By Billie J. Jones, Assistant Professor
The School of Writing, Rhetoric, and Technical Communication
James Madison University
Universities have long known the value of their faculty’s intellectual property, and as a result most outline in detail contractual claim(s) to that intellectual property under the concept of “work made for hire,” particularly that which has been created with substantial use of university resources. Now, as K-12 teachers are beginning to sell their lesson plans and other teaching materials, their districts are coming to realize the value of those materials, and some districts are going to court to lay claim to the proceeds. While the discussion about teachers selling their “lesson plans,” prompted most recently by a November 2009 New York Times article, has been spirited, many of the points made are only tangentially related to the core legal issue, which is whether lesson plans belong to the teachers who created them or the school districts for whom those teachers work.
“The Article” and the subsequent discussion
The New York Times, November 15, 2009, widely reprinted article, “Selling Lessons Online Raises Cash and Questions,” by Winnie Hu, brought widespread public attention to the issue of teachers selling lesson plans (and other teaching materials.) According to the article, sales at online “stores” like We Are Teachers and Teachers Pay Teachers are big business, claiming over 200,000 registered users and nearly one half million dollars in sales during 2008 for Teachers Pay Teachers (TPT) alone. The article goes on to mention individual teachers’ earnings, including TPT’s “top seller, a high school English teacher in California, [who] has made $36,000 in sales” (Hu 2). While this gets at the heart of how much is at stake, in terms of both money and teachers selling rather than sharing their work, it has little to do with the legal question of intellectual property.
Although citing both “legal” and “philosophical” questions, the New York Times article casts the issue as primarily a financial one—one in which teachers are presumably making lots of money—rather than presenting it as an issue dealing with the intricacies of copyright law. At several points the article returns to not only how much money some teachers have made but also how these entrepreneurial teachers spend their proceeds: including in addition to purchasing ”book and classroom supplies, . . . dinners out, mortgage payments, credit card bills, vacation travel, and even home renovations” (Hu). Blogger Lindsay Robertson likens this focus to the way that convicted financial swindler Bernard Madoff’s extravagances have been detailed by the media (“The Times Asks”). If selling lesson plans represents a copyright violation, then the use of proceeds shouldn’t matter—illegal is illegal. However, neither should it matter if lesson plans are the intellectual property of the teachers because the proceeds, like the lesson plans, belong to the teacher to do with as he or she pleases.
In some cases, the courts have ruled in favor of school districts. The 2004 ruling from a federal appellate court in New York held that “‘tests, quizzes, homework problems, and other teaching materials’ were works made for hire owned by the district and that the ‘academic tradition’ of granting authors ownership of their own scholarly work cannot be applied to materials not explicitly intended for publication” (Walker). Consequently with this case in mind, in response to The New York Times article, the National Education Association (NEA), citing legal counsel from their office of General Counsel, wisely warns, “So if you want to sell your lesson plans online, make sure you actually own them” (Walker).
While the question is a legal one: whether lesson plans are the intellectual property of the teacher who created them or they belong to the district as part of “work made for hire,” some of the article reprints and many of the resulting blog discussions ask the question, “Should teachers sell their lesson plans.” The reasons for using other teachers’ lesson plans are readily apparent: these are “class-tested lessons” (Hu), which prevent teachers from having to reinvent the wheel (Jacobs); and at times can serve to fill in knowledge gaps. Some educators will argue for creating one’s own lesson plans as an important intellectual enterprise; however, for many online discussion participants, both in and outside education, it seems only fair that teachers, who are frequently presumed to be underpaid, be able to sell what is believed to be their own intellectual property.
Other seemingly sensible considerations, while not necessarily germane to the legal question, are competing claims that selling lesson plans either serves to further professionalize teaching by placing monetary value on teachers’ lesson plans, or that it serves to cheapen the profession, and put at risk a “culture of sharing” (Wojcecki) among teachers. Citing New York University professor, Joseph McDonald, the New York Times article seems to side with the “cheapening” position by writing “online selling cheapens what teachers do and undermines efforts to build sites where educators freely exchange ideas and lesson plans” (Hu). McDonald continues, “‘Teachers swapping ideas with one another, that’s a great thing, . . . [b]ut somebody asking 75 minutes for a word puzzle reduces the power of the learning community and is ultimately destructive to the profession’” (Hu). In an interesting twist, one blogger, Mike Masnick, implies that by teachers seeing value in “selling” lesson plans they might see more value in sharing them freely online. Masnick writes, “In doing that, you can get better feedback and open a nice discussion among other teachers to share what they all have learned and create a better overall lesson plan that helps everyone out (especially the students).”
In short, while bloggers are quite opinionated on the ethics of selling lesson plans, few really deal with the legal question at the crux of this issue.
“NEA believes that staff should own the copyright to the materials they created for use in the classroom and supports amending the Copyright Act of 1976 to recognize a ‘teachers exemption’ to the ‘works made for hire’ doctrine” (Walker). While working to revise the Copyright Act of 1976 is a good idea, a more immediate solution would be to work through the K-12 districts’ collective bargaining agents to know the districts’ position: if the teacher’s district has an articulated IP agreement, whether it seems “fair” or not, that is the “law.” If the district does not have an IP agreement, according to the Copyright Law of 1976, a teacher selling lesson plans might be met with legal action. Here is probably the best advice, which comes from a blogging teacher, “Work within the system and work to revise the Copyright Law of 1976.”
As with so many other product/processes fostered by, or flourishing, in the digital age, some districts (and teachers) have been caught off guard by the opportunity for sharing—and selling—teaching materials. Teachers have likely presumed that their lesson plans were theirs, and districts likely have not bothered to prove otherwise—until money became involved. However, as teachers have begun to demonstrate that there is monetary value in their lesson plans, some districts have suddenly become more interested in the potential proceeds. Quoting deputy director of the New York State Council of School Superintendents, Robert N. Lowry, the New York Times article claims that it is a resource issue for school districts: “‘To the extent that school district resources are used, then I think it’s fair to ask whether the district should share in the proceeds’” (Hu). Because school districts are interested, teachers need to become proactive in pushing to establish clear intellectual property agreements based on the academic tradition enjoyed by many college and university faculty. And for those of us who may not work in K-12 districts but have ties to them through English Education programs, National Writing Project site work, and other cooperative relationships between K-12 and post-secondary faculty we should support them in their efforts.
- Hu, Winnie. “Selling Lessons Online Raises Cash and Questions.” New York Times 15 Nov. 2009. Web. 10 Mar. 2010
- Jacobs, Joanne. “Teachers Sell Lesson Plans.” Free Thinking and Linking on Education by Joanne Jacobs. 15 Nov. 2009. Web. 10 Mar. 2010.
- Masnick, Mike. “Another Battle: Can Teachers Sell Lesson Plans.” TechDirt. 15 Dec. 2009. Web. 10 Mar. 2010.
- “The Times Asks: Should Teachers Sell Lesson Plans?” NYmag.com. 14 Nov. 2009. Web. 10 Mar. 2010.
- The United States Copyright Office. “Copyright Basics.” Web. 10 Mar. 2010.
- Walker, Tim. “Who Owns Your Work? Probably Not You.” NEA National Education
Association. Web. 10 Mar. 2010.
- Wojcicki, Esther. “Should Teachers Be Selling Lesson Plans?” Huffington Post, 19 Nov. 2009. Web. 10 Mar. 2010.