Legal Matters: January 2022
Although most classroom teachers use copyrighted materials when teaching, they may not fully understand the legal implications of using these resources. For instance, an English teacher might have her class discuss a short story copied from a book or a band teacher may distribute sheet music copied from a songbook. The school librarian may be keeping copies of an article or a book chapter behind the desk for students to check out as part of an assignment. These educators often mistakenly believe that they are exempt from copyright law because they are utilizing copyrighted materials for educational purposes. However, there are serious pitfalls and risks that educators face if they fail to recognize the limits of their right to use the copyrighted works of others.
A 2017 case, DynaStudy Inc. v. Houston Independent School District, serves as a reminder to educators who are tempted to ignore copyright concerns in planning and delivering lessons. In Houston, a high school principal purchased a few study guides and then made copies to distribute throughout the school district. At the bottom of the guide was the statement: “[c]opying this material is strictly prohibited.” When a teacher asked the principal via email about the copyright warning, the principal said that he was not concerned. The teacher’s emailed response: “I’m ok with violating it though … lol.” This email exchange became part of an expensive lawsuit, which included evidence that some teachers in the district had deleted the copyright warning, showing that they were likely aware of the copyright violation. A jury awarded the copyright owner $9.2 million for copyright infringement. Eventually the school district settled the case for $7.8 million.
The lesson from this case is that educators need to get permission from the copyright holder or pay to use the material. Teachers should not assume that they can simply appropriate copyrighted works. Not only do violations of copyright law risk potential financial penalties to teachers and schools, but the rampant abuse of copyright laws signals a potential lack of respect for the property and intellectual rights of others.
However, as we discuss below, the law allows for some exceptions to this rule for educators, recognizing their need to use excerpts from copyrighted materials for pedagogical purposes.
Copyright and the Law
The U.S. Constitution contains a “Copyright Clause,” which gives exclusive rights to authors and inventors for their creations for a certain period of time. There are also three federal laws that protect authorship in the United States: the Copyright Act of 1976, which provides protections for all “original works of authorship”; the Copyright Term Extension Act of 1998, which was intended to let authors protect their work for a longer time period than was allowed under the earlier version of the Copyright Act; and the Digital Millennium Copyright Act, which extended copyright protections to digital works. The concept of “fair use” was recognized in the Copyright Act of 1976 and allows some copyrighted materials to be used by nonprofit educational institutions without compensation to the author or creator.
The so-called “Fair Use” doctrine creates a limited exception to copyright liability under certain circumstances. The doctrine is intended to balance the copyright owner’s rights against the public’s interest in dissemination of information of universal concern. According to part of the Copyright Act, educators may use copyrighted materials “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”
However, it is wrong to assume that all copyrighted materials that teachers use in the classroom fall under fair use. For instance, a French teacher cannot buy and make 100 copies of a copyrighted textbook for her students. Courts consider the following when determining whether using copyrighted materials falls under fair use:
- The purpose and character of the use, such as if it is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for or value of the copyrighted work
The “fair use” guidelines might allow educators to make a single copy to help teach a class or even multiple copies if the copying meets the brevity, spontaneity, and cumulative—terms specific to the guidelines—effect requirements. The number of copies also must not exceed more than one per student in a course, and the document should contain a copyright notice. The law also exempts certain public performances, such as a school play in which there is no admission charge and no compensation paid to any performer. However, be aware that the “fair use” doctrine does NOT apply to computer software, even for educational purposes. Thus, schools must enter into software license agreements for each computer in order to avoid potential lawsuits for infringement.
It is important to note that authors who never register their work can still hold a copyright. Specifically, as soon as the work is created and published, authors have copyright protection. Also, works in the public domain may be used freely. A work falls under public domain 70 years after the death of an author. Some academic journals that are classified as “open source” also might not be subject to copyright.
Additionally, just because a work is online, it may NOT necessarily be used freely by anyone. The nation’s copyright laws protect all original works regardless of the format of the work itself (e.g., book, magazine, or virtual). Furthermore, simply giving credit to the source material does not guarantee that an educator may use the work, and some material might be protected but not have a visible copyright notice.
Finally, educators should know that most lesson plans and other works created by teachers belong to the school district under a concept called “works made for hire.” Accordingly, teachers need permission from their districts to use these works outside their districts, as in a website. If permission is granted, the best policy is to include a credit line near the top or bottom of the page.
Leslie R. Stellman has practiced education law for 45 years, representing many of Maryland’s local boards of education. He has taught education law at Johns Hopkins University for over 25 years and is co-author of Teachers and the Law. Suzanne E. Eckes is the Susan S. Engeleiter Professor of Education, Law, Policy, and Practice in the department of Educational Leadership and Policy Analysis at the University of Wisconsin-Madison in Madison, WI. She is a co-author of Principals Avoiding Lawsuits and a past president of the Education Law Association.
Cox, K. (2019, June 6). Houston school district ordered to pay $9.2 million in copyright infringement case. Above the Law. abovethelaw.com/2019/06/houston-school-district-ordered-to-pay-9-2-million-in-copyright-infringement-case.
DynaStudy, Inc. v. Hous. Indep. Sch. Dist., 325 F. Supp. 3d 767, 772 (S.D. Tex. 2017).
Harvard University (2021). Copyright Law. Arts & Humanities Administrative Services Group. ahas.fas.harvard.edu/copyright-laws.
U.S. Copyright Office (n.d.). How long does copyright protection last? copyright.gov/help/faq/faq-duration.html#:~:text=The%20term%20of%20copyright%20for,plus%20an%20additional%2070%20years.
- Provide professional development for school personnel about copyright infringement. School media specialists are often the most well-versed about these laws and should be specifically trained to provide copyright advice to faculty members in their respective schools.
- If an educator does use copyrighted work in a class, be sure to give proper reference to the publisher along with using the copyright symbol (©).
- Purchase the materials or seek written permission from the copyright owner to reproduce those materials. Otherwise, use only limited excerpts from copyrighted materials when preparing and disseminating instructional items.