SUNY Faculty Copyright Ownership FAQ
1. If I post my course content, learning resources, pedagogical materials, or other original works in Open SUNY or the SUNY Learning Commons (or similar SUNY websites), will I retain ownership of my work?
It depends. Under the current SUNY copyright policy, faculty retain ownership of works produced in the scope of employment, including works produced for on-line instruction unless there is a written agreement between the University and the faculty member to the contrary Putting it more specifically, SUNY and faculty may contract for “work-for-hire,” authorize the work in advance by written agreement, and determine in the contract who the owner shall be. With respect to work produced for on-line instruction, practice regarding the use of written agreements varies from campus to campus. In the absence of a written work-for-hire agreement, copyright ownership vests in the faculty.
2. As a SUNY faculty/staff member, if I own my course content and other materials, and if there are no licenses or other agreements affecting my works, am I the only person who can decide how my materials may be used and who may use them?
Yes, if the faculty staff member is the author of the “course content and other materials.”
3. In my faculty/staff role, I often use common campus resources (for example, computers, library books, library databases, consultations with reference librarians, help from our teaching center, or help from IT staff). Can my campus or SUNY claim copyright ownership or other rights or control of those works based upon the use of campus resources?
The SUNY copyright policy incorporates the academic work-for-hire exception, the effect of which is to vest copyright ownership in the faculty to works authored by the faculty. Use of SUNY facilities is not a relevant consideration under the SUNY policy.
4. Would you please list and explain some examples of circumstances when materials produced and works authored by SUNY faculty/staff are considered works for hire by SUNY? If my campus asks me to create content for a new course and pays me a stipend without a specific agreement in advance for creating the course, is that new course considered a work for hire?
Works-for-hire are defined under the 1976 Copyright Act in §1.01. In part, works-for-hire are works “specifically ordered or commissioned . . . if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.” So, the statute and good practice indicate the need for a written contract as a requisite for work-for-hire. The second and third sentences in SUNY’s copyright policy are intended to address work-for-hire not covered by the academic work-for-hire exception, and indicate that such work-for-hire is subject to “contractual arrangements.”
5. When I use Learning Management Systems such as Blackboard for my teaching, I often post protected materials for which I have not obtained a license but which seem covered by the limitations and exceptions found in §107 (Fair Use) and §110(2) (TEACH Act). If I post my course materials, including those protected materials, online on Open SUNY, will my use of these materials still be covered by Fair Use or the TEACH Act? If not, will I be liable for copyright infringement?
The answer to this question depends on the nature of Open SUNY, and on the character and use of the copyrighted material.
The TEACH Act, in brief, allows fair use sharing of copyrighted material to students learning at a distance with essentially the same coverage as face-to-face sharing, provided that the material is for an educational use, that the use is limited (both limited as per Fair Use and limited in duration to the time the student is enrolled in the distance learning course), and that the institution uses technology to ensure that only enrolled students can access the content and that the content is provided in a way that does not lead to illicit sharing and re-sharing of copyrighted material. If Open SUNY is truly open to all, the provisions of the TEACH ACT will likely not provide coverage and the institution must either license the material, create original material, or make no use of unlicensed material.
However, to the extent that controls are placed on the openness, the protection of the TEACH ACT may apply. However, further analysis of the makeup of Open SUNY would be required before providing final guidance on this question.
To the extent that Fair Use and the Teach Act do apply, faculty must engage in the traditional analysis of the four factors of fair use to determine whether material or a portion thereof, may be shared with students.
6. According to SUNY’s copyright policy, under what circumstances does ownership of materials produced and works authored by SUNY faculty/staff NOT vest in the faculty/staff but instead in the University? Can you please give examples?
Ownership of copyright in work-for-hire that is the subject of a written “contractual arrangement” under SUNY’s policy may vest in SUNY or faculty/staff depending on the agreements of the parties as reflected in the written contractual arrangement.
7. I used to deliver my class from traditional class notes. Now all my class materials are uploaded into the campus Learning Management System. Does my use of these systems, including campus-provided software such as Power Point, affect my copyright ownership of works I have created?
If you are the author of the materials produced in the scope of your employment and therefore covered by the academic work-for-hire exception as incorporated in SUNY’s policy, and therefore the owner of the copyright, you are the owner of the derivatives, and the use of campus-provided software does not alter your ownership.
Counsel’s Office is actively researching this multi-faceted question and will follow up this guidance with an answer to the question when the research is complete.
9. If I want to contribute my content to Open SUNY, will I be required to license that content through Creative Commons? If I license the content through a Creative Commons license, will this allow my campus to assign another faculty member to teach a course on my campus using my materials? May I contribute content to Open SUNY using another license that will allow free access to my work but will not allow it to be used on my campus without my permission?
In the absence of a written work-for-hire agreement, faculty owns the copyright to content produced by faculty. Faculty may volunteer to participate in Open SUNY, and to grant licenses, including Creative Common licenses. The parameters of such licenses are to be determined by the parties and could include either the right of third parties to make derivative works from the copyrighted material or could prohibit such right. Alternatively, faculty may prepare content for Open SUNY pursuant to a written work-for-hire agreement that provides for such licenses, and the parameters thereof, as the parties agree.
10. If a faculty member leaves SUNY employment or dies during employment or his/her employment is terminated, who owns and who has the right to use that person’s faculty-‐authored materials left on the campus Learning Management System or server?
Assuming that the faculty member owns the copyright, and in the absence of a work-for-hire agreement, the member’s estate owns the copyright and has the right to control use
11. Do I need to get student permissions to videotape a classroom lecture.
There is no common law right of privacy in New York, only a statutory right, which is narrowly construed. NY Civil Rights Law § 50 prohibits use of the name, portrait or picture of a living person without consent, but only for advertising or trade purposes. Even when images have been used without consent for profit, the “fleeting” use of images is not prohibited or compensable, and non-celebrities have little chance of recovering damages for “fleeting” image use for profit. So, with respect to students who appear without consent in a classroom video (assuming the video is used for profits), I don’t think there should be much concern to obtain student consent.