicated that the district did not intend a more expansive right to student schoolwork and art, and may have only intended product ownership — of a website, for example — rather than ownership of the copyright. The language was still thought to be worryingly broad, potentially enabling the district to derive financial gains from student work (even if that wasn’t its original intention), and the school board discarded it.
The scrapped policy attempted to address sticky areas of joint, commissioned, and student (versus employee) work that tend to arise more often at the graduate school level. At any level, however, copyright is a complicated issue, but the simple takeaway is that, thanks in part to project-based learning and the maker movement (among other innovative curricula), younger and younger students are doing technologically smart and artistically interesting work. Teenager Arjun Kumar, for example, has created several noteworthy apps, including Locatera, which recently won MIT’s App of the Month for Best Design award. Depending on whether or not such creations are produced with school materials and equipment, there is potential for students and schools alike to want to control, or share control, of its use.
There are times, however, when sharing is a problem. As reported by the <a href="http://www.splc.org/article/2015/10/texas-school-district-is-not-backing-down-from-asking-students-to-sign-over-the-copyright-to-their-work), a Texas high school student, who used to — and would still like to — take photographs of student activities and events for the school yearbook, is butting heads with the Lewisville Independent School District over copyright ownership of photos of other students taken with the school’s camera. That the student–photographer posted these photos online — and that families then wanted to purchase the photos — prompted the school to prepare an agreement asking students and parents to “release any claim of ownership to images taken of other students with equipment owned by the District," though the district's general copyright policy does affirm students that own the rights to their work. The release form may have served a different purpose entirely: that of protecting the school from violating the Student Press Law Center (FERPA" target="_blank">Family Education Rights and Privacy Act, which prohibits the unauthorized publication of a student’s image. Copyright, in other words, may have been a means to the end of student privacy compliance rather than an opportunity to profit from student work.
A Brief History of Copyright
In the United States, Title 17 of the U.S. Code governs copyrights, which can be claimed for original works given that a work is made with an element of creativity and is “fixed" in some form, meaning that it can be copied or viewed, heard, or used more than once. Artistic excellence is not a requirement to obtain copyright, and prodigy or not, a minor can indeed claim copyright ownership.
Registering a work with the U.S. Copyright Office is a good idea for those wishing to protect their work, and this step is required to bring a lawsuit for infringement in a U.S. court, but ownership rights arise as soon as a work is created, regardless of registration or even publication. The rights to an original painting completed by a 10-year-old at the kitchen table are, then, owned by the young painter as soon as she finishes the picture, though administering ownership of the work and any business around it is more complicated than if the artist were an 18-year-old.
The Future of Copyright in School
Generally, a minor student owns the copyright to original stories, songs, drawings, and other work — whether created at school, for homework, or at home and unrelated to school. Primary and secondary schools are typically careful to seek permission to use or display student work, often by having parents sign consent forms. Motivated mostly by wanting to stay on the right side of privacy laws, schools may not explicitly address issues of copyright ownership. Granting a school permission to use a student’s work for promotion of the school, for example, amounts to granting the school license to reproduce the work, though it does not relinquish a student’s right to publish the work elsewhere, unless the agreement states otherwise.
Complications arise, however, as the incidents concerning the districts in Maryland and Texas make clear, when schools have the potential to profit from student-produced work, when schools prohibit students from profiting from their own work, or when the rights of other students may be infringed upon when student work is reproduced.
By far, however, the most broadly applicable concern around copyright in an educational context (for the foreseeable future, at least) is teaching and practicing the fair use of other people’s work (the ability to copy part or all of a copyrighted work without permission, depending on several factors) and the value of creative expression — whether that is established when students make class websites, take high-quality marketable photos of school events, or create posters about woodlice for biology class.
Note: This article is not to be construed as legal advice. If you have questions about your child’s intellectual property rights, contact a local attorney.
You can use Noodle to learn more about schools near you. Ask a question on any school profile to find out what their policies are regarding student creative rights.
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