I know of at least one large state university in which the employees¹ union
is relying upon the fact that the Board of Trustees Policies grant, in
general, copyright ownership to the employee authors. It seems to me that
Foraste v. Brown does not support that idea.
I am not, however, a lawyer, so I would be glad to hear from some one whose professional practice would live insight to this question.
In Foraste v. Brown, the court said that university policies (in this case, a Faculty Handbook) do not rise to the level of a contract or an express agreement signed by both (or all) parties required by the work for hire language of Title 17.
The judge said ³It is a bedrock principle that Œwhen the [statutory] text's meaning is plain, courts are obligated to enforce the provision as written. [**26] " Desilets v. Wal-Mart Stores, Inc., 171 F.3d 711, 714 (1st Cir. 1999) (citing United States v. Rivera, 131 F.3d 222, 224 (1st Cir. 1997)). The language of the work made for hire doctrine could not be clearer: it requires the parties to make an express agreement, memorialized "in a written instrument signed by them.¹ 17 U.S.C. § 201(b)²
JOHN FORASTE, Plaintiff, v. BROWN UNIVERSITY and LAURA FREID, Defendants.
C.A. No. 01-434S
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND 248 F. Supp. 2d 71; 2003 U.S. Dist. LEXIS 3715; 74 U.S.P.Q.2D (BNA) 1914
March 7, 2003, Decided
Thanks,
Janet Nepkie
Dr. Janet Nepkie
Professor of Music and Music Industry
Music Department
State University of New York
College at Oneonta
Oneonta, N.Y. 13820-4015
Phone (607) 436 3425
Fax 607 436 2718
From: Kevin Smith <ksmith[_at_]defiance.edu>
Reply-To: CNI-COPYRIGHT -- Copyright & Intellectual Property
<CNI-COPYRIGHT[_at_]cni.org>
Date: Thu, 18 Aug 2005 15:29:15 -0400
To: CNI-COPYRIGHT -- Copyright & Intellectual Property
<CNI-COPYRIGHT[_at_]cni.org>
Subject: [CNI-(C)] Re: [CNI-(C)] "University as author?"
Given the language in section 201(b) that makes the employer the author of a WFH "unless the parties have expressly agreed otherwise in a written instrument signed by them," does any one else worry that many university policies would not be effective, even if they purport to give the rights to the faculty member? If the university later decided to claim ownership anyway, would the policy be effective if it were simply a statement contained in a faculty handbook, for instance, not an instrument signed by both parties? I am not saying that would be good policy for a university, just wondering what weight a court might actually give the policy in those circumstances.
Kevin L. Smith, M.A., M.L.S., J.D.
Director, Pilgrim Library
Defiance College
201 College Place
Defiance, OH 43512
419-783-2482
ksmith[_at_]defiance.edu
>
> ----- Original Message -----
>
> From: Steven Jamar <mailto:sjamar[_at_]law.howard.edu>
>
> To: CNI-COPYRIGHT -- Copyright & Intellectual Property
> <mailto:CNI-COPYRIGHT[_at_]cni.org>
>
> Sent: Wednesday, August 17, 2005 6:25 PM
>
> Subject: [CNI-(C)] Re: [CNI-(C)] "University as author?"
>
>
>
>
>
> On Aug 17, 2005, at 5:25 PM, Agenbroad, James ((Civ,ARL/CISD)) wrote:
>
>
>> >> >> >> >> >> And to repeat the refrain once more -- most schools do not claim copyright >> in the academic or artistic or even prosaic things like class prep notes and >> such works of its faculty. But most do claim patent in inventions of >> faculty. >> >> >> >> Steve >> >> >> >> --But unless they explicitly have a policy granting copyrights to the >> faculty, what difference do their claims make? Of course the fact that they >> generally have ZERO editorial input to academic works published by their >> faculty would IMHO argue against a WMFH situation. -Jim.
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