Photo by dskley on Flickr

Over the last few weeks there have been a number of conversations centered around who owns the content that teachers create for their classrooms. Anyone in the teaching profession knows that part of being a teacher is actually not that different from being an artist. Teachers have to think outside of the box about how to convey concepts and ideas just as artists strive to create works that encourage people to think differently. Teachers are constantly repurposing and revising units and materials created by others to meet their needs. Similarly, artists incorporate the styles and techniques of artist they admire into their own work.

As a result, people in both professions tend to walk a fine line between repurposing and modifying content to create new, original works, and plagiarism. A high profile example of this is the lawsuit that street artist Shepard Fairey found himself in over the Obama “HOPE” posters he created for the 2008 election campaign. The Associated Press, sued him for using one of their images without permission. Fairey claimed that he had transformed the original photograph enough to claim Fair Use of the content, but the Associated Press disagreed. Unfortunately, due to fact that the case settled outside of court (and Fairey’s tampering with evidence), the case was never argued as a copyright case, so we will never know whether this was actually considered a case of Fair Use. This kind of re-purposing of intellectual property runs rampant on sites like Teachers Pay Teachers and even individual teacher blogs (some which can be found linked from sites like We Are Teachers. It’s not always clear whether this content is covered under Fair Use, and by selling the content, this coverage is limited even more. Selling lessons and units is a place where educators can cross the line into copyright infringement, although this is often due to lack of resources, not bad intentions.

The Debate

Just recently there was a fascinating conversation on Twitter that I jumped into centered around the debate over teachers selling the content they create and teachers who give their content away for free.

My response was a reminder that, unless there is specific language in a teacher’s contract stating that they retain ownership of materials they create for their classrooms, their work is considered “work for hire,” and is owned by their employer. An engaging conversation ensued regarding this language and the rights of teachers to profit from work they do outside of their contractual hours. Many people commented about the unfairness of this expectation and law, considering the fact that much of this content creation is happening outside of school hours.

Fair Use in the Classroom

I am not in disagreement with the fact that teachers work hundreds of hours every year that are, essentially, unpaid, and fall outside of their contractual work hours (raises hand). However, it is important for teachers to understand a few things (speaking for myself as well here). While researching copyright law in education for the chapter in my book on Laws in the Digital classroom, I came across this “work for hire” law as well as other laws pertaining to Fair Use that impact teachers in the classroom. In general, teachers are protected under Fair Use laws since they are not profiting from the sale of works they are using, the materials are for educational purposes, and they are usually limited to a selection of text.

The issue arises when teachers supplant materials with photocopied versions of these materials (i.e. photocopying an entire textbook for the class rather than purchasing a copy for each student). In other words, if the way a teacher is reproducing and disseminating material impacts the sale of the material they are reproducing, it is not Fair Use (or legal). In my experience, this usually happens in schools and districts where funds to purchase these materials do not exist, or not enough materials have been provided by the district due to large class sizes. In these cases, it is hard to side with a textbook company, but it is also important that educators understand that what they are doing is not defendable as “Fair Use” just because it is being used for educational purposes.

Teachers in Canada are in the middle of a lawsuit filed by Access Copyright, a company that represents thousands of Canadian publishers and collects royalties for them. The company claims that Canadian schools are making more copies than their licensing fees pay for (this is under Canadian law). Teachers in the affected schools must now provide copies of their last 7 years of lesson plans to show whether they reused intellectual property in those plans. This is both, as the head of one of the teacher’s unions explains, “a logistical nightmare,” and it is also a frightening potential precedent that could find itself spreading into the US. It’s not clear what the company considers use of intellectual property and how that is defined in the lawsuit.

So What About Teachers Pay Teachers?

A quick search on Teachers Pay Teachers (TPT) for materials related to the Dr. Seuss book, The Lorax, returns hundreds of results. Many of these contain quintessential truffula trees and various forms of the Lorax himself. There are some that take directly from the book’s illustrations (see below). TPT has a section of their website dedicated to explaining their expectations and policies around copyright, and right underneath the material shown below is a place where you can report the content if it goes against that policy. Some of the comments date back to 2015, so it is clear that the users of the site do not see any issue with this use of the images.

Teachers Stealing from Teachers

An even larger problem with sites like these occurs when sellers put content created by other teachers up for sale. A December 2018 article by Education Week laid out a number of incidents like these. As a blogger, I have had my content reposted without my consent and have gone through the process (sometimes multiple times with the same site) of requesting that the content be removed from the site. Usually my content was stolen to bring more traffic to the site in order to garner ad revenue. I’m pretty sure that I would be much more upset to see someone outright selling something that I wrote and shared freely.

So what now?

I’m not sure what the conclusion, solution, or easy answer is for all of this. Yes, teachers deserve to be paid more, and I understand why they would want to make extra cash selling lessons and materials to help out fellow teachers. On the other hand, when those materials contain blatant use of intellectual property that they don’t own the rights to, that is problematic. While I am not saying that work for hire laws are totally fair in the case of teachers, I understand how, for instance, an advertising agency would not want an employee making money on the side selling ad campaigns she or he made as an employee of the company, even if it was created outside of their contracted work time. What makes sense to me is for teachers to ask for the rights to maintain ownership of their classroom materials to be included in their contracts. I am also aware that not all content on TPT is stolen or plagiarized, and not all content created there is made to be used in a classroom as a work for hire. (Commentary on the academic quality of materials found there is for another post, or you can read Eric Sheninger’s piece on the topic.)

What also makes sense to me is for teachers to be vocal about the importance of a livable wage, for schools and districts to budget and plan carefully for materials, and for states and cities to fully fund our public schools so that students have the materials they need to learn. Districts should also be considering Open Educational Resources, which can be used free of cost.

As a final thought, both teachers and artists learn from their colleagues, work closely together, and share ideas, and their work reflects this sharing and collaboration. However, I wonder what an Artists Pay Artists website might look like, or if it would make sense for such a thing to exist. While artists do sell their work, it is understood that this work, though influenced by others, is original. Personally, I can think of very few materials that I have made for my classroom, workshops, or presentations, that was not influenced in some way by someone else’s materials, or that isn’t a revised or repurposed version of something I had seen before. For this reason, I don’t feel comfortable selling these materials. I have always shared my content freely.

I’m not sure that my opinions on this will be popular with everyone, but if we are not having these conversations, we are avoiding the hard work of deconstructing the power of textbook companies, addressing the state of our woefully underfunded schools, making sure that teachers are paid a living wage, and also protecting the intellectual property of teachers themselves.

4 Comments

  1. Reply

    Thanks for this important and thought-provoking essay. Lesson plans and curriculum resources are examples of copyrighted work that are entitled to the full force of the law. Thus, teachers are always both creators and users of copyrighted content. Most teachers have only a slender understanding of their rights and responsibilities under the law.

    When we created the Code of Best Practices in Fair Use for Media Literacy Education, we recognized that many teachers create curriculum materials with copyrighted content embedded in it. For example, a lesson plan on To Kill a Mockingbird may have stills from the film or excerpts of dialogue from a shooting script. Because educators may freely use copyrighted materials in face-to-face instruction under Section 110(a) of the Copyright Act, they are free to select news, advertising, movies, still images, magazine articles, Web sites, video games, and other copyrighted material for classroom learning.

    But in incorporating copyrighted content into curriculum materials, educators should choose material that is germane to the project or topic, using only what is necessary for the educational goal or purpose for which it is being made. In some cases, this will mean using a clip or excerpt; in other cases, the whole work is needed. Whenever possible, educators should provide proper attribution and model citation practices that are appropriate to the form and context of use.

    There’s no substitute for conducting a fair use analysis. Doing so can build people’s confidence in understanding how copyright and fair use support both creators and users. In determining whether my use of a particular copyrighted material is a fair use, I ask:

    1. Did my use “transform” the material taken from the copyrighted work by using it for a different purpose than that of the original, or did it just repeat or retransmit the work for the same intent and value as the original?
    2. Did I use just the amount I needed to accomplish my goal, considering the nature of the copyrighted work and of the use?

    You note that when teachers create curriculum materials, they may be more or less original. Teachers may copy directly from the work of others, remix or create something truly new. Informal sharing of these materials occurs online, at educational conferences and through professional development programs. But it is OK for teachers to sell these materials, too. In materials they wish to sell or share, curriculum developers should be especially careful to choose illustrations from copyrighted media that are necessary to meet the educational objectives of the lesson, using only what furthers the educational goal or purpose for which it is being made. Often this may mean using a small portion, clip or excerpt, rather than an entire work, although sometimes it may be permissible to use more—or even all. Curriculum developers should not rely on fair use when using copyrighted third-party images or texts to market or promote their materials. For promotional purposes, the permissions process is appropriate.

    • marybethhertz

      Reply

      Thank you, Renee.

      I don’t understand why fair use is not a required part of teacher preparation curriculum. I would love for the Creative Commons language you use “copy, remix” to become part of the standard lexicon for lesson planning and lesson plan/unit plan sharing. I’m pretty sure that all I got in my preparation courses that as long as what I was copying was for “educational purposes,” I was in the clear.

      Teachers should have the right to sell (quality) materials they produce that follow copyright and fair use guidelines, and in order to do that, we also need to make sure that their rights to the work they create are protected. Thank you for the important work that you are doing to support teachers through understanding these concepts both with their students and in their own professional practice.

  2. Reply

    Teachers and districts need to understand and use Creative Common licensing and/or other types of open licenses on all work. They should also only be acquiring openly licensed material unless there is none available for a specific area, which is becoming more rare every day. Teachers and districts need to understand the difference between works of art – fiction, poetry, drama, in all forms of media – and educational materials that are not works of art. And, sure, every teacher’s lesson for every class is on some level a work of art, but not in the sense of copyright law. Teachers will experience more satisfaction, I think, when the lessons they create are properly licensed with an open license and all components of the lessons are appropriately attributed to the originator. Here’s some thoughts I wrote on the subject a few years ago on my blog https://developingprofessionalstaff-mpls.blogspot.com/2015/11/the-oer-business-model.html.
    I’ve included even more background in the chapter I wrote for this book which was recently published by RedHat. https://opensource.com/open-organization/resources/educators-guide The book is openly licensed, free to down load, and a good example of educational material that is intended for teacher and administration professional development.

    • marybethhertz

      Reply

      Thanks, Dan, for the resource. As you state in the blog post you shared, the fee comes not with the creation of the content, but the work that goes into facilitating its use in the classroom. This is how I explain my book to people. The lessons I would freely give away, but the book is about the context and the implementation of the concepts in the lessons. Even the folks at http://oercommons.org sell their professional development services on implementing OER in the classroom.

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