Intellectual property includes literary or artistic works, inventions, business methods, industrial processes, logos, and product designs. Nearly every activity engaged in by students, staff, and faculty in schools involves the production or use of intellectual property; examples include lesson plans, student assignments, speeches and lectures, videos, books, school Web sites, publications, reports, concerts, and plays. Most items used in education are legally protected intellectual property, often owned by someone other than the user. All members of school communities are permitted to use protected intellectual property, but they must engage in “fair use” or get advance permission of the owners. Users must be careful not to use intellectual property unlawfully, or they risk having to pay damages, fines, and/or court costs. Items in the public domain, however, may be used without cost to the user or consent of the owner.
Legal issues affecting intellectual property in education involve both creation and use of intellectual works. Intellectual property law balances the rights of individuals to make, own, distribute, and profit from their creations and the rights of the public to make use of knowledge and inventions. Illustrations of the law of intellectual property in education include copyright and patent protection for the products of teaching and scholarship, copyright and patent infringement for improper use of protected works, and trademark licensing and protection of names, logos, symbols, and pictures used to identify schools.
By far, the most applicable category of intellectual property law in schools is copyright. Copyrights are intangible rights granted through the federal Copyright Act to an author or creator of an original artistic or literary work that can be fixed in a tangible means of expression such as hard copies, electronic files, videos, or audio recordings. Copyright law protects literary, musical, dramatic, choreographic, pictorial, sculptural, and architectural works as well as motion pictures and sound recordings. Each copyrightable work has several “copyrights”—the exclusive rights to make copies of the work, distribute the work, prepare derivative works, and perform or display the work publicly.
With some important exceptions, two of which are highlighted here, teachers and students may not use the copyrighted works of others without permission of the copyright holders. The first exception, fair use, is the most important and most often cited. The fair use of a copyrighted work, “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” If the use is a fair use, then the user need not obtain advance consent of the copyright holder. Determining whether the use is fair requires the application of four factors: purpose and character of the use, nature of the copyrighted work, amount and substantiality of the portion used in relation to the work as a whole, and effect of the use upon the potential market for or value of the work. The second exception is also fairly common in schools; it is not an infringement for teachers and students to perform or display a copyrighted work in the course of face-to-face or online/distance education teaching activities. For electronic display or performance, the school must comply with several additional requirements.
Copyrightable works created today are protected from the time the work is fixed in a tangible medium of expression until 70 years after the death of the author/creator. Once a copyright term expires, the work goes into the public domain.
Under federal patent law, patents for “novel, useful, and nonobvious” inventions are granted for a nonrenewable 20-year term, granting the inventor the rights to exclude others from making, using, or selling the invention during that time. At term expiration, the invention enters the public domain.
In applications for patents, individuals must provide a “specification” describing how their invention works, and offer “claims” stating what is new, useful, and nonobvious (i.e., patentable) about the invention. When multiple applications (including recently granted patents) make identical or nearly identical claims, the U.S. Patent Office will conduct an investigation to determine which applicant first conceived and reduced the patent to practice. Effectively, a patent can be thought of as belonging to the winner of a race, the one who first brings the invention from conception to patent application and then to practice.
In patent infringement cases, the defendants may argue that the plaintiff’s patent was unwarranted (e.g., failure to meet the novelty, utility, and/or nonobviousness requirements). However, there is no defense for good faith or ignorance of the patent. A patent owner is required to mark the product with a notice of patent or provide actual notice of the patent to the infringer. Even so, defendants may produce evidence that they, acting in good faith, put the product or process into practice at least one year in advance of the patent owner’s application.
Litigation in patent cases is extremely rare in K–12 education. Colleges and universities, on the other hand, with their research activity, often have patent policies that regulate ownership of patents and require profit sharing between the inventors (often, faculty researchers) and their universities.
Under the federal Lanham Act, a trademark includes “any word, name, symbol, or device, or any combination thereof used . . . to identify and distinguish [a person’s] goods . . . from those manufactured or sold by others and to indicate the source of the goods” (15 U.S.C. § 1127). Trademarks are also protected under state law. The intent of trademark law is to make “actionable the deceptive and misleading use of marks” in commerce; “to protect persons engaged in such commerce against unfair competition; [and] to prevent fraud and deception in such commerce by the use of reproductions, copies, counterfeits, or colorable imitations of registered marks.”
The primary requirement for trademarks is distinctiveness—to identify the goods and services and avoid confusion or deception. Trademark law protects the trademark owner from losing his or her market. Several factors are analyzed in trademark infringement claims: the degree of similarity between the two marks, the strength of the owner’s mark, evidence of actual confusion, the length of time the defendant has used the alleged similar mark without evidence of actual confusion, intent of the alleged infringer, the degree to which the two marks (and associated goods and services) are in the same competitive market, and the similarity of the goods and services in the minds of the public.
The more similar the competing marks are, the more likely a finding of confusion and infringement. The more distinctive the registered mark is, the more likely there will be a finding of infringement. There is likely no trademark infringement when a later use of a similar mark is established in a different geographical market where the second user has no notice of the first mark, he or she acts in good faith, and there is no confusion or other deception.
Trademark litigation in K–12 education is exceedingly rare, particularly because there is no real competitive sales market for school items. Further, in order to be registrable, a mark must be used to identify goods and services—not a common practice in K–12 education. In other words, it is perfectly understandable that a state, or even a region of a state, may have two high schools with the same nickname such as the “wildcats.” So, while a logo or a symbol of a particular school may be distinctive and, therefore, confusing to others if nearby schools use strikingly similar ones, the name itself or the team colors would not be considered distinctive.
For another example, consider a high school and a local pizzeria that uses the name of the school or its nickname in the restaurant’s name. Assuming that a school’s nickname and/or logo can be trademarked, the school could make an argument that the pizzeria’s use of the same name (or perhaps even the same mascot) could be confusing to the public.
Patrick D. Pauken
- Daniel, P. T. K., & Pauken, P. D. (2005). Copyright laws in the age of technology: Changes in legislation and their applicability to the K–12 environment. In K. E. Lane, M. J. Connelly, J. F. Mead, M. A. Gooden, & S. Eckes (Eds.), The principal’s legal handbook (3rd ed., pp. 441–453). Dayton, OH: Education Law Association.
- Daniel, P. T. K., & Pauken, P. D. (2005). Intellectual property. In J. Beckham & D. Dagley (Eds.), Contemporary issues in higher education law (pp. 347–393). Dayton, OH: Education Law Association.
- Sperry, D. J., Daniel, P. T. K., Huefner, D. S., & Gee, E. G. (Eds.). (1998). Education law and the public schools: A compendium. Norwood, MA: Christopher-Gordon.
- Copyright Act, 17 U.S.C. §§ 101 et seq.
- Lanham Act, 15 U.S.C. §§ 1051 et seq.
- Patent Act, 35 U.S.C. §§ 1 et seq.