Bear and Copyright Contract Fall Through the Cracks: Who Owns Student Art Work?

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition
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In the early 1990’s, when I was applying to film schools, I recall that different schools had different policies regarding the copyright ownership of student work. Copyright in any work, of course, is owned by the author in the first instance. However, many colleges and universities have policies (and in some cases contracts) that purport to alter that basic ownership principle, by requiring that students assign some or all of their rights to the school. For example, USC film school's policy provides that the school owns the copyright in any film made using school equipment. The policy at NYU’s film school, by contrast, is that students retain their copyright for the most part but must grant NYU the right to purchase copies of and display the work. These policies are rarely tested because, historically, there has not been a large or profitable market for this work.

Andy Duann, a student photographer at the University of Colorado, had the opposite problem: too big a market. Duann served as a staff photographer for the University’s on-line student newspaper, the CU Independent. Last month, he came upon the following scene. A 200-pound male black bear had wandered on to campus and up a tree. While Duann snapped away, Colorado Parks and Wildlife officers placed a large cushion underneath the bear, shot it with two tranquilizer darts and then . . . splat. Duann agreed to sell the photographs to the Boulder Daily Camera and the Associated Press picked up the story. Internet viral gold.

Here’s the problem. As reported by the Daily Camera, shortly after the photographs went viral, the CU Independent stepped in and claimed that Duann had no authority to distribute his images because, per school policy, it was the University -- not the student -- that owned the copyright in CU Independent staff photographs. In fact, each CU Independent photographer had been required to sign a contract assigning his or her copyrights to the school. Upon learning this, the Associated Press issued a “photo elimination” order and prepared to pull the photographs from circulation.

So why are the photographs still out there? Because, like the bear, Duann’s copyright assignment contract wasn’t where it was supposed to be. Duann had joined the CU Independent in the middle of the semester, and because of this the University never got around to making him sign the copyright contract. Woops. On Monday, the University finally admitted that Duann owns the copyright, and school officials have promised to “be more stringent” in the future when it comes to making student photographers sign the contract.

And, by the way, the bear is fine too.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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