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Bosch v Ball-Kell: Faculty May Have Lost Control Over Their Teaching Materials

Jeff Galin, Florida Atlantic University

The case of Barbara Bosch v Susan Ball-Kell and Ronald Rager Not Reported in F. Supp.2d, 2006 WL 258053 (C.D.Ill. August 31, 2006), 80 U.S.P.Q2d 1713 is one of the only cases in federal course since the 1976 revision of the Copyright statutes that directly addresses faculty ownership of teaching materials.  As a result, its findings have important implications for university faculty on issues of work for hire, the common law teacher exemption to work for hire, fair use, and intellectual property policies.  In this short article, I will not lay out the historical framework for these arguments, several of which I address in “Own Your Rights:  Know When Your University Can Claim Ownership of Your Work.”  Rather, I’ll offer enough context to understand the issues raised by this case to highlight its potential impact on ownership and control of faculty teaching materials in American universities.  

Case Background

Barbara Bosch brought a copyright infringement suit against the Susan Ball-Kell and a former university Dean, Karl Rager, based on their unauthorized copying and distribution of her pathology course materials.  In light of the Court's reading of the teacher exception to the work-for-hire doctrine and the history of the University's copyright policy, the Court denied the defendants' summary judgment motion on claims of work made for hire.  The Court also denied summary judgment on a fair use defense so that “all facts and reasonable inferences” could be made in court where they could be fairly judged.  The judge did warn, however, that the plaintiff’s “ability to succeed on her infringement claim at trial is far from clear.”  Summary judgment was not awarded to Defense to Dismiss Contributory and Vicarious Infringement on the part of the former Dean because direct infringement by a primary infringer required additional findings of fact.  Until the fair use claim could be settled, direct infringement could not be establish.  The Court did award summary judgment on Plaintiffs Request for Damages and Injunctive Relief and Intentional Infliction of Emotional Distress. 

While court documents before the jury trial and after are publicly available, a summary of the trial itself is not.  The following analysis is derived from public court documents, several documents collected from the plaintiff, and a personal interview with the plaintiff in the Spring of 2007. 

The full historical details that pressed Barbara Bosch to file suit against Susan Ball-Kell and Dean Karl Rager are worth noting but are beyond the scope of this case summary.  The record represents a story of outrageous treatment of Bosch, which led to a Senate Committee on Academic Freedom and Tenure report that censored the Dean for “interference with a department’s curriculum affairs,” creating “an environment hostile to intellectual enquiry and academic debate,” “attempting to isolate Dr. Bosch physically, by locking her out of her office and other department areas, and by ordering department staff not to communicate with her,” “casual disregard for the tenure system,” and “condoning of the use (and seemingly even of the purloining) of intellectual property of a faculty member for someone else’s use” (13).

Bosch filed for copyright on her pathology teaching materials and later filed a copyright lawsuit Ball-Kell and Dean Rager for materials that Ball-Kell continued to use under her own name after Bosch filed her claim.  Soon thereafter, Bosch resigned her position as Associate Professor and took a position at another medical school.  Before the case went to court, Dean Rager finished his term as Dean and Ball-Kell stopped teaching in the department. The University hired an extremely aggressive law firm to defend the case.  After multiple motions were filed and adjudicated, the case went to court. 

The jury found that Bosch owned two of three documents she claimed.  It also found, however, that the University had a right to use her course materials under fair use provisions.  She filed a motion for a new trial based on bad jury instructions, which was denied.

The University filed for compensation for all court fees of over half a million dollars.  The Court awarded the University half of the allowed fees, $256, 391.25 Not Reported in F.Supp.2d, 2007 WL 2994085 (C.D.Ill. Oct. 11, 2007), an amount on top of what she had already paid her own attorney for several years of legal work.  The case is in the final stages of settlement in March 2008.

Arguments

Two primary arguments concern faculty and their teaching materials:  1) whether Bosch should retain ownership of her teaching materials or whether they belong to the university as work for hire; and 2) Even if Bosch retains ownership, whether the university has fair use rights to them without her permission.

Copyright Ownership of teaching materials or Works for Hire?

The court ruling on “Works Made for Hire” appears to be the most definitive rejection of work for hire ownership in academia to date.  The Court held that "in an academic setting, an employee may be assigned to teach a particular course, but then is generally left to use his or her discretion to determine the focus of the topic, the way the topic is going to be approached, the direction of the inquiry, and the way that the material will ultimately be presented" Bosch v. Ball-Kell, No. 03-1408, 2006 WL 2548053, at 7 (C.D. Ill. Aug 31, 2006).  When the Defendants argued that "these cases apply solely to faculty publications for scholarly review or self-promotion," the Court held that it "does not read the cases that narrowly," but qualified that "Bosch does not rely solely on the case law."  The Court found arguments of Weinstein v. University of Illinois and Hays v. Sony Corporation of America so compelling that it recognized the survival of the common law teacher exemption in the 1976 Copyright Act.  As a result, the Court deferred to language of the UIC Intellectual Property Policy, minutes concerning the implementation of the policy, the Senate Committee on Academic Freedom and Tenure report condemning Dean Rager’s behavior, and the American Association of University Professors Statement on Copyright to determine “legislative intent” of language in the policy.  This evidence proved that the term “class notes” included teaching materials such as course syllabi within the definition of Traditional Academic Copyrightable Works from the UIC IP policy.  This determination convinced the jury that Bosch owned two of the three sets of copyrighted materials that she had registered. 

Fair Use Defense Upheld for Use of Teaching Materials

While Bosch v Ball-Kell may have set a new standard for determining faculty ownership of their teaching materials at universities, its findings of fair use of those same materials has set what may be a new and troubling standard.  The defense asserted that even if the works in question could not be defined as Works Made for Hire, the Defendant’s use of the materials was fair use according to section 107 of the Copyright Act.  In the absence of a trial summary, I piece together below the decision on an affirmative fair use defense from the summary judgment hearing, “Plaintiff’s Motion for New Trial and to Alter or Amend Judgment,” and the Court’s response to combined “Plaintiff’s Motion” and “Defendants’ Rule 50 Motion to Direct Entry of Judgment.”  The jury decided that use of the materials was fair use based on the standard four-part test:

Character

There was no doubt that the works were for educational rather than commercial purposes.  The works were not deemed transformative in any way Cambell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994), citing Harper & Row, 471 U.S. at 562.  In fact, evidence was presented that Bosch’s name was removed from the documents and replaced with Ball-Kell's. In the Plaintiff's Motion for a New Trial or Alter or Amend Judgment, the Court held that in a case like this which concerns educational purposes, "factor one will normally tilt in the defendant's favor." Nixivm Corp. v. Ross Institute, 364 F. 3d 471,477 (2nd Cir.2004), cer. denied, 543 U.S. 1000 (2004).  Summary judgment was not granted concerning “[e]vidence of bad faith conduct or predatory intent” Sony Corp. V. Universal City Studios., 464 U.S. 417, 448 (1984); Weissmann v. Freeman, 8a68 F.2d 1313, 1323 (2nd Cir. 1989).  Bad faith was not found, however, at trial.

Nature

The works in question were found to be largely factual and scientific in nature rather than creative, despite the fact that fair use “has not been traditionally recognized as a defense to charges of copying from an author’s as yet unpublished works” Not Reported in F. Supp.2d, 2006 WL 258053 (C.D.Ill. August 31, 2006), 80 U.S.P.Q2d 1713  

Amount

Defendants contended that their use of teaching materials was deminimus and insubstantial, amounting only to 21 pages.  This claim proved convincing because ownership to the third set of materials was awarded to the University by the jury.  Despite the fact that Bosch’s former Chair gave her the “General Pathology Course Introduction” with the intent to transfer copyright, the jury was convinced that documents in question were developed by her former Chair “specifically for the University’s General Pathology Course in the scope of Dr. Bartlett’s employment and had been given to students in that course for many years” Defendants’ Rule 50 Motion to Direct Entry of Judgment as a Matter of Law and Plaintffi’s Motion for a New Trial and to Alter or Amend Judgment Not Reported in F. Supp.2d, 2007 WL 2572383 (C.D.Ill. Aug 29, 2007). 

Impact on Market

Bosch contested that the “Court erred in instructing the jury to find in favor of Defendants on factor four of the fair use defense . . .” because “she was entitled to an instruction allowing the jury to determine whether unrestricted and widespread conduct of the sort engaged in by Defendants would result in a substantially adverse impact on the potential market for the original.  Not Reported in F.Supp.2d, 2007 WL 2572383 (C.D.Ill. Aug. 29, 2007).  The Court held that Bosch made no attempt to publish these works, and the Defendants used the works in the same way as Bosch for classroom purposes.  Furthermore, “Bosch fails to acknowledge the fact that there was no evidence produced at trial from which a reasonable jury could have discerned any impact on the potential market or value of the works.  Therefore, the question of harm or market for the works would amount only to “rank speculation.”

Implications for Ownership of Teaching Materials

1) The extraordinary summary of works made for hire, the assertion that the teaching exemption for works in academia survived the 1976 Copyright Act, and the reliance on university intellectual property policies with emphasis on legislative intent make this case a must read for any ownership dispute of teaching materials at a university.  Unless, there are explicit statements in letters of appointment or other official university policies, this case suggests that faculty may typically own copyrights in their teaching materials.  Furthermore, this case reminds us how important it is for us all to read carefully our institutions' intellectual property policies and to know how key terms are defined such as Substantial University Support, Traditional Works of Scholarship, Instructional Works, and Institutional Works (see Own Your Rights for a full analysis of IP policies). 

2) On the other hand, this case alerts faculty that universities may have rights that enable them to use some of our teaching materials without our permission even if we own the copyrights outright.  Some universities have formalized this relationship by "unbundling" intellectual property rights for teaching materials by retaining perpetual licenses for use while faculty retain other rights.  Many programs desire such rights to insure consistency and continuity of academic programs.  This case also suggests that publishing teaching materials, documented plans to use them in research or a textbook, or other demonstration of market value can give faculty greater control of their teaching materials if a dispute arises over them. 

3) It behooves us all to note further the chilling effect this case has on future litigation over these issues.  The emotional, financial, and professional costs of such litigation are devastating.  Universities that threaten litigation can point to this case to coerce faculty into controlling contracts or unfair practices.  Bosch was motivated to pursue her rights, but has paid dearly for them.  It is unlikely that such a case will move through the Federal courts for quite some time. 

For all of these reasons, Bosch v. Ball-Kell may become a landmark case like Weinstein, Hays, and Cambell.  It has certainly provided us with ample reasons to know our rights over our teaching materials.

Works Cited

Galin, Jeffrey.  “Own Your Rights:  Know When Your University Can Claim Ownership of Your Work.”  Composition & Copyright:  Perspectives on Teaching, Text-Making, and Fair Use.  Steve Westbrook and Timothy Hodge Eds.  Albany: SUNY P, (in press).

“Report on complaint against Regional Dean Donald E. Rager (Peoria) by Associate Professor of Clinical Pathology BARBARA D. BOSCH.”  Senate Committee on Academic Freedom and Tenure 12 Apr. 2003.

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