{"id":696,"date":"2013-02-15T20:00:35","date_gmt":"2013-02-15T20:00:35","guid":{"rendered":"http:\/\/jolt.richmond.edu\/?p=696"},"modified":"2019-03-08T19:52:37","modified_gmt":"2019-03-09T00:52:37","slug":"taking-note-on-copyrighting-students-lecture-notes","status":"publish","type":"post","link":"https:\/\/blog.richmond.edu\/jolt\/2013\/02\/15\/taking-note-on-copyrighting-students-lecture-notes\/","title":{"rendered":"Taking Note: On Copyrighting Students\u2019 Lecture Notes"},"content":{"rendered":"

\"pdf_icon\"Download PDF<\/a><\/p>\n

Cite as: Matthew M. Pagett, Taking Note: On Copyrighting Students\u2019 Lecture Notes<\/em>, 19 RICH. J. L .& TECH 6 (2013), available at\u00a0http:\/\/jolt.richmond.edu\/v19i2\/article6.pdf<\/p>\n

\u00a0<\/p>\n

by Matthew M. Pagett*<\/p>\n

 <\/p>\n

An essential element of individual property is the legal right to exclude others from enjoying it.\u00a0\u00a0If the property is private, the right of exclusion may be absolute; if the property is affected with a public interest, the right of exclusion is qualified.\u00a0\u00a0But the fact that a product of the mind has cost its producer money and labor, and has a value for which others are willing to pay, is not sufficient to ensure to it this legal attribute of property.\u00a0\u00a0The general rule of law is, that the noblest of human productions\u2014knowledge, truths ascertained, conceptions, and ideas\u2014become, after voluntary communication to others, free as the air to common use.\u00a0\u00a0Upon these incorporeal productions the attribute of property is continued after such communication only in certain classes of cases where public policy has seemed to demand it.\u00a0\u00a0These exceptions are confined to productions which, in some degree, involve creations, invention, or discovery.<\/i>[1]<\/p>\n

\u2013 Justice Louis D. Brandeis\u00a0\u00a0<\/b><\/p>\n

\u00a0<\/b><\/p>\n

I.\u00a0 Introduction<\/b><\/b><\/p>\n

[1]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 According to\u00a0The Orion<\/i>, \u201can independent, student-run newspaper at California State University, Chico\u201d (\u201cCSU\u201d),[2]\u00a0two students at CSU were reported to their school\u2019s Judicial Affairs office on November 16, 2011, for selling class notes from a lecture through the online note-selling service, Notehall.com.[3]\u00a0 Notehall.com solicited the students, including Ms. Kelsey Goishi, a junior majoring in communications studies, through the university\u2019s e-mail client.[4]\u00a0 Through that medium, the service offered the students semester-long positions as professional note-takers, which could garner each student up to $450 per semester.[5]\u00a0 In order to fulfill their duties for this position, Ms. Goishi and the student-employees were required to upload weekly lecture notes and, more importantly, \u201cstudy guides,\u201d which contained \u201cexplanations of all the information that [the students would] be tested on.\u201d[6]<\/p>\n

[2]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 After performing these tasks, the student-employees were expected to inform their classmates about the study guides by sending out a class-wide e-mail.[7]\u00a0 Ms. Goishi\u2019s professor was \u201cmade aware\u201d of the study guide for his class, which was then on sale for $5, after a student sent out such an e-mail.\u00a0 Afterward, Ms. Goishi was required to meet with both the office for Judicial Affairs and her instructor.[8]\u00a0 Though the personal consequences of this meeting for Ms. Goishi are unknown,[9]\u00a0CSU sent Notehall.com a cease-and-desist letter a few months after the incident, citing both state law and university policy forbidding the sale, distribution, and publication of class notes for commercial purposes.[10]\u00a0 As a result, Notehall.com no longer allows students from CSU or other University of California campuses to upload notes through their system.[11]\u00a0 Interestingly, however, the company never acknowledged the validity of CSU\u2019s legal claim, simply noting that it was refusing service to these schools \u201c[o]ut of respect for this policy.\u201d[12]<\/p>\n

[3]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 While it has been asserted that Ms. Goishi\u2019s actions and the Notehall.com procedures for selling notes are a \u201cclear violation\u201d of California state law and broadly speaking, \u201cillegal,\u201d[13]\u00a0the extent to which this may be true and the circumstances under which either California law or U.S. copyright law may be violated is unclear.\u00a0\u00a0This article will review the relevant law on the question of whether a student owns the copyright in her or his own notes and attempt to answer that question.\u00a0\u00a0Part II addresses: (1) the primary elements of a copyrightable work under the Copyright Act of 1976, (2) the Fair Use Doctrine, (3) whether classroom notes constitute protected compilations, and (4) whether classroom notes could be considered \u201cderivative works.\u201d\u00a0 Part III discusses the federal preemption doctrine, whether states have the authority to legislate ownership of copyrighted works, and, if so, the effect of that authority, with special emphasis on California law.\u00a0\u00a0In Part IV, this article will address the particular factual circumstances discussed in Part I and evaluate whether Ms. Goishi and Notehall.com were in \u201cclear violation\u201d of state or federal law.\u00a0\u00a0Lastly, the author will postulate as to the certain circumstances that may or may not create a copyright or allow for the infringement of that right with regard to students\u2019 lecture notes.<\/p>\n

\u00a0<\/b><\/p>\n

II.\u00a0\u00a0Background<\/b><\/b><\/p>\n

A.\u00a0\u00a0Fixation and Originality Under the Copyright Act of 1976<\/b><\/b><\/p>\n

[4]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Congress\u2019s authority to protect individuals\u2019 intellectual property comes from the United States Constitution, which states that \u201cCongress shall have the Power\u00a0.\u00a0.\u00a0.\u00a0[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.\u201d[14]\u00a0\u00a0The statute currently exercising this Congressional power is the Copyright Act of 1976 (\u201cthe Act\u201d).[15]<\/p>\n

[5]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 In pertinent part, the Act states that copyright protection is granted to \u201coriginal<\/i>\u00a0works of authorship\u00a0fixed in a tangible medium of expression<\/i>,\u201d including, but not limited to: (1) literary works; (2) musical works; (3) dramatic works; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.[16]\u00a0\u00a0A work of originality is considered \u201cfixed\u201d when it is written down or captured in such a way that it becomes \u201csufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.\u201d[17]<\/p>\n

[6]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 With regard to academia, the fixation language has been interpreted to\u00a0exclude\u00a0<\/i>material presented orally in courses.[18]\u00a0 In\u00a0Fritz v. Arthur D. Little, Inc<\/i>., the plaintiff taught leadership training seminars and sued the defendant for stealing his trade secrets by taking \u201ccopious notes\u201d during those seminars.[19]\u00a0 The district court dismissed the plaintiff\u2019s copyright claim, however, reasoning that that \u201c[o]riginal words spoken aloud can be copied (and independently copyrighted) by all, if they have not\u00a0previously<\/i>\u00a0been fixed in a tangible medium of expression.\u201d[20]\u00a0 Pulling from Justice Holmes\u2019s opinion in\u00a0Bleistein v. Donaldson Lithographing Co.<\/i>, the Court relied on the aphorism that \u201c[o]thers are free to copy the original[, but t]hey are not free to copy the copy.\u201d[21]<\/p>\n

[7]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Under that rationale, the question of \u201cfixation\u201d is brought to the forefront when considering whether a professor\u2019s lecture may be subject to copyright protection.\u00a0\u00a0Pursuant to the language in\u00a0Fritz<\/i>, a professor or university must be able to show that the students\u2019 notes were not copies of an original, extemporaneous expression in order to have a valid copyright claim; rather she, he, or it must show that the notes were copies of methodically planned, outlined, and notated predeterminations.\u00a0\u00a0Thus, when evaluating whether a professor\u2019s lecture is \u201cfixed,\u201d you must first ask whether the students\u2019 notes are copies of an original, spontaneous statement on the part of the professor or whether the students\u2019 notes are copie
\ns of the professor\u2019s \u201ccopy,\u201d i.e., her or his uniquely prepared presentation of original material.[22]<\/p>\n

[8]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 This question speaks to the other major requirement for a work to be considered copyrightable under the Act, whether the presumptively copyrighted work is \u201coriginal.\u201d[23]\u00a0 A prospective plaintiff can generally meet the originality requirement with little effort, simply showing that the work \u201cpossess some creative spark, \u2018no matter how crude, humble or obvious\u2019 it might be.\u201d[24]\u00a0 Because a professor is likely to organize his or her lecture with some modicum of creativity and thoughtfulness,[25]\u00a0such a presentation would probably satisfy the originality requirement.[26]<\/p>\n

[9]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 In order for a plaintiff to demonstrate a proper claim of copyright infringement, one must prove: \u201c(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.\u201d[27]\u00a0 To establish ownership of a valid copyright, the plaintiff must show both fixation and originality under the terms of the Act.[28]\u00a0 In addition, the work must be of a sort that is qualified to be considered for copyright protection.[29]\u00a0\u00a0While lectures are not explicitly protected under the Act, they are neither explicitly denied such protection.\u00a0\u00a0Under the standard discussed in this article, it seems likely that such expressions would meet the originality requirement.[30]\u00a0 There is a question, however, as to whether a lecture presented vocally and without visual aids is \u201cfixed in a tangible medium\u201d for the purposes of Section 102.\u00a0\u00a0While there seems to be support for the idea that fixity could occur given sufficient preparation on the professor\u2019s part, it is unclear without delving more fully into the facts of a particular case.[31]<\/p>\n

B.\u00a0\u00a0The Fair Use Doctrine<\/b><\/b><\/p>\n

[10]\u00a0\u00a0\u00a0\u00a0\u00a0 When a work is protected under the Act, use may be immune from an action of copyright infringement on the grounds that it is a \u201cfair use\u201d of the author\u2019s protected expression.[32]\u00a0 The fair use exception is codified in Section 107 of the Act and states that the reproduction of a copyrighted work \u201cfor purposes of criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is\u00a0not<\/i>\u00a0an infringement of copyright.\u201d[33]\u00a0 In determining whether the fair use doctrine applies to any one particular situation, the statute directs courts to consider the following factors:<\/p>\n

(1) the purpose and character of the use, including whether such use is of a\u00a0commercial nature<\/i>\u00a0or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.[34]<\/p>\n

[11]\u00a0\u00a0\u00a0\u00a0\u00a0 The fair use doctrine has been referred to as \u201cthe most important defense to infringement,\u201d[35]\u00a0and the Supreme Court has interpreted the doctrine to \u201cpermit[] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which the law is designed to foster.\u201d[36]\u00a0 While there is an argument to be made that the use and sale of a student\u2019s lectures notes constitutes a \u201cfair use,\u201d many factors weigh against such a defense.[37]<\/p>\n

[12]\u00a0\u00a0\u00a0\u00a0\u00a0 The first factor, \u201cpurpose and character,\u201d turns on whether the use is \u201cof a commercial nature.\u201d[38]\u00a0 If the use is of a commercial nature, less weight is typically given to the argument that the use is acceptable under the fair use defense.[39]\u00a0 Even if a court determines that a particular use is \u201cof a commercial nature,\u201d however, such a determination does not fully exclude the possibility of utilizing the fair use defense.[40]\u00a0 For instance, in Ms. Goishi\u2019s situation\u2014where she and other student-employees sold their notes for a moderate profit\u2014a court might find that the other three factors taken together weigh more heavily in favor of a finding that, despite its commercial nature, the sale of the students\u2019 notes was a \u201cfair use.\u201d<\/p>\n

[13]\u00a0\u00a0\u00a0\u00a0\u00a0 It is unclear whether the second fair-use factor, \u201cthe nature of the copyrighted work,\u201d would lend itself, along with the other factors, to a finding that a student\u2019s notes are a \u201cfair use\u201d of a professor\u2019s lecture.\u00a0\u00a0The second factor is broad, but it has been interpreted in such a way that those works which are \u201cintended\u201d to have more copyright protection receive it.[41]\u00a0 Thus, under the intention standard, works that are\u00a0original<\/i>\u00a0(as opposed to derivative),\u00a0creative<\/i>\u00a0(as opposed to factual), and\u00a0unpublished<\/i>\u00a0(as opposed to published) are generally considered to \u201cmerit greater protection.\u201d[42]\u00a0 Such factors cut in favor of and against a student-employee who is working for an organization like Notehall.com.\u00a0\u00a0On one hand, the \u201cunpublished\u201d[43]\u00a0nature of the transcribed lecture notes[44]\u00a0is often a factor weighing against a finding of fair use.[45]\u00a0 On the other, classroom lectures typically constitute a mix of factors, including (a) originality, (b) derivation, (c) creativity, and (d) basis in fact.\u00a0\u00a0While factors (a) and (c) generally weigh against a finding of fair use, factors (b) and (d) typically weigh in favor of such a finding.\u00a0\u00a0Thus, such a mixture of factors would likely obfuscate the application of a clear precedential rule as to whether the \u201cnature\u201d of a classroom lecture protects that lecture against the affirmative defense of \u201cfair use.\u201d<\/p>\n

[14]\u00a0\u00a0\u00a0\u00a0\u00a0 The third factor asks for the relative \u201camount and substantiality of the portion used\u201d in the class notes when compared with the lecture as a whole.[46]\u00a0 Generally speaking, \u201c[t]he more has been taken, the harder it is to justify as fair use\u00a0.\u00a0.\u00a0.\u00a0[because] fair use should as a rule take no more than is necessary to achieve the legitimate aims of the user.\u201d[47]\u00a0 In this case, the students working for Notehall.com were expected to upload class notes at least once a week and to create a study guide for their class\u2019s exam.[48]\u00a0 Thus, it was necessary for them to \u201ctake\u201d something constituting almost the entirety of the lecture, at least with regard to substantive content.\u00a0\u00a0There may be a question as to whether a student truly \u201ctakes\u201d the professor\u2019s lecture when she or he takes that information and processes it in a new form; if one assumes that a lecture is copyrighted in the first place, however, fair use is probably less likely to succeed as an affirmative defense to copying and selling the lecture notes.<\/p>\n

[15]\u00a0\u00a0\u00a0\u00a0\u00a0 The last factor that courts measure when determining whether the fair use defense is applicable is \u201cthe effect of the use upon the potential market for or value of the copyrighted work.\u201d[49]\u00a0 While each factor is typically given equal weight today,[50]\u00a0the fourth factor was at one time considered the predominate factor in any court\u2019s consideration.[51]\u00a0 As a part of that consideration, the operative question for any court is: \u201cDoes the use reduce the money the copyright holder has received for the work or is likely to receive from the work?\u201d[52]\u00a0 If so, then the fair use defense is unlikely to succeed.[53]<\/p>\n

[16]\u00a0\u00a0\u00a0\u00a0\u00a0 At first blush, it would seem that this factor, which was once considered the most important of the four, cuts in favor of a student-employee who sells her class notes online.\u00a0\u00a0While the availability of class notes might affect the overall \u201cgrading curve\u201d of a course, that availability is narrowly tailored for the purpose of helping those students who are enrolled in a certain course.\u00a0\u00a0The notes are rarely seen by individuals other than the students themselves and are not necessarily valuable beyond the life of the course.\u00a0\u00a0Taken in that light, the negative economic effect on either the professor or the university would seem to be slight, bolstering the idea that a student-defendant might be able to utili
\nze the fair use defense after all.<\/p>\n

[17]\u00a0\u00a0\u00a0\u00a0\u00a0 Such a reading of the Act fails to consider how a professor might use his or her lecture material outside of class, however.\u00a0 It may be inferred from the language of the Act that the value of the fourth factor turns on whether the professor\u2019s work is \u201cunpublished.\u201d[54]\u00a0 Thus, if a professor discusses a topic about which she or he intends to publish, and her or his theories and conclusions are \u201cleaked\u201d to the public before they are fully prepared for publication, there may yet be some negative economic effect for the professor.\u00a0\u00a0The extent to which such a leak would be damaging is unclear, however.\u00a0\u00a0Because commercial note-sharing services are typically oriented toward a specific audience and used for a specific purpose (i.e., students seeking to gain a degree), it seems unlikely that a leak would cause more damage to the lecturer than that person\u2019s practice of discussing her or his theories and conclusions during a classroom lecture already does.<\/p>\n

[18]\u00a0\u00a0\u00a0\u00a0\u00a0 Thus, while certain \u201cfair use\u201d factors may cut in favor of the idea that a student-employee and note-taker might be able to assert the fair use defense, the greater weight of the evidence would seem to support the idea that a professor\u2019s lecture, if copyrightable, could withstand such an assertion.<\/p>\n

C.\u00a0\u00a0Compilations and Derivative Works<\/b><\/b><\/p>\n

[19]\u00a0\u00a0\u00a0\u00a0\u00a0 When evaluating factual scenarios like those surrounding class lectures, it is also important to determine whether the lecture itself, the resulting student notes, or a portion of those notes, could be protected as compilations or derivative works.[55]\u00a0 Section 101 of the Act defines a protected \u201ccompilation\u201d as \u201ca work formed by the collection and assembling of preexisting materials\u00a0.\u00a0.\u00a0.\u00a0that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an\u00a0original work of authorship<\/i>.\u201d[56]\u00a0 The same section defines a \u201cderivative work\u201d as:<\/p>\n

“a work based upon one or more preexisting works, such as\u00a0.\u00a0.\u00a0.\u00a0any\u00a0.\u00a0.\u00a0.\u00a0form in which a work may be recast, transformed, or adapted. A work consisting of\u00a0.\u00a0.\u00a0.\u00a0elaborations[] or other modifications which, as a whole, represent an\u00a0original work of authorship<\/i>\u00a0.\u00a0.\u00a0.\u00a0.”[57]<\/p>\n

It is important to note that, for both definitions, the language of the Act focuses on the fact that such works must be so different from preexisting works that they constitute an \u201coriginal work of authorship.\u201d[58]\u00a0 A compilation sufficient to be considered an original work of authorship is created when the preexisting works are selected and arranged in an original way.[59]\u00a0 For derivative works, this happens when the preexisting work is \u201crecast, transformed, or adapted\u201d in such a way that the derivation becomes an original work in and of itself.[60]<\/p>\n

1.\u00a0\u00a0Compilations<\/b><\/b><\/p>\n

[20]\u00a0\u00a0\u00a0\u00a0\u00a0 Little case law exists on the narrow issue of whether a student\u2019s class notes or a professor\u2019s lectures constitutes a protected compilation.\u00a0\u00a0Generally speaking, the Supreme Court of the United States has stated that, while \u201cfacts are not copyrightable[,] compilations of facts generally are.\u201d[61]\u00a0 In\u00a0Feist Publications, Inc. v. Rural Telephone Service Company, Inc.<\/i>, the Court addressed whether a telephone utility\u2019s listing of names, towns, and telephone numbers was copyrightable.[62]\u00a0 Noting that the listings \u201ccould not be more obvious,\u201d the Court determined that they were not sufficiently original to merit copyright protection.[63]\u00a0 The Court reasoned that, in order for a compilation of facts to be sufficiently original to merit copyright protection, it must be \u201cselected, coordinated, or arranged\u201d in an original way.[64]\u00a0 Thus, because the telephone utility\u2019s listing was \u201centirely typical\u201d and \u201cdevoid of even the slightest trace of creativity,\u201d lacking \u201cmore than a\u00a0de minimis<\/i>\u00a0quantum of creativity,\u201d it was not copyrightable.[65]<\/p>\n

[21]\u00a0\u00a0\u00a0\u00a0\u00a0 Although the Supreme Court has not answered the question of whether a student\u2019s lecture notes constitute a copyrightable compilation, one federal district court has held that a professor\u2019s pre-prepared practice questions were copyrighted works.[66]\u00a0 Because a compilation must be the result of an original selection, coordination, or arrangement of facts,[67]\u00a0the contents of an in-class lecture could reasonably meet the criteria for this standard as long as the fixation requirements are met.[68]\u00a0 If those requirements are not met, and a professor\u2019s lecture is not considered a copyrightable work, it is still possible that a student\u2019s own class notes, capturing that work, could constitute a protected compilation.<\/p>\n

[22]\u00a0\u00a0\u00a0\u00a0\u00a0 To address that question, it is helpful to look at the statutory language, discussed at length in\u00a0Feist<\/i>, which requires the selection, coordination, or arrangement of facts in an original way.[69]\u00a0 That mandate strikes at the very heart of this article.\u00a0\u00a0While \u201cfacts are never original,\u201d in and of themselves, they can become so when they are selected, coordinated, or arranged in an original way.[70]\u00a0 With regard to student notes, it is important to consider the fact that the\u00a0Feist<\/i>\u00a0standard does not require a piece be original in its selection, coordination,\u00a0and<\/i>\u00a0arrangement.[71]\u00a0 Rather, originality is required in only one of these areas.[72]\u00a0 Thus, it is likely difficult, though not impossible, for a student to show that the contents of her class notes are the result of originality in their selection and organization (as they are likely the result of the professor\u2019s selections, not the student\u2019s). However, that student may be able to argue that she has arranged the professor\u2019s lecture in a way that is sufficiently original to warrant copyright protection.\u00a0\u00a0In addition, a student who supplements her professor\u2019s lecture notes with her own notes (taken from her independent research, for example), could probably show original selection as well.\u00a0\u00a0Her success would depend, in large part, on the particular factual circumstances surrounding her notes and how those notes were created and amended during the studying process.\u00a0\u00a0Such an showing is discussed in greater detail\u00a0infra<\/i>\u00a0Part V.<\/p>\n

2.\u00a0\u00a0Derivative Works<\/b><\/b><\/p>\n

[23]\u00a0\u00a0\u00a0\u00a0\u00a0 If a professor\u2019s lecture is able to qualify for copyright protection, it is also possible that a student\u2019s notes, which are based on that lecture, could be considered a copyrightable derivative work of the professor\u2019s lecture.\u00a0\u00a0In such a case, a student would have to show that his or her class notes have \u201crecast, adapted, or transformed\u201d the professor\u2019s lecture in an original way[73]\u00a0and, further, that the professor or the institution (i.e., the copyright holder) gave the student permission to prepare such a work.[74]\u00a0 While it has been argued that students\u2019 class notes cannot be considered protected compilations or derivative works \u201cbecause the student is not adding any creativity to the process,\u201d that argument is premised on the idea that \u201c[it is] the student\u2019s job is to take down the professor\u2019s words, exactly from the lecture itself.\u201d[75]<\/p>\n

[24]\u00a0\u00a0\u00a0\u00a0\u00a0 When determining whether a student might own the copyright in his or her class notes, as a derivative work, the first question is whether the student has the permission of the copyright holder, either the professor or the institution, to make the derivative work.[76]\u00a0 Section 106(2) of the Act confers on the author of an original work the right to \u201cprepare derivative works\u201d and Section 103(a) further notes that unlawfully procured copyrighted works are not given protection as derivative works.[77]\u00a0 In interpreting the word \u201cunlawfully\u201d from Section 103, the Seventh Circuit has noted that \u201c[it] means only\u00a0.\u00a0.\u00a0.\u00a0that the right to make a derivative work does not authorize the maker to incorpo
\nrate into it materials that infringe someone else\u2019s copyright.\u201d[78]\u00a0 That is to say, one party cannot use another\u2019s copyrighted material without a \u201cright to obtain [it].\u201d[79]\u00a0 This rule does not translate well in the context of class notes, however.<\/p>\n

[25]\u00a0\u00a0\u00a0\u00a0\u00a0 In the classroom, a professor is presumably well aware of the fact that his or her students are taking notes. Indeed, the value of any classroom experience is the conveyance of information from teacher to student and the retention of that information over time.[80]\u00a0 Since the classroom environment is not often visited in U.S. copyright law, however, it is unclear whether taking notes is sufficient to constitute implicit \u201cpermission\u201d for the creation of a derivative work, despite the implicit permission that seems to flow from this activity.[81]\u00a0 Such an inference would depend, in part, on both (1) the professor\u2019s own understanding of the students\u2019 right to the lecture material and the extent to which that understanding is communicated to the students, and (2) if one exists, the school\u2019s policy on the matter.[82]<\/p>\n

[26]\u00a0\u00a0\u00a0\u00a0\u00a0 When determining the likelihood that a student\u2019s class notes might constitute a derivative work, the second question that a court must ask is whether the student\u2019s notes are sufficiently original.[83]\u00a0 Although the\u00a0Feist\u00a0<\/i>Court stated that \u201c[t]he standard for originality is low,\u201d[84]\u00a0some courts have applied a slightly higher standard to derivative works.[85]\u00a0 In\u00a0Entertainment Research Group, Inc. v. Genesis Creative Group, Inc.<\/i>\u00a0(\u201cERG<\/i>\u201d), the Ninth Circuit employed a test which required derivative works to exhibit a level of originality that: (1) is more than trivial, and (2) \u201creflect[s] the degree to which [the work] relies on preexisting material\u201d unrelated to the scope of \u201cany copyright protection in that preexisting material.\u201d[86]\u00a0 The court explained that the second prong is meant to ensure copyright protection is not given to derivative works which are \u201cvirtually identical\u201d to the original work.[87]\u00a0 Applying that test, the court held that three-dimensional inflatable costumes, which are based on copyrighted, two-dimensional cartoon designs,[88]\u00a0are not sufficiently different from the cartoons to survive the second prong, despite the complexities that come with creating a three-dimensional object out of a two-dimensional drawing.[89]<\/p>\n

[27]\u00a0\u00a0\u00a0\u00a0\u00a0 The Ninth Circuit\u2019s reasoning in\u00a0ERG<\/i>, focusing on the way in which a derivative work is created,\u00a0<\/i>can be applied in this factual scenario as well.\u00a0\u00a0If a student is selling her notes (or an outline based on those notes) through an organization like Notehall.com, the issue of whether that student has a copyright in her notes (or her outline) will depend on the extent to which the student has \u201crecast, transformed, or adapted\u201d the professor\u2019s lecture in a way that is both (1) more than trivial, and (2) not virtually identical to the professor\u2019s work.[90]\u00a0 Much of this determination turns on the particular facts in any one case.\u00a0\u00a0For instance, if the student takes the time and effort to substantially alter the way in which the information from her lecture is presented, then the new, altered form would be more likely to garner its own copyright protection.\u00a0\u00a0Such a possibility is discussed in more detail\u00a0infra<\/i>\u00a0Part V.<\/p>\n

\u00a0<\/b><\/p>\n

III.\u00a0\u00a0State Law & Federal Preemption<\/b><\/b><\/p>\n

[28]\u00a0\u00a0\u00a0\u00a0\u00a0 Much of this article is premised on the idea that a professor\u2019s class lecture must meet Section 101\u2019s standard for fixation in order to be protected under the Act.\u00a0\u00a0In certain instances, however, it is possible for an \u201cunfixed\u201d class lecture be protected from copyright infringement under the laws of the several states.<\/p>\n

[29]\u00a0\u00a0\u00a0\u00a0\u00a0 Section 301 of the Act provides that \u201call legal or equitable rights\u00a0.\u00a0.\u00a0.\u00a0in works of authorship that are fixed in a tangible medium of expression\u00a0.\u00a0.\u00a0.\u00a0are governed\u00a0exclusively<\/i>\u00a0by this title.\u201d[91]\u00a0 That is to say, federal copyright law preempts all copyright laws concerning works that are fixed in a tangible medium of expression.\u00a0\u00a0Thus, no state law that attempts to create copyright protection for such works will be valid.\u00a0\u00a0However, the Act carves out an exception for those works of authorship that \u201cdo[] not come within the subject matter of copyright as specified by sections 102 and 103, including works of authorship\u00a0not fixed<\/i>\u00a0in any tangible medium of expression.\u201d[92]\u00a0 Therefore, a state law providing copyright protection for \u201cnon-fixed\u201d or unfixed works of authorship would not be preempted by the Act, despite the fact that the law would have to do with the subject matter of copyrights.[93]<\/p>\n

A.\u00a0\u00a0California Civil Code \u00a7\u00a7 980-89<\/b><\/b><\/p>\n

[30]\u00a0\u00a0\u00a0\u00a0\u00a0 As of this writing, only California has taken advantage of the \u201cfixity exception\u201d to the Act.[94]\u00a0 In California Civil Code Section 980 (\u201cSection 980\u201d), the California State Legislature mandates that \u201c[t]he author of any original work of authorship that is\u00a0not fixed<\/i>\u00a0in any tangible medium of expression has an exclusive ownership in the representation or expression thereof.\u201d[95]\u00a0 Thus, in California\u2014unlike anywhere else\u2014lack of fixation is not a bar to copyright protection.<\/p>\n

[31]\u00a0\u00a0\u00a0\u00a0\u00a0 The California Court of Appeals addressed Section 980 briefly in 1969\u2014before the implementation of the U.S. Copyright Act of 1976\u2014in\u00a0Williams v. Weisser<\/i>, where it considered a set of facts somewhat reflective of those described here in Part I.[96]\u00a0 In that case, the defendant-company (\u201cthe Company\u201d) published and sold notes from the plaintiff-professor\u2019s (\u201cthe Professor\u201d) course in Anthropology at the University of California at Los Angeles.[97]\u00a0 The Company paid one of the Professor\u2019s students to attend the Professor\u2019s class, take notes based on his lectures, type up those notes, and deliver them to the Company for publication and sale.[98]\u00a0 After the California Superior Court granted the Professor\u2019s motion to enjoin the Company\u2019s actions on the grounds that its actions were prohibited,\u00a0inter alia<\/i>, for violating the Professor\u2019s \u201ccommon law copyright in his lectures,\u201d the case went before the California Court of Appeals.[99]<\/p>\n

[32]\u00a0\u00a0\u00a0\u00a0\u00a0 Given the Professor\u2019s reliance on \u201ccommon law copyright,\u201d[100]\u00a0the court focused its analysis primarily on whether the Professor or the university owned the copyright in his lecture. \u00a0In addition,\u00a0the court asked whether the professor had a right to preclude the defendant from distributing the notes resulting from that lecture, on privacy grounds.[101]\u00a0 The court first determined that the professor owned the copyright in his lecture.[102]\u00a0 Second, on the privacy issue, the court found that the Professor did in fact have a privacy interest in prohibiting the Company from disseminating a product that could be associated with him, especially given the fact that the product was not a fully accurate representation of the professor\u2019s lecture.[103]\u00a0 More importantly, for the purposes of this article, the court of appeals held that Section 980(a), which provides copyright protection for \u201cunfixed works,\u201d was not implicated because the Professor\u2019s lecture \u201cconsist[ed] of the extensive notes which he had compiled before the beginning of the course\u00a0.\u00a0.\u00a0.\u00a0includ[ing] charts and diagrams placed on the classroom blackboard,\u201d all of which were prepared before the beginning of the course.[104]\u00a0 Thus, the court concluded,\u00a0Williams<\/i>\u00a0was \u201cnot a case where the concrete expression of the \u2018composition\u2019 consist[ed] solely of an intangible oral presentation.\u201d[105]<\/p>\n

[33]\u00a0\u00a0\u00a0\u00a0\u00a0 The broad, national implication that one may draw from the court\u2019s determination in\u00a0Williams\u00a0<\/i>is that there is a greater likelihood that a court might consider a professor\u2019s lecture to be \u201cfixed\u201d when the notes informing it were pre
\npared\u00a0before<\/i>\u00a0the beginning of the semester and when the lecture relies on charts and diagrams to communicate to the students.[106]\u00a0\u00a0Further, the inference is that, in order for Section 980 to be implicated, a professor\u2019s lecture must be entirely unfixed.[107]\u00a0 In other words, the lecture must be an extemporaneous presentation without notes, diagrams, and significant pre-semester preparation in order to qualify for protection under Section 980.[108]<\/p>\n

B.\u00a0\u00a0California Civil Code \u00a7\u00a7\u00a066450-52<\/b><\/b><\/p>\n

[34]\u00a0\u00a0\u00a0\u00a0\u00a0 Perhaps due to the fact that one could interpret Sections 980 through 982 of the California Civil Code to protect only classroom lectures that are poorly prepared or un-prepared, or the fact that student notes could be considered uniquely original compilations or derivative works in their own right, the California State Legislature passed another amendment to the California Civil Code on August 30, 2000.[109]\u00a0 The amendment, which is located in Sections 66450 through 66452 of the Code, provides,\u00a0inter alia<\/i>:<\/p>\n

“(a) Except as authorized by policies developed by the University in accordance with subdivision (a) of Section 66452, no business, agency, or person, including\u00a0.\u00a0.\u00a0.\u00a0an enrolled student, shall prepare, cause to be prepared, give, sell, transfer, or otherwise distribute or publish, for any commercial purpose, any contemporaneous recording of an academic presentation in a classroom or equivalent site of instruction by an instructor of record.”[110]<\/p>\n

The Code further stipulates that \u201c[t]his prohibition applies to a recording made in\u00a0any<\/i>\u00a0medium,\u201d including \u201chandwritten or typewritten class notes.\u201d[111]\u00a0 Thus, students in California are prohibited from selling or publishing their class notes, regardless of copyright ownership, without the express permission of the university.<\/p>\n

[35]\u00a0\u00a0\u00a0\u00a0\u00a0 In accordance with the language of Section 66450, which allows for properly constructed university policies to preempt the prohibition forbidding the sale of class notes, many universities in California have set out specific policies clarifying their respective positions.[112]\u00a0 For instance, the University of California at Berkeley has adopted a policy generally in accordance with the state\u2019s prescriptions, proclaiming that professors own the copyright in their own lectures, pursuant to Section 980(a). However, the school asserts that students are prohibited from selling their notes \u201c[e]xcept as approved in advance by the instructor\u00a0.\u00a0.\u00a0.\u00a0.\u201d[113]\u00a0 Additionally, and importantly, the University has also established a \u201cCampus Class Note Subscription Service\u201d through which notes may be sold, but only with the authorization of the University, the Academic Senate, and the course instructor.[114]\u00a0 That utility circumvents the privacy issue discussed in\u00a0Williams<\/i>\u00a0by providing instructors with the right to \u201creview and approve the notes prior to their distribution and sale.\u201d[115]<\/p>\n

[36]\u00a0\u00a0\u00a0\u00a0\u00a0 While California is the only state to have proclaimed that instructors have a copyright in unfixed works existing within its borders,[116]\u00a0universities<\/i>\u00a0in other states have set similar policies.[117]\u00a0 For example, the University of North Carolina at Chapel Hill (\u201cUNC-CH\u201d) has stated in its Copyright Policy: \u201c[s]tudent [w]orks that constitute notes of classroom and laboratory lectures and exercises shall not be used for commercial purposes by the student generating such notes.\u201d[118]\u00a0 Of course, if a student were to own the copyright in her or his own notes, regardless of the UNC-CH policy on the matter, federal copyright laws and the concomitant rights of authorship that come with them would preempt any such prohibition.[119]\u00a0 On the other hand, if a student were not able to meet the requirements of fixation and originality, then a non-California-based university\u2019s policy might control.<\/p>\n

\u00a0<\/b><\/p>\n

IV.\u00a0\u00a0Analysis<\/b><\/b><\/p>\n

[37]\u00a0\u00a0\u00a0\u00a0\u00a0 Though Ms. Goishi\u2019s dilemma is a recent one, it is not an uncommon occurrence for students to be rebuked or punished because of their attempts to publish, disseminate, or sell their class notes online\u2014as the\u00a0Williams<\/i>\u00a0case shows.[120]\u00a0 In fact, the issue was recently litigated in one of the few modern-day cases addressing the narrow issue of whether a student or professor owns the copyright in their respective lecture notes.[121]\u00a0 Though the case was largely litigated in connection to the Digital Millennium Copyright Act (\u201cDMCA\u201d), which proved to be inapplicable to the students\u2019 notes, the case provides a helpful starting point for evaluating the viability of a copyright infringement claim relating to the dissemination and sale of a student\u2019s lecture notes today.[122]<\/p>\n

[38]\u00a0\u00a0\u00a0\u00a0\u00a0 In\u00a0Faulkner Press L.L.C. v. Class Notes L.L.C.<\/i>,\u00a0<\/i>the plaintiff, a professor[123]\u00a0who owned the properly registered copyrights in both his lecture notes and the textbooks which he authored,[124]\u00a0filed a copyright infringement suit against a note-selling company that had \u201chir[ed] student note takers as independent contractors to provide lecture summaries and study materials\u201d at the university.[125]\u00a0 The professor alleged that the company\u2019s student-employees had taken notes that improperly included certain practice questions from his textbooks as well as other materials from the lecture, including an outline that the professor showed during class.[126]<\/p>\n

[39]\u00a0\u00a0\u00a0\u00a0\u00a0 The court acknowledged that the professor\u2019s pre-prepared practice questions were protected by copyright, but found that the student\u2019s lecture summaries could be excepted from enforcement of the Act on grounds of fair use.[127]\u00a0 Thus, the court remanded the case back to the jury to determine the exact nature of the notes taken.[128]\u00a0 The court\u2019s decision speaks to the heart of the issue courts outside of California must resolve when determining the validity of a copyright infringement claim made by a professor or institution against a student.\u00a0\u00a0Based on the court\u2019s determination in\u00a0Faulkner Press<\/i>, the\u00a0way<\/i>\u00a0in which the student takes her or his notes may affect a court\u2019s determination as to the notes\u2019 ability to continue to be sold.<\/p>\n

[40]\u00a0\u00a0\u00a0\u00a0\u00a0 In the\u00a0Terms & Conditions<\/i>\u00a0section of the Notehall.com website, \u00a0the company states that all of its content must be \u201cindependently created, transformative, and non-derivative.\u201d[129]\u00a0 It goes on to say that a student\u2019s notes:<\/p>\n

“[S]hould not be a transcript or recording of another\u201ds [sic] independent efforts\u00a0.\u00a0.\u00a0.\u00a0.\u00a0It should go beyond simply summarizing material covered in class or in written or recorded materials, but include information raised by students in or outside of class, and independent thought, analysis and commentary.\u00a0\u00a0Class notes, for example, must be substantially rewritten after class and include independent thought and analysis, research and information; notes that use a lecturer\u201ds [sic] words or that are not carefully reviewed, rethought and rewritten after class are not useful to or appreciated by students, and not permitted on Chegg sites.”[130]<\/p>\n

Under these terms, a student\u2019s study guide created based on those facts discussed in the professor\u2019s lecture and even a student\u2019s class notes would likely meet the standard required for a work to qualify as a uniquely original piece of authorship that has been captured in the fixed medium of a student\u2019s class notes.\u00a0 Therefore, if a student is able to \u201ctransform\u201d his or her work in such a way that they are no longer what they were\u00a0during<\/i>\u00a0the lecture, then the student would have created his or her own original work of authorship.\u00a0\u00a0In either case, there would likely be a factual issue, just as there was in\u00a0Faulkner Press<\/i>, as to the extent of the \u201ctransformation\u201d of the student\u2019s notes.[131]<\/p>\n

[41]\u00a0\u00a0\u00a0\u00a0\u00a0 It may also be helpful to consider the way in which a court might address a situation like the one
\n described in Part I.\u00a0\u00a0If a student were sued for copyright infringement by her professor or university, a court might address that case in the following way:<\/p>\n

[42]\u00a0\u00a0\u00a0\u00a0\u00a0 First, it is important to determine whether the professor\u2019s lecture would merit copyright protection at all.\u00a0\u00a0One can make that determination by looking at whether the lecture is fixed and, further, whether it constitutes an \u201coriginal work.\u201d[132]\u00a0 It is presently unclear whether an orally transmitted lecture can be considered \u201cfixed.\u201d\u00a0 However, given the court\u2019s ruling in\u00a0Williams<\/i>, fixation may exist if the professor is able to show sufficient evidence that her or his lectures were well-planned before their delivery and that they were based on extensive notes.[133]\u00a0 If the lecture notes are\u00a0not<\/i>\u00a0fixed, but the lecture was presented within the jurisdiction of California, then a copyright would exist under Section 980 of the California Civil Code, which provides protection for unfixed works.[134]\u00a0 In addition, the\u00a0sale<\/i>\u00a0of the class notes would be prohibited, regardless of fixation, under Section 66452 of the Code.[135]\u00a0 It is unclear, however, as to whether a professor\u2019s lecture would also satisfy the originality requirement.\u00a0\u00a0Given that the requirement has been found to be generous, it seems likely that a student\u2019s lecture notes would meet it, even if only as a compilation.[136]<\/p>\n

[43]\u00a0\u00a0\u00a0\u00a0\u00a0 The second question that a court might ask, when addressing this issue, is whether the professor or university owns the copyright.\u00a0\u00a0Given the traditional exception to the \u201cwork made for hire\u201d doctrine,[137]\u00a0there is a strong argument that a court would determine ownership in favor of the professor.\u00a0\u00a0In either case, the court would also need to address whether the student\u2019s notes are excepted from copyright liability under the fair use defense, weighing each of the four factors against one another.\u00a0\u00a0Though it is perhaps unlikely, the court might determine in the alternative that the students had the professor\u2019s or university\u2019s implicit permission to create a derivative work from the professor\u2019s lecture, and, thus, that the work was protected.<\/p>\n

[44]\u00a0\u00a0\u00a0\u00a0\u00a0 Third and finally\u2014regardless of whether a professor\u2019s lecture is found to be copyrightable under the Act\u2014a court would need to determine whether the student had sufficiently transformed the lecture.\u00a0\u00a0A court could so find on the grounds that the student work is a compilation or simply an original creation.[138]\u00a0 In such an instance, the question would remain the same: whether the student work is fixed and, further, whether it is original.[139]\u00a0 While the fixation requirement would likely be met with little effort\u2014since class notes meant for transference and sale are necessarily fixed in a medium\u2014it is unclear whether the student\u2019s work would be considered sufficiently original.\u00a0 Again, this would likely turn on the particular factual circumstances surrounding any one case.<\/p>\n

\u00a0<\/b><\/p>\n

V.\u00a0\u00a0Conclusion<\/b><\/b><\/p>\n

[45]\u00a0\u00a0\u00a0\u00a0\u00a0 As a student in California, Ms. Goishi likely has little legal recourse.[140]\u00a0 By passing sections 980 and 66450, the California legislature has made it exceedingly difficult for students to use their class notes for anything other than studying without the permission of the professor or university.[141]\u00a0 Still, Ms. Goishi\u2019s particular situation is not the only case of a student attempting to sell her professor\u2019s lecture notes in the several states. Thus, it is important to address the legality of doing so outside of California as well.<\/p>\n

[46]\u00a0\u00a0\u00a0\u00a0\u00a0 If Ms. Goishi were a student outside of California, it seems that the copyrightable nature of her lecture notes would largely depend on the\u00a0quality<\/i>\u00a0of those notes and the extent to which they were revised after class.\u00a0\u00a0In particular, the study guide that Ms. Goishi created may be more likely to achieve protection under U.S. copyright law as an original work of authorship. As long as the guide constituted more than a simple pasting of her notes from the lecture (i.e., she thoughtfully worked to develop it as an original source of information), it should be considered a copyrightable derivative work.<\/p>\n

[47]\u00a0\u00a0\u00a0\u00a0\u00a0 The quote at the beginning of this article is excerpted from Justice Brandeis\u2019s dissenting opinion in the 1918 Supreme Court decision\u00a0International News Service v. Associated Press<\/i>.[142]\u00a0 In that case, the Associated Press brought suit against an organization called the International News Service for the fraudulent obtainment of information that the plaintiff gathered and its use for its own news service.[143]\u00a0 The majority held in favor of the plaintiff, relying on the commercial value of the information to that person.[144]\u00a0 That holding prompted Justice Brandeis to note that, \u201cthe noblest of human productions\u2014knowledge, truths ascertained, conceptions, and ideas\u00a0.\u00a0.\u00a0.\u00a0[are] free as the air to common use\u201d once they have been voluntarily communicated, with the exception of instances of \u201ccreation, invention, or discovery.\u201d[145]<\/p>\n

[48]\u00a0\u00a0\u00a0\u00a0\u00a0 The \u201cBrandeis Rule\u201d should be given effect in the broader context of student classroom notes.\u00a0\u00a0Largely speaking, a professor\u2019s lectures are communicated \u201cfree as the air\u201d without being fixed in any permanent form.\u00a0\u00a0In addition, they often constitute transmissions of facts already known in particularly lucid or helpful ways by the general public, and they rarely \u201ccreat[e], invent[], or discover[]\u201d in and of themselves.[146]\u00a0 Thus, excepting those instances in which a professor\u2019s lecture proves to be original or inventive in-and-of itself, student notes should be transmitted among students free as the air.\u00a0 This would allow students to have greater access to the information that they need to succeed.\u00a0\u00a0Finally, in accordance with the Brandeis Rule, student note-selling services like Notehall.com should give way to free note-selling services provided by the universities themselves, which would facilitate quality scholarship and sharing among all of the institutions\u2019 inhabitants.[147]<\/p>\n

 <\/p>\n

\n
<\/div>\n

* Law Clerk to the Honorable Judge Linda Stephens, North Carolina Court of Appeals.\u00a0\u00a0J.D., Wake Forest University School of Law, 2012; B.A., University of North Carolina at Chapel Hill, 2008.\u00a0\u00a0[1]\u00a0Int\u2019l News Serv. v. Assoc. Press, 248 U.S. 215, 250 (1918) (Brandeis, J., dissenting).<\/p>\n

 <\/p>\n

 <\/p>\n

[2]\u00a0About the Orion<\/i>, the Orion, http:\/\/theorion.com\/site\/about\/ (last visited Mar. 14, 2012).<\/p>\n

[3]\u00a0Molly Rose Livingston & Ashley Nakano,\u00a0Notehall Allows Students to Commit Academic Dishonesty<\/i>, the Orion (Nov. 28, 2011), http:\/\/theorion.com\/features\/article_4d317be4-1a47-11e1-a2e4-001a4bcf6878.html.<\/p>\n

[4]\u00a0Id.<\/i><\/p>\n

[5]\u00a0Id.\u00a0\u00a0<\/i>The e-mail itself reportedly proclaimed: \u201cBeing a Note-Taker means making money just being a good student!\u201d \u00a0Id.<\/i><\/p>\n

[6]\u00a0Id.<\/i><\/p>\n

[7]\u00a0Id.<\/i><\/p>\n

[8]\u00a0Livingston & Nakano,\u00a0supra<\/i>\u00a0note 3.<\/p>\n

[9]\u00a0Id.<\/i><\/p>\n

[10]\u00a0See\u00a0<\/i>Erica Perez,\u00a0Colleges Crack Down on Selling, Sharing Notes<\/i>, Calif. watch (Feb. 3, 2012), http:\/\/californiawatch.org\/dailyreport\/colleges-crack-down-selling-sharing-notes-14744.<\/p>\n

[11]\u00a0Id.\u00a0\u00a0<\/i>When a student attempts to upload notes from CSU or a school associated with the University of California, they are met with the following error message (or one like it):”Unfortunately, No More Notes!\u00a0.\u00a0.\u00a0.\u00a0The California State University Student Conduct Code prohibits students from selling class notes, and subjects violators to potential disciplinary actions.\u00a0Out of respect for this policy<\/i>, Notehall does not offer its note taking services at your school.\u00a0\u00a0We apologize for the inconvenience, and share your disappointment with this CSU policy decision.”\u00a0Id.<\/i>\u00a0(emphasis added).<\/p>\n

[12]\u00a0Id.<\/i><\/p>\n

[13]\u00a0Livingston & Nakano,\u00a0supra<\/i>\u00a0note 3.<\/p>\n

[14]\u00a0U.S. Const. art. I, \u00a7 8, cl. 8.<\/p>\n

[15]\u00a0David Mirchin & William S. Strong,\u00a0Copyright Law<\/i>,\u00a0in<\/i>\u00a0Massachusetts Continuing Legal Education, Intellectual Property Practice \u00a7 7.1.8 (Jerry Cohen ed., 2011) (\u201cThe first statute to provide copyright protection, enacted in 1790, protected only maps, charts, and books.\u00a0\u00a0The Copyright Act of 1909 broadened available copyright protection.\u00a0\u00a0This act was replaced by the Copyright Act of 1976, which took effect on January 1, 1978, and\u00a0.\u00a0.\u00a0.\u00a0is the current copyright law.\u201d).<\/p>\n

[16]\u00a0Copyright Act of 1976, 17 U.S.C. \u00a7 102(a) (2006).\u00a0\u00a0It should be noted that academic \u201clectures\u201d are not included in the list of possibly copyrightable material.\u00a0\u00a0This omission is not sufficient to defeat a professor\u2019s claim of copyright, however, as the statutory list is only\u00a0inclusive<\/i>, not\u00a0exclusive<\/i>, merely providing examples of likely copyrightable works.\u00a0\u00a0The idea that lecture notes may fall within the realm of copyrightable subject matter is bolstered by the fact that lecture notes are neither explicitly excluded by the administering agency as among those materials\u00a0not<\/i>\u00a0covered by the Copyright Act.\u00a0 Such excluded works include:\u00a0“(a) words and short phrases such as names, titles, and slogans .\u00a0.\u00a0. (b) [i]deas plans, methods, systems, or devices .\u00a0.\u00a0. (c) [b]lank forms, such as time cards, graph paper, account books, diaries, bank checks, scorecards, address books, report forms, order forms and the like\u00a0.\u00a0.\u00a0. (d) [w]orks consisting entirely of information that is common property containing no original authorship, such as, for example: Standard calendars, height and weight charts, tape measures and rulers, schedules of sporting events, and lists or tables taken from public documents or other common sources.”Material Not Subject to Copyright, 37 C.F.R. \u00a7 202.1 (2012);\u00a0see also\u00a0<\/i>Stephanie L. Seeley,\u00a0Are Classroom Lectures Protected by Copyright Laws? The Case for Professors\u2019 Intellectual Property Rights<\/i>, 51 Syracuse L. Rev. 163, 171 (2001) (\u201cIt seems contradictory to deny professors copyright protection in their expression of ideas conveyed through a lecture since \u2018the requirements for copyright protection are minimal\u00a0.\u00a0.\u00a0.\u00a0.\u2019\u201d).<\/p>\n

[17]\u00a017 U.S.C. \u00a7 101.<\/p>\n

[18]\u00a0Fritz v. Arthur D. Little, Inc., 944 F. Supp. 95, 100 (D. Mass. 1996).<\/p>\n

[19]\u00a0Id.<\/i>\u00a0at 96, 100-01 (determining that \u201cthere is not a strong likelihood that plaintiffs will succeed on the merits of their copyright infringement claims\u201d).<\/p>\n

[20]\u00a0Id.<\/i>\u00a0at 100 (emphasis added).<\/p>\n

[21]\u00a0Id.<\/i>\u00a0(quoting\u00a0Bleistein v. Donaldson Lithographing Co.<\/i>, 188 U.S. 239, 249 (1903)) (internal quotation marks omitted).<\/p>\n

[22]\u00a0Fritz,<\/i>\u00a0944 F. Supp. at 99.\u00a0\u00a0It may be that this question can only be properly answered after an extensive factual inquiry to determine exactly which parts of a professor\u2019s lecture are unique and spontaneous representations, which parts were pre-prepared presentations, and, concurrently, which parts of the students\u2019 notes come from which parts of the professor\u2019s lecture.\u00a0See generally<\/i>\u00a0Bleistein<\/i>, 188 U.S. at 249-50 (referring to the process of \u201ccopy[ing] a copy\u201d versus \u201ccopy[ing] an original,\u201d and noting that \u201cthe [first] copy is the personal reaction of an individual upon nature.\u00a0.\u00a0.\u00a0.\u00a0[p]ersonality always contains something unique.\u00a0.\u00a0.\u00a0.\u00a0[i]t expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible, which is one man\u2019s alone\u201d).<\/p>\n

[23]\u00a017 U.S.C. \u00a7 102(a) (2006).<\/p>\n

[24]\u00a0Feist Publ\u2019ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991) (noting that \u201c[o]riginality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying\u201d).<\/p>\n

[25]\u00a0Preparing to Teach the Large Lecture Course<\/i>, Univ. of Ark. Wally Cordes Teaching and Faculty Support Ctr., http:\/\/tfsc.uark.edu\/118.php (\u201cOrganize the topics in a meaningful sequence.\u00a0\u00a0<\/i>Lurching from one topic to another makes it difficult for students to assimilate and retain the material\u00a0.\u00a0.\u00a0.\u00a0Arrange the course topics thematically, chronologically spatially, in ascending or descending order, by cause and effect or problem and solution, or according to some other conceptual rationale.\u201d);\u00a0see\u00a0<\/i>Barbara Gross Davis, Tools for Teaching 137 (2d ed., 2009) (explaining the importance of lecture organization).<\/p>\n

[26]\u00a0See<\/i>\u00a0Feist<\/i>, 499 U.S. at 345 (\u201c[I]t is beyond dispute that\u00a0compilations<\/i>\u00a0of facts are within the subject matter of copyright.\u201d).\u00a0\u00a0Interestingly, while the originality with which a professor organizes her or his lecture speaks to the copyrightability of a certain lecture, the ingenuity and originality with which a student takes his or her notes also speaks to the extent to which the student notes are a separate, unique creation\u2014and not just a copy\u2014warranting copyright protection in and of themselves.<\/p>\n

[27]\u00a0Id.<\/i>\u00a0at 361.<\/p>\n

[28]\u00a0See id.\u00a0<\/i>at 355 (\u201cThe two fundamental criteria of copyright protection are originality and fixation in tangible form.\u201d) (quoting H.R. Rep. No. 94-1476, at 51 (1976)).<\/p>\n

[29]\u00a0See generally supra<\/i>\u00a0note 16; 17 U.S.C. \u00a7 102(a).<\/p>\n

[30]\u00a0It is helpful when thinking about whether a lecture should be considered a work subject to the Act to look to the \u201cIdea\/Expression\u201d doctrine.\u00a0\u00a0This principle declares that only an individual\u2019s particular \u201cexpression\u201d of an idea is protected by copyright law, not the idea itself.\u00a0\u00a0Thus, the\u00a0way<\/i>\u00a0in which a professor presented his material would be more relevant for purposes of the Act than the mere fact that he presented the material at all.\u00a0\u00a0See<\/i>\u00a0Eldred v. Ashcroft, 537 U.S. 186, 219 (2003) (\u201c[Copyright law] distinguishes between ideas and expression and makes only the latter eligible for copyright protection.\u201d).<\/p>\n

[31]\u00a0Parts of a lecture that are specifically planned out by a professor may be more likely to be considered \u201cfixed.\u201d\u00a0 Any part of a lecture that it could be reproduced would likely meet the fixation requirement (e.g., PowerPoint presentations, sound recordings, and outlines created by the professor and then published to the class).<\/p>\n

[32]\u00a017 U.S.C. \u00a7 107.\u00a0\u00a0Unlike the reactionary defenses discussed in the section above (e.g., lack of originality, etc.), the fair use doctrine is an affirmative defense to a claim of copyright infringement.\u00a0\u00a0Id.<\/i><\/p>\n

[33]\u00a0Id.\u00a0<\/i>(emphasis added).<\/p>\n

[34]\u00a0Id.<\/i>\u00a0(emphasis added).<\/p>\n

[35]\u00a0Mirchin & Strong,\u00a0supra<\/i>\u00a0note 15, \u00a7 7.11.1.<\/p>\n

[36]\u00a0Stewart v. Abend, 495 U.S. 207, 236 (1990) (quoting\u00a0Iowa State Univ. Research Found., Inc. v. Am. Broad. Cos.<\/i>, 621 F.2d 57, 60 (2d Cir. 1980)).<\/p>\n

[37]\u00a0But see<\/i>\u00a0Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 566 (1985) (noting that \u201cthe single most important element of fair use\u201d is the factor concerning the \u201cEffect on the Market\u201d).\u00a0\u00a0If a court were to rely most heavily on the market-effect factor, it might find that the commercial sale of student notes\u00a0does<\/i>\u00a0fall within the fair use exception, largely because the professor and university would likely continue to generate the same level of revenue despite the proliferation of the professor\u2019s lecture notes among his or her students.\u00a0\u00a0This rationale is discussed in more detail in paragraphs 15-17,\u00a0infra<\/i>.<\/p>\n

[38]\u00a017 U.S.C. \u00a7 107(1).<\/p>\n

[39]\u00a0Harper & Row<\/i>, 471 U.S. at 566-67 (quoting M. Nimmer, Copyright \u00a71.10[D] 1-87 (1st ed. 1984)).<\/p>\n

[40]\u00a0Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 584 (1994) (\u201cIn giving virtually dispositive weight to the commercial nature of the parody, the Court of Appeals erred.\u00a0\u00a0The language of the statute makes it clear that the commercial or nonprofit education purpose of a work is\u00a0only one element<\/i>\u00a0
\nof the first factor enquiry into its purpose and character.\u201d) (emphasis added).<\/p>\n

[41]\u00a0Id.\u00a0<\/i>at 586.<\/p>\n

[42]\u00a0Peter Letterese & Assocs., Inc. v. World Inst. Scientology Enters., Int\u2019l, 533 F.3d 1287, 1312, 1319 (11th Cir. 2008) (holding that a church organization\u2019s dissemination of a book on sales techniques to train its members for positions within the church constituted a fair use of the book).<\/p>\n

[43]\u00a017 U.S.C. \u00a7 107.\u00a0\u00a0In this scenario, another interesting factual question that may need to be asked is\u00a0not<\/i>\u00a0whether the actual lecture is unpublished (as most lectures are), but whether the lecture\u2019s\u00a0content<\/i>\u00a0has previously been published.\u00a0\u00a0A particular lecture\u2019s class material might be more protected if the professor were to discuss a topic about which she or he intends (or has begun) to publish, but has not yet disseminated.<\/p>\n

[44]\u00a0It is presumed the copying of the lecture notes is sufficiently fixed to bestow copyright protection.\u00a0\u00a0Whether a particular student copies down a professor\u2019s lecture word-for-word or merely takes notes on the general topics discussed is likely to play an important role in any such copyright infringement case.<\/p>\n

[45]\u00a0See\u00a0<\/i>Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 555 (1985) (\u201cThe obvious benefit to author and public alike of assuring authors the leisure to develop their ideas from fear of expropriation outweighs any short-term \u2018news value\u2019 to be gained from premature publication of the author\u2019s expression.\u201d).\u00a0\u00a0Under that standard, a professor\u2019s lecture may be more likely to survive a fair use defense when it includes information that the professor intends to publish at a later date to the larger academic community (e.g., a study or project on which the professor is currently working).<\/p>\n

[46]\u00a017 U.S.C. \u00a7 107(3).<\/p>\n

[47]\u00a0Mirchin & Strong,\u00a0supra<\/i>\u00a0note 15, \u00a7 7.11.1(j).<\/p>\n

[48]\u00a0See\u00a0<\/i>Livingston & Nakano,\u00a0supra<\/i>\u00a0note 3.<\/p>\n

[49]\u00a017 U.S.C. \u00a7 107(4).<\/p>\n

[50]\u00a0See\u00a0<\/i>Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 (1994) (\u201cAll [four statutory factors] are to be explored, and the results weighed together, in light of the purposes of copyright.\u201d) (citing William F. Patry & Shira Perlmutter,\u00a0Fair Use Misconstrued: Profit Presumptions, and Parody<\/i>, 11 Cardozo Arts & Ent. L.J. 667, 685-87 (1993)).<\/p>\n

[51]\u00a0See\u00a0<\/i>Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 602 (1985) (Brennan, J., dissenting).<\/p>\n

[52]\u00a0Mirchin & Strong,\u00a0supra<\/i>\u00a0note 15, \u00a7 7.11.1(k).<\/p>\n

[53]\u00a0Id.<\/i><\/p>\n

[54]\u00a0See\u00a0<\/i>17 U.S.C. \u00a7 107 (\u201cThe fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.\u201d).<\/p>\n

[55]\u00a0See<\/i>\u00a0id.<\/i>\u00a0at \u00a7 103(b) (noting that \u201cderivative works\u201d and compilations are encompassed within the penumbra of copyrighted works, but only regarding \u201cthe material contributed by the author of such work[s], as distinguished from the preexisting material employed in the work\u201d).<\/p>\n

[56]\u00a0Id.<\/i>\u00a0at\u00a0<\/i>\u00a7 101 (emphasis added).<\/p>\n

[57]\u00a0Id.<\/i>\u00a0(emphasis added).<\/p>\n

[58]\u00a0See id.<\/i><\/p>\n

[59]\u00a0See id.<\/i><\/p>\n

[60]\u00a0Id.<\/i><\/p>\n

[61]\u00a0Feist Publ\u2019ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 344-45, 348 (1991) (distinguishing between \u201cnothing but raw data\u2014i.e., wholly factual information not accompanied by an original written expression,\u201d which is not copyrightable, and works \u201cpossess[ing] some minimal degree of creativity,\u201d which are protected by copyright law).<\/p>\n

[62]\u00a0See id.\u00a0<\/i>at 342-44.<\/p>\n

[63]\u00a0Id.<\/i>\u00a0at 362-63 (\u201cWe conclude that the names, towns, and telephone numbers copied by Feist were not original to Rural and therefore were not protected by the copyright in Rural\u2019s combined white and yellow pages directory.\u201d).<\/p>\n

[64]\u00a0See id.<\/i>\u00a0at 358 (\u201cThe key to the statutory definition is the second requirement. It instructs courts that, in determining whether a fact-based work is an original work of authorship, they should focus on the manner in which the collected works have been \u2018selected, coordinated, and arranged.\u2019\u201d).<\/p>\n

[65]\u00a0Id.<\/i>\u00a0at 362-63.<\/p>\n

[66]\u00a0See\u00a0<\/i>Faulkner Press, L.L.C. v. Class Notes, L.L.C., 756 F. Supp. 2d. 1352, 1360 (N.D. Fla. 2010).<\/p>\n

[67]\u00a0See Feist<\/i>, 499 U.S. at 360.<\/p>\n

[68]\u00a0The practice questions had previously been written down in the professor\u2019s textbook, helping meet the fixation requirement.\u00a0\u00a0See Faulkner Press<\/i>, 756 F. Supp. 2d at 1356.<\/p>\n

[69]\u00a0See Feist<\/i>, 499 U.S. at 358.<\/p>\n

[70]\u00a0See<\/i>\u00a0id.<\/i>\u00a0(\u201cFacts are never original, so the compilation author can claim originality, if at all, only in the way the facts are presented.\u201d).<\/p>\n

[71]\u00a0See generally<\/i>\u00a017 U.S.C. \u00a7 101 (2006) (\u201cA \u2018compilation\u2019 is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated,\u00a0or<\/i>\u00a0arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term \u2018compilation\u2019 includes collective works.\u201d) (emphasis added).<\/p>\n

[72]\u00a0See Faulkner Press<\/i>, 756 F. Supp. 2d at 1357.<\/p>\n

[73]\u00a0See<\/i>\u00a017 U.S.C. \u00a7\u00a7 101, 103.<\/p>\n

[74]\u00a0See id.\u00a0<\/i>at \u00a7103(a) (\u201c[P]rotection for a work employing pre-existing material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.\u201d);\u00a0see also id.\u00a0<\/i>at \u00a7 106(2); Gracen v. Bradford Exch., 698 F.2d 300, 302 (7th Cir. 1983) (\u201c[E]ven if [Defendant\u2019s] painting and drawings had enough originality to be copyrightable as derivative works\u00a0she<\/i>\u00a0could not copyright them unless she had authority to use copyrighted materials from the movie. \u2018[P]rotection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.\u2019\u201d) (quoting 17 U.S.C. \u00a7 103(a)).<\/p>\n

[75]\u00a0See Seeley<\/i>,\u00a0supra<\/i>\u00a0note 16, at 187 (\u201cAccordingly, due to the student\u2019s lack of creativity, there is not enough originality to assert that the lecture is significantly different from the class notes\u00a0.\u00a0.\u00a0.\u00a0.\u201d).<\/p>\n

[76]\u00a0See<\/i>\u00a0Gracen<\/i>, 698 F.2d at 302.<\/p>\n

[77]\u00a017 U.S.C. \u00a7\u00a7 103(a), 106(2).<\/p>\n

[78]\u00a0Pickett v. Prince, 207 F.3d 402, 406 (7th Cir. 2000).<\/p>\n

[79]\u00a0Id.<\/i><\/p>\n

[80]\u00a0See, e.g.<\/i>,\u00a0The Collegiate University: Building Exceptional Faculty-Student Engagement<\/i>, Wake Forest U. (Dec. 8, 2008), strategicplan.wfu.edu\/whitepaper.html\u00a0 (last visited Nov. 2, 2012).<\/p>\n

[81]\u00a0It should be noted that a lawsuit would be highly unlikely if the copyright holder were to provide the student with explicit permission to create a derivative work.<\/p>\n

[82]\u00a0Some schools have set explicit policies proclaiming that students do not have a copyright interest in the notes that those students take during class.\u00a0\u00a0See, e.g<\/i>., Course Note-Taking and Materials, Policy Statement, Univ. Cal. Berkeley\u00a0(Dec. 5, 2011)<\/i>,\u00a0available at<\/i>\u00a0http:\/\/campuspol.chance.berkeley.edu\/policies\/coursenotes.pdf (noting that instructors retain the right to prohibit students from taking notes in class and, further, stating that \u201c[e]xcept as approved in advance by the instructor, students may not more broadly share their notes or other Class Materials. Furthermore, except as authorized\u00a0.\u00a0.\u00a0. students may not reproduce, share, or distribute notes or other Class Materials made available by an instructor for commercial purposes or compensation\u201d).\u00a0\u00a0<\/i>This is discussed in more detail in the Preemption and Analysis sections,\u00a0infra<\/i>\u00a0Parts III & IV.<\/p>\n

[83]\u00a0See<\/i>\u00a0Pickett<\/i>, 207 F.3d at 405 (\u201c[O]riginality is required for a derivative work.\u201d).<\/p>\n

[84]\u00a0Feist Publ\u2019ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 362 (1991) (\u201c[O]riginality is not a stringent stand
\nard; it does not require that facts be presented in an innovative or surprising way.\u201d).<\/p>\n

[85]\u00a0\u00a0Compare<\/i>\u00a0Picket<\/i>, 207 F.3d at 405 (expressing disbelief that the \u201crequisite incremental originality . . . slight as it need be\u201d could not be shown),\u00a0and<\/i>\u00a0Feist<\/i>, 499 U.S. at 345 (\u201cOriginal . . . means only that the work was independently created by the author\u00a0.\u00a0.\u00a0.\u00a0and that it possesses at least some minimal degree of creativity. . . . [T]he requisite level of creativity is extremely low\u201d),\u00a0with<\/i>\u00a0Entm\u2019t Research Grp. v. Genesis Creative Grp., 122 F.3d 1211, 1220 (9th Cir. 1997) (\u201c[T]o support a copyright the original aspects of a derivative work must be more than trivial.\u00a0\u00a0Second, the original aspects of a derivative work must reflect the degree to which it relies on preexisting material and must not in any way affect the scope of any copyright protection in that preexisting material.\u201d) (citing\u00a0Durham Indus., Inc. v. Tomy Corp.<\/i>, 630 F.2d 905, 909 (2d Cir. 1980)),\u00a0cert. denied<\/i>, 523 U.S. 1021 (1998) [hereinafter\u00a0ERG<\/i>].<\/p>\n

[86]\u00a0ERG<\/i>, 122 F.3d at 1220.<\/p>\n

[87]\u00a0Id.<\/i><\/p>\n

[88]\u00a0Id.<\/i>\u00a0at 1214 n.2 (\u201cFor example, Pillsbury purchased \u2018Pillsbury Doughboy\u2019 costumes, Toys \u2018R\u2019 Us purchased \u2018Geoffrey the Giraffe\u2019 costumes, and Quaker Oats purchased \u2018Cap\u2019n Crunch\u2019 costumes.\u201d).<\/p>\n

[89]\u00a0Id.<\/i>\u00a0at 1224 (noting that \u201cgranting [the plaintiff costume designer] a copyright in its costumes would have the practical effect of providing ERG with a de facto monopoly on all inflatable costumes depicting the copyrighted characters\u201d).<\/p>\n

[90]\u00a0See<\/i>\u00a017 U.S.C. \u00a7101 (2006);\u00a0ERG<\/i>, 122 F.3d at 1220.<\/p>\n

[91]\u00a0Copyright Act of 1976, 90 Stat. 2541 (current version codified at 17 U.S.C. \u00a7 301(a)) (emphasis added).<\/p>\n

[92]\u00a0Copyright Act of 1976, 90 Stat. 2541 (current version at 17 U.S.C. \u00a7 301(b)(1)) (emphasis added).<\/p>\n

[93]\u00a0See\u00a0<\/i>Trenton v. Infinity Broad. Corp., 865 F. Supp. 1416, 1427 (C.D. Cal. 1994) (noting that a California state law, which provides copyright protection for unfixed works, \u201csteers clear of any legal or equitable rights created under federal law, and thereby avoids federal preemption under [the Act]\u201d).<\/p>\n

[94]\u00a0Stephen Fishman, The Copyright Handbook: What Every Writer Needs to Know 112 (Ilona Bray ed., 11th ed. 2011) (\u201cCalifornia has a law that broadly recognizes rights in unfixed original works of authorship[, while o]ther states don\u2019t have such laws .\u00a0.\u00a0.\u00a0.\u201d) (citation omitted).<\/p>\n

[95]\u00a0Cal. Civ. Code \u00a7 980 (West 2012).<\/p>\n

[96]\u00a0Williams v. Weisser, 78 Cal. Rptr. 542, 543 (Ct. App. 1969).<\/p>\n

[97]\u00a0Id<\/i>.<\/p>\n

[98]\u00a0Id.<\/i><\/p>\n

[99]\u00a0Id.<\/i><\/p>\n

[100]\u00a0At that time, state copyright law\u2014if any\u2014governed protection for unpublished works unless those works had been specifically registered with the U.S. Copyright Office.\u00a0\u00a0See<\/i>\u00a0U.S. Copyright Office, Copyright Basics 6 (2012),\u00a0available at\u00a0www.copyright.gov\/circs\/circ01.pdf (\u201cUnder the law in effect before 1978, copyright was secured either on the date a work was published with a copyright notice or on the date of registration if the work was registered in unpublished form.\u201d).<\/i><\/p>\n

[101]\u00a0Williams<\/i>, 78 Cal. Rptr. at 550-51.<\/p>\n

[102]\u00a0Id.<\/i>\u00a0at 545-50.\u00a0\u00a0Although the court could not address the statutory causes of action available under the Copyright Act of 1976, which did not exist at that time, its holding is consistent with the still generally accepted exception to the \u201cWorks Made for Hire\u201d section of the Act.\u00a0\u00a0The Act defines a \u201cwork made for hire\u201d as \u201ca work prepared by an employee within the scope of his or her employment.\u201d \u00a017 U.S.C. \u00a7 101 (2006).\u00a0\u00a0The copyright in such works is generally considered to reside with the employer, here the University.\u00a0\u00a0Id.\u00a0<\/i>at \u00a7 201(b).\u00a0\u00a0However, courts have crafted an exception for professors because, \u201c[a]lthough college and university teachers do academic writing as a part of their employment responsibilities and use their employer\u2019s paper, copier, secretarial staff, and (often) computer facilities in that writing, the\u00a0universal assumption<\/i>\u00a0and practice<\/i>\u00a0[is] that (in the absence of an explicit agreement as to who had the right to copyright) the right to copyright such writing belong[s] to the teacher rather than to the college or university.\u201d \u00a0Hays v. Sony Corp. of Am., 847 F.2d 412, 416 (7th Cir. 1988) (discussing the historical teacher exception and noting that \u201c[t]he reasons for a presumption\u00a0against<\/i>\u00a0finding academic writings to be work made for hire are as forceful today as they ever were.\u201d) (emphasis added),\u00a0abrogated on other grounds by<\/i>\u00a0Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990).\u00a0\u00a0But see<\/i>\u00a0Rochelle Cooper Dreyfuss,\u00a0The Creative Employee and the Copyright Act of 1976<\/i>, 54 U. Chi. L. Rev. 590, 599 (1987) (\u201cThe dispositive issue is whether production of scholarly material is \u2018within the scope of employment,\u2019 that is, a part of the job.\u00a0\u00a0Since scholarship clearly is a factor in decisions regarding tenure, promotion, salary increases, sabbatical leaves, and reduced teaching loads, scholarly works should now belong to universities rather than to faculty members.\u201d).<\/p>\n

[103]\u00a0Williams<\/i>, 78 Cal. Rptr. at 550-51.<\/p>\n

[104]\u00a0Id.<\/i>\u00a0at 543.<\/p>\n

[105]\u00a0Id.<\/i>\u00a0(citations omitted).<\/p>\n

[106]\u00a0See id.<\/i><\/p>\n

[107]\u00a0Cal. Civ. Code \u00a7 980 (West 2012).<\/p>\n

[108]\u00a0Balt. Orioles, Inc. v. Major League Baseball Players Ass\u2019n, 805 F.2d 663, 675 (7th Cir. 1986).<\/p>\n

[109]\u00a0See<\/i>\u00a0Charles P. Nash,\u00a0On the Ownership of Academic Presentations: The Evolution of California Education Code Sections 66450-66452<\/i>, 35 McGeorge L. Rev. 205, 218 (2004).\u00a0\u00a0Nash provides a fascinating history of the proposal and eventual passing of sections 664050-52 of the California Civil Code, which prohibit the sale of students\u2019 lecture notes, and notes that the bill was originally put forth to \u201ccurb unauthorized note taking in California.\u201d\u00a0\u00a0Id.\u00a0<\/i>at 206.<\/p>\n

[110]\u00a0Cal. Ed. Code \u00a7 66450 (2012).<\/p>\n

[111]\u00a0Id.<\/i>\u00a0(emphasis added).<\/p>\n

[112]\u00a0Perez,\u00a0supra\u00a0<\/i>note 10.<\/p>\n

[113]Course Note-Taking and Materials, Policy Statement, Univ. Cal. Berkeley,\u00a0supra<\/i>\u00a0note 82, at 1.<\/p>\n

[114]\u00a0Id.<\/i>\u00a0at 2.<\/p>\n

[115]\u00a0Id.<\/i><\/p>\n

[116]\u00a0Fishman,\u00a0supra<\/i>\u00a0note 94.<\/p>\n

[117]\u00a0See, e.g.<\/i>, Office of University Counsel, Copyright Policy of the University of North Carolina at Chapel Hill, (Jan. 1, 2009),\u00a0available at<\/i>\u00a0http:\/\/www.unc.edu\/campus\/policies\/copyright%20policy%2000008319.pdf.<\/p>\n

[118]\u00a0Id.\u00a0<\/i>at 14.<\/p>\n

[119]\u00a0See, e.g.<\/i>, 17 U.S.C. \u00a7 101\u00a0et seq.\u00a0<\/i>(2006).<\/p>\n

[120]\u00a0See, e.g.<\/i>, Spencer H. Hardwick,\u00a0Finalsclub.org Passes Punch<\/i>, The Harv. Crimson (Feb. 18, 2009), http:\/\/www.thecrimson.com\/article\/2009\/2\/18\/finalscluborg-passes-punch-span-stylefont-weight-boldcorrection\/ (discussing a \u201cgrowing course preparatory Web site . . . which allows students to share notes, create study groups, and blog about lectures and sections,\u201d reporting that one Harvard professor had forced a student to remove a blog concerning his course, and noting that the Harvard University Office of the General Counsel had determined that \u201ca lecture is automatically copyrighted as long as the professor prepared some tangible expression of the content\u2014notes, an outline, a script, a video, or audio recording\u201d);\u00a0see also\u00a0<\/i>Ryan Singel,\u00a0Lawsuit Claim: Students\u2019 Lecture Notes Infringe on Professor\u2019s Copyright<\/i>, WIRED (Apr. 4, 2008), http:\/\/www.wired.com\/threatlevel\/ 2008\/04\/prof-sues-note\/.<\/p>\n

[121]\u00a0See\u00a0<\/i>Faulkner Press L.L.C. v. Class Notes L.L.C., 756 F. Supp. 2d. 1352, 1355-58 (N.D. Fla. 2010).<\/p>\n

[122]\u00a0See id.\u00a0<\/i>at 1356, 1359.<\/p>\n

[123]\u00a0The professor was joined in this action by the company that published his textbooks.\u00a0\u00a0See id.\u00a0<\/i>at 1355.<\/i><\/p>\n

[124]\u00a0These te
\nxtbooks were required reading for the course.\u00a0\u00a0See id.\u00a0<\/i>at 1361 n.1.<\/i><\/p>\n

[125]\u00a0Id.<\/i>\u00a0at 1355.<\/p>\n

[126]\u00a0Faulkner Press<\/i>, 756 F. Supp. 2d at 1356. \u00a0The professor also brought claims against the note-selling company for improperly using information in the professor\u2019s textbooks under the Digital Millennium Copyright Act. However, the Northern District of Florida determined that the act of taking notes during a professor\u2019s class did not violate the Act. \u00a0See id.<\/i>\u00a0at 1359-60.<\/p>\n

[127]\u00a0Id.\u00a0<\/i>at 1358-59.<\/p>\n

[128]\u00a0Id.<\/i>\u00a0at 1359.<\/p>\n

[129]\u00a0Chegg.com Terms of Use<\/i>, Notehall (last updated Oct. 22, 2012), http:\/\/www.notehall.com\/index\/termsofuse.<\/p>\n

[130]\u00a0Id.<\/i><\/p>\n

[131]\u00a0Faulkner Press<\/i>, 756 F. Supp. 2d at 1358-59.<\/p>\n

[132]\u00a0See\u00a0<\/i>discussion\u00a0supra\u00a0<\/i>Part II.A.<\/p>\n

[133]\u00a0See\u00a0<\/i>Williams v. Weisser, 78 Cal. Rptr. 542, 545 n.4 (Ct. App. 1969).<\/p>\n

[134]\u00a0See\u00a0<\/i>discussion\u00a0supra<\/i>\u00a0Part III.A.<\/p>\n

[135]\u00a0See\u00a0<\/i>discussion\u00a0supra<\/i>\u00a0Part III.B.<\/p>\n

[136]\u00a0L. Batlin & Son, Inc. v. Snyder, 536 F.2d 487, 490 (2d Cir. 1976) (\u201cThe test of originality is concededly one with a low threshold . . .\u00a0.\u201d) (citing\u00a0Alfred Bell & Co. v. Catalda Fine Arts, Inc.<\/i>, 191 F.2d 100, 103 (2d Cir. 1951)).<\/p>\n

[137]\u00a0See\u00a0<\/i>17 U.S.C. \u00a7 101 (2006).<\/p>\n

[138]\u00a0See\u00a0<\/i>17 U.S.C. \u00a7 103(b); Feist Publ\u2019n, Inc. v. Rural Tel. Co., 499 U.S. 342, 355-59 (1991) (discussing the requirements for a compilation that is copyrightable).<\/p>\n

[139]\u00a0Feist,\u00a0<\/i>499 U.S. at 354 (stating that fixation and originality are the two fundamental requirements for a copyright).<\/p>\n

[140]\u00a0See\u00a0<\/i>Cal. Educ. Code \u00a7 66450 (West 2012).<\/p>\n

[141]\u00a0See\u00a0<\/i>Cal. Civ. Code \u00a7 980(a)(1) (West 2012); Cal. Educ. Code \u00a7 66450(a) (prohibiting the use of handwritten class notes for any commercial purpose).<\/p>\n

[142]\u00a0Int\u2019l News Serv. v. Assoc. Press, 248 U.S. 215, 250 (1918) (Brandeis, J., dissenting).<\/p>\n

[143]\u00a0Id.<\/i>\u00a0at 231 (majority opinion).<\/p>\n

[144]\u00a0Id.<\/i>\u00a0at 245-46.<\/p>\n

[145]\u00a0Id.<\/i>\u00a0at 250 (Brandeis, J., dissenting).<\/p>\n

[146]\u00a0Id.<\/i><\/p>\n

[147]\u00a0See, e.g.<\/i>,\u00a0<\/i>Course Note-Taking and Materials, Policy Statement, Univ. Cal. Berkeley,\u00a0supra<\/i>\u00a0note 82, at 2.<\/p>\n

 <\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

Download PDF Cite as: Matthew M. Pagett, Taking Note: On Copyrighting Students\u2019 Lecture Notes, 19 RICH. J. L .& TECH 6 (2013), available at\u00a0http:\/\/jolt.richmond.edu\/v19i2\/article6.pdf \u00a0 by Matthew M. Pagett*   An essential element of individual property is the legal right to exclude others from enjoying it.\u00a0\u00a0If the property is private, the right of exclusion may […]<\/p>\n","protected":false},"author":4287,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[1228],"tags":[],"class_list":["post-696","post","type-post","status-publish","format-standard","hentry","category-articles"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/paMHOZ-be","jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/posts\/696","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/users\/4287"}],"replies":[{"embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/comments?post=696"}],"version-history":[{"count":0,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/posts\/696\/revisions"}],"wp:attachment":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/media?parent=696"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/categories?post=696"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/tags?post=696"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}