On 12 May 1997, "Angela M. Klueber" <amzimm01[_at_]homer.louisville.edu> wrote:
>
> I know someone who wrote something for a class and got an A on it.
> The next semester, the professor included this work in a course
> pack for his next class, without consulting the author
> (his previous student). She found out about it by accident and was
> upset that he used her work without asking permission. Does she
> have any recourse or was that within his rights as the instructor
> the work was turned in to?
Assuming that the student writing was copyrightable (that it was sufficiently original), then it's clear the professor copied the student's work and thus infringed the student's reproduction right. The questions to be asked are (1) does the professor have some statutory exemption; (2) is the copying fair use; or (3) is there some express or implied consent by the student to use her writing in the manner described.
This is pretty much non-commercial use. The student could argue that the professor makes a salary, and in using the student's work he receives a financial benefit by not having to make up his own writing. It would depend a little bit on the role the writing played in the course pack. If the educational institution is nonprofit, this cuts even more in favor of finding fair use.
There is also a moral component in this factor, and although the professor's conduct was not flagrantly immoral, not asking the student for permission in these circumstances does not cut in the professor's favor. Also, you do not mention whether he gave the student attribution or not, and it would seem to me that the attribution question should be one a professor should also pose to a student. A personal example: In my first semester of law school, in my very first exam, the professor wanted to use my exam as a model. Very properly, in my estimation, she asked whether she could or not. At first I said yes, provided that she *not* give me attribution, and then I decided that my identity might become known anyway, and asked her not to. This was a considerate professor.
b. Nature of copyrighted work.
The work is an expressive, creative work, and, therefore, the use of it cuts against fair use. Also, an interesting argument could be made that this is an unpublished work and therefore merits greater protection as per Harper.
c. Amount and substantiality of copy in relation to copyrighted work.
Sounds like the prof used the whole thing, and this cuts against fair use.
d. Effect of the use upon potential market for or value of copyrighted work.
Here, the student would have to argue that she was going to use her writing in some commercial way. Don't know the details, but that might be hard. This would have to be intertwined with the unpublished issue.
Conclusion for fair use: borderline, but the fact that it's educational and non-commercial probably argue in favor of finding fair use.
3. If you're rooting for the professor (I'm not), there may be rules that the student has "agreed" to in going to that school that permit professors to use student work in this fashion. In the absence of any express consent of that nature, the professor would have to argue implied consent, and I think he'd have trouble convincing anyone that most students reasonably intend to permit their work to be used in this manner.
All of the above is a legal analysis (although no legal advice is intended and any taken would be a mistake), but I would advise (not legally, though) that the student talk to the professor and ask him to withdraw her writing from the course pack. If the student is uncomfortable with the professor or if that doesn't work, she could consider talking to the school administration.
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