When I was in film school many years ago, a rumor developed that the school owned the films we made there, stripping us of our hard-earned intellectual property.
The students got angry, and some of them marched to the dean’s office to announce they would not let their work be co-opted.
After hearing them out, the dean informed them that the rumor was false. The only right claimed by the school was the right to use student work to promote the school in online or print media. It could not, in other words, sell student work for profit, modify it without student consent, or influence its creation in any way. Needless to say, we were all relieved.
The truth is, though, the law allows schools to assert ownership over student work, even if some schools, like mine, choose not to. For example, University of Southern California has just such a policy. Any film made by a student over the course of his or her education and made with university resources will be wholly owned by the school. For USC students, this not only means loss of ownership, it also means the university can use the work for any reason it sees fit, such as marketing the university, holding for-profit exhibitions of student work and even selling copies of student films. In exchange for those rights, the university provides students with errors and omissions (E&O) insurance, use of the school’s SAG connections to hire actors, and revenue sharing if a film becomes profitable.
Across the spectrum (and country) from USC is New York University. Under NYU’s policy, all intellectual property is retained by the student, as is any income made from distribution of that work. In exchange for total ownership, students grant NYU the right to use their work to publicize the school.
The type of policy a school promulgates depends on a variety of factors—things like political will, any state or local laws addressing the issue, and the potential monetary value of the work. When you think about all the famous people who’ve come out of USC— George Lucas, Ron Howard, Robert Zemeckis and Judd Apatow, to name just a few—you can see how the school’s current policy formed. From a profitability standpoint, owning the academic work of a now-famous alum is just good business.
So how are policies like this legal? Well, for starters, there are no major laws, federal or otherwise, prohibiting such a thing. And in fact, some school districts have tried using the “work for hire” doctrine (with little success, I might add) to pass laws allowing schools the absolute right to take ownership of and manage student work. Second, there’s been so little litigation on this topic that court opinions are few and far between, making it hard to know where common law stands. And lastly, it’s just the nature of contract law. And make no mistake, when you enroll in an institute of higher education, you are engaging in a contractual relationship with the school. The agreement you sign covers a host of regular issues, from student behavior to academic matters. But they also extend to arcane ones like student IP. And with few exceptions (for example, contracts promoting criminal or sexual behavior), most subject matters are within legal bounds for contract, and that includes student copyrights.
Contracts that overwhelmingly favor one side are unenforceable, which is why USC’s copyright policy doesn’t merely strip student ownership away, it also conveys substantial benefits. It’s why NYU gives up ownership for the right to use student work to promote itself. All contracts are about giving up some rights in exchange for others. You see this kind of thing especially at research universities where patents for biotech and medical innovations are increasingly lucrative. The university will take part or full ownership over the patent in exchange for resources, facilities, credit and shared revenue.
So this is all completely legal. But that doesn’t mean you can’t be vigilant about it. If you’re about to enroll in a university, you may want to check out its student IP policy, many of which are now posted online. And let’s say you come across a student IP policy you find particularly onerous. There are some steps you can take to mitigate it, if you’re so inclined.
- Talk to a lawyer first. A policy that may seem burdensome at first may not be as bad as you think, so consult someone who knows what to look for.
- Talk to the administration and see if they’ll work with you over ownership of your work. While these policies are frequently set in stone, you never know what you’ll be able to get just by asking.
- Vote with your dollars. If you have the option, enroll in a school that closer matches your value system.
Last but not least, have some perspective. Your student films, good as they may be, will likely have little monetary value to anyone (including the school) except you after your education ends. Learn as much as you can, and when you graduate, take that education and apply it to new work that’s bigger, better and—hopefully—more profitable. The school won’t be able to touch it then. MM
This article appears in MovieMaker‘s Summer 2017 issue. Illustration by Patrick Maxwell.
Gregory R. Kanaan, Esq. is a New England-based attorney representing artists, filmmakers and designers in Massachusetts and New York. His practice focuses on entertainment and art law, as well as intellectual property issues. He has resolved disputes involving copyrights, publicity rights, trademarks, and contractual disputes for a wide range of independent filmmakers and design professionals. Prior to becoming an attorney, Mr. Kanaan was a television producer, creating documentaries and series for The Discovery Channel, Court TV, TLC, and A&E, among others. When not practicing law, Mr. Kanaan writes for his blog, The [Legal] Artist, which aims to educate creative professionals on the legal issues that affect them most.
The answers to legal questions provided here are for general education and information purposes only, and are not legal advice or legal opinions. The information provided in this article is not intended to create a lawyer-client relationship between Mr. Kanaan and a reader.