Meredith Davis | Essays

Who Owns Student Work?

A number of years ago, curious about the ownership of student work produced in a class, I asked a lawyer friend who specializes in art and design copyright law if schools had the right to reproduce student work in their recruitment publicity without the students’ permission. He informed me that the student, despite advice from faculty who may have shaped the work, owns the work and that written permission must be secured before it could be reproduced. He also said such works could be considered student records and recruitment results in some benefit to the institution that exceeds any reading of the "fair use" practices of educational institutions (i.e. those that might be applied to the use of lecture slides for a class). 

This reading of the law is at odds with the prevailing opinion of many schools that the student would not have produced work of a particular quality under his or her own resources, and therefore, that faculty have some “ownership rights” in the output of any class. Since that time I have been very careful to ask students first about any public use of their work, even in lectures I give at other schools, and I always credit the work with their names and give students the details on the presentation venues for their resumes. My lawyer friend told me that statements in college catalogs claiming that the institution retains ownership of work produced in a class wouldn’t hold up in court; unless the maker is an employee of the institution/company or has signed away rights through some explicit agreement, ownership is retained by the maker. Other attorneys may have different interpretations, and I don't profess to be a legal expert, but the ownership of work produced by students is certainly something to think about.

Therefore, there are some standard procedures that are advisable when entering into “sponsored projects” and internships that involve current students. First, most universities have something called a “memorandum of agreement,” a document that is less complicated than a formal contract but that lays down the conditions of sponsored collaborations involving students. In many cases, these standard letters have been drafted by legal counsel and intellectual property experts and it is simply a matter of filling in the blanks for the particular project. Although it won't solve problems already in dispute, consulting the legal or grants and contracts offices of the university about such a letter for future projects is recommended. They can help draft one for design services or provide one that is used by other research/outreach units on campus. Student design centers or courses designed to provide work to clients should not operate without one of these letters, even when the work is pro bono. I encourage schools to be consistent in their use, rather than having faculty and students draft their own, project by project (which may leave them outside the protection of the university in the case of disputes).

Second, it is advisable that students always have registration alternatives to a course in which they work for clients and are asked to relinquish ownership of their work to clients or sponsors. That way, a student can meet the requirements of the curriculum without being required to give up ownership of something they produce; they enroll in the sponsored class fully informed of the conditions that apply to the fruits of their labor and make the choice to do so among other viable options. In some cases, projects extend beyond the duration of the sponsored class. In this case, all bets are off on the client/student relationship once the agreed upon course product has been delivered; additional work proceeds under a new freelance arrangement negotiated between the student and the client. This can be made clear to clients before work with the class begins.

If the client comes to the class specifically to engage students, and understands that the students are accountable to another set of evaluation criteria beyond those of service, and proceeds on that basis, it's one thing. But negotiations regarding outcome will be different if the student is working outside the formal academic structure.

For this reason, it is not a good idea to intervene as faculty in negotiations between a student and a client for non-credit freelance work, even when the work is to be conducted with a unit of the same institution. The best practice is to have a standard, published policy regarding how clients access students on a freelance basis and then to leave negotiations to the student and client. For example, saying the department will alert students to freelance opportunities through a website but not get involved in contractual negotiations is a good idea. There are books, such as the Graphic Artists Guild Pricing and Ethical Guidelines to which you can direct students for standard contracts and pricing thresholds (including kill fees), and then step back. And a professional practices class or workshop can identify the issues to consider when entering into an agreement. But as long as all parties know up front that the student is a free agent, there is no damage to the department if a project goes sour and clients will or won't accept the risk of working with a novice. And faculty won't be subject to criticism if student A is paid and student B is not for comparable projects. This practice also makes alumni happier as the resources of the institution (i.e. your explicit professional mentorship) aren't in competition with professionals who can’t possibly win competitive bidding for the same projects.

Imagine you're a teacher directing a student project for a university client (museum, choral society, etc.). The client wants to make changes in the student's design with which both you and the student disagree and has demanded the electronic files. With no prior agreement regarding the nature of responsibilities and risks within the collaboration, you're caught in the middle of a situation with an implied obligation to another unit of your university to deliver services because you agreed to mentor the student, while at the same time siding with the student on the design issues; an untenable position. Had this been a for-credit engagement, you could have outlined a detailed set of conditions that clearly separated the obligation of the educational experience for the student from the delivery of service and allowed the university client to proceed, knowing that it risked a situation in which the student could not sacrifice academic standards in meeting the museum's requirements. But my guess is that the university client proceeded thinking you were there as a professional to ensure a good outcome, whatever they thought that might be. So now you’re caught in a situation in which, legally I suspect, the student cannot be compelled to turn over files for which he/she received no compensation, but which also ethically leaves a worthy non-profit high and dry in executing its project.

There are lessons here for all three parties. There is nothing that prevents a faculty member from informally providing a student with design suggestions on freelance projects, but I suspect this arrangement appears to the university client as an employee-and-her-apprentice business relationship. When disputes arise it is necessary then to negotiate and reach a compromise. The student needs to learn that framing the conditions of work is necessary if he/she is going to withhold delivery at a later date, and the university client needs to understand that if it wants to art direct the solution to the project, it should hire the student as an intern/employee, not as an unpaid freelancer or student scholar.

Posted in: Business, Education

Comments [14]

students, years later, would probably not want to own up to their work, and for good reason. but, it belongs to them. the school, the fraud institution, owns nothing of theirs.
Jonathan Wade

As a student I experienced a situation where an ink drawing/wash of mine, created during an advanced figure drawing class, mysteriously dissapered from the hall where it was displayed among dozens of other student's work.

At first, I thought it was a protest of vandals, being that I was one of the top students in the program at that time.

As a way of expressing my concern, not only for my own work, but that of other's as well, I stood in the Art Department Chair's office until all student work was taken down.... See More

This piece that had gone missing, thr void where it once hung via pushpins, represented to me a point in my own development where I pushed through to a level where I was creating in a very strange, almost altered state, without the aid of any chemicals I might ad(lol).

Deep down in my soul this piece represented a critical shift for me.

I was not "attatched" to the piece as a possession, but as a record of this experience.
The thriil and excitement of having felt this progress firsthand was replaced with shock and mournful thoughts, as if something inside of me had been violated, ripped from my soul.

Several weeks later, the Professor of the class where this piece was created(A well-known draftsman and printmaker in Connecticut) happened to just mention as students filed out... "you all should know that the University has ownership" of all artwork produced on this premise". I turned and looked at him, and in an instant, the mystery was solved. The feeling that up to that point I managed to deal with and keep under wraps... I was coping and healing.

I never confronted the professor, I was confused, flattered, embarassed and honored.

Several years later, having graduated and gone on to work in corporate design firms and promotional agencies I ran into this professor at a local booksale. "Fred... How are you?" "Fine and you?" I muttered. "How is your drawing and painting coming along?" "It's not" I said, "Haven't picked up a brush or piece of charcoal in years" The look of horror on his face was, well, tell-tale in nature. What he had at the time felt was a justifiable act, backed by the University, had ultimately "undone" the progress that I had made in one poorly made decision. To confiscate the work of a student, to not even acknowledge the damage it can cause to a student's drive and motivation is ridiculous. Having never had an opportunity to even photograph the piece, I have no record of it.

It's been about 20 years since this incident took place. I hope that institutions such as the University I attended take a long, hard look at this and other similar policies.

I currently have my own graphic design studio and have had work exhibited at the Society of Illustrators, photograpy published in Photographer's Forum, several national and international Graphic Design publications and exhibited at the Nanjing Art Institue in China.

Notice the lack of fine art drawing or painting in this list of achievements? So do I.

Maybe a trip to PEARL PAINT is in order.

Thank you for the opportunity to heal a bit further.
Fred Caserta

If you think that this problem is bad in Art schools, consider how bad it is in Architecture schools where hard worked on design projects are confiscated by professors, mysteriously disappear, and then somehow appear latter in similar designs by the professors themselves. The question of who owns the work is a copyright dispute, but the claiming of a student's work as your own is criminal fraud. Or at least it should be.
Ahmed Khalil

i would have to say that in architecture schools, the so-called "teachers" actually use their students (the rare ones with a modicum of "talent") as springboards for their own "work," while the majority of the students are just blind followers of their "instructors" or of the latest fashion- decon one day, blob architecture the next, architecture with holes in it the next, and green architecture at the moment.
Mark Gafoor

Fred's story is a convoluted and strange one that ultimately does the Blame Game. Fred should just be a man and do the work that he wants to do, if he can even do it or even did it in the first place, for as most people realize, the school is a worthless institution. Otherwise, keep crying about it and he might make it to the Oprah Show.....
Deborah Kaminsy

Unfortunately, when many schools decide that a legal document is needed, they turn to their university attorney who, like most lawyers, knows little about intellectual property law. What you end up with is a badly-chosen form from a legal fake book. Although I wouldn't suggest using a graphic designer for a lawyer, they'd be better off using one of us to draft the agreement. A competent lawyer and a conversation with someone who has actually thought about the issues would be good but in the compartmentalized world of higher ed, that usually doesn't happen.
Gunnar Swanson

I'm actually in the middle of this situation right now. I participated in a sponsored project at a top tier Design School over a year ago that was quite successful. On the first day we signed away all our rights on a very simple piece of paper that basically said the school owns the work because they're paying for it, and allowing us the opportunity to be there. Even now that i've graduated, i'm finding the project is still getting press and used in promotions which is great right?

The school has been using the project to promote themselves which i suppose is ok, but it starts to get sketchy when we (the students in the class) find out that our work is being written about in magazines, journals, books (usually outside of design) and even being put in exhibitions and no one cares to notifiy us. If nothing else, this is valuable resume stuff and things we the students might want to use to promote ourselves. We shouldn't have to find out about good news by accident.

Its obvious that the marketing department views the work as school property and communicating with the actual content creators isn't that necessary. Its a splash of cold, cynical water to the face that has already given me bad feelings over the school I just graduated from. It makes you feel used instead of being part of something great...which i'll have to remember when they ask me to donate money in a few years.

I too felt ripped off as a student. My answer. I quit.

There are a couple things you can do as a student. First of all what you are learning at school, if you are already talented, is lots of refinement. You aren't learning idea generation so much as that. so keep on with the keeping on, if you are talented, by finding the proper outlet.

Now there seems to be a segment of a certain generation of teachers who feel no regrets, remorse, or repugnance to, lets call it
… modifying student work to earn their keep.

Now, if you, as a student are really good this will all come to pass in a couple years and you will be on your way to bigger and better things. Keep your notes and in years to come you can be featured on paul harvey's rest of the story type reporting. I know that is no consolation now, but age has a way of mellowing things and putting grins on your face. Well, grimaces, too, but that's your choice.

You also have the opportuinity to learn from these rip off artists and change the school system.

What is it about our society that seems that every profession nowadays is simply infected with deadbeat ingenuity. Hoarding seems to be all they can do. Did these people use up their creative allotment in life while tripping out ( i am not making any moral judgements about that) and having intense creative sessions in their youth and now they feel dried up?

You read quotes like "love is infinite". I always add to myself that creativity is not. It is finite. Pace yourself accordingly, students, and change the world when you are in the teacher position by merging your actions of working at what you do and loving what you do. it takes time but it can happen.

Oh, how I wish this article were around when I was in design college in the 1970s. Off all the projects I completed, only my interior design work was returned (guess it wasn't good enough to profit from). I only have one sketch from my fashion design classes, and never knew what happened to the collections I created. It was a given that the school kept everything.

Now, I view it this way...if my education is funded with my hard-earned money, which pays the teachers salaries, then technically speaking, I become the employer and the teachers the employees. I expect a solid return on my $$$$.

Depends on the school, actually. At the School of Communications Arts in London, the old one, not the new reincarnation that opens soon, we signed contracts whereby the school owned what we produced at school. This was because we worked on live briefs to real clients, and if the clients dashed off with our work and no compensation, the school would take the legal fight for us. Sadly, they actually had to do this a few times.
They could also reproduce our work in ads for the school and such, which was always an honor if your work was picked. The agreement let us use our work how we saw fit (in our portfolios) after graduation, there was a time limit on the schools ownership. Our work never left our desks without our knowledge, there was nothing fishy about this arrangement.

Mr. Caserta,
How do you get out of bed in the morning? Are you able to feed yourself? You are in such a pathetic condition after 20 years? Get over it. Students like you are why so many great teachers get out of the profession.
"At first, I thought it was a protest of vandals, being that I was one of the top students in the program at that time." Your ego is clearly on display by this quote. Do I need to footnote you? Given the fact that you are the top student of a graphic program 20 years ago really means so much!

Mark C.

I would like to make note of this one thing. In the United States and most members of the Berne Convention The only way that you can lose ownership is by signing it away...Explicitly signing it away. I have never , I repeat, never signed any of those agreements. Unless I alter them and they agree to the alteration of agreement. I pay them, I create my own work I am the sole owner of the material created and or performed by me in a fixed and tangible format. Likewise I do not take commissions on a works for hire basis where I give up ownership. I have no loss of income over this if people like your work they will agree to the terms of the personal contract or go elsewhere. I am fine with that. Any of you who have not made it a point to understand the influence of copyright law upon the visual artist or any author artist have done yourselves a dis-service.
Mark Bellamy M.FA. JD.

That was such an interesting and thought provoking article and I am sure that most of us wouldn’t have given this question of ownership a second thought but reading this I totally agree that any work done by the student belongs to them!! Being an online mba teacher, I have never given this a second thought but I have always given the student the credit for any work that he/she has done!! It is not a question of law but giving due credit to the creator of a particular work!!

I agree, a very thought provoking article. Also very thought provoking comments.

Chris mentioned the school's claim that they pay for it. I consider this pure B* on the school's part; I agree with Patriciann. If anything, parents might be able to make a claim for owning the work (at least in part), as in many cases they pay for at least part of it.

I have no problem with a school using a student's work for promotional purposes; but I think the artist should be informed whenever that happens. As for "contracts", signed by a student entering school, I believe that in most cases they would not hold up in court. One-sided contracts, where only one side benefits (in this case the school), are generally considered invalid. The benefit to the student is not his education, S/he is paying for that. I feel that even if the school were to make a claim that the art produced is part of that payment it would still be seen as one-sided, since there would appear to be tangible benefits on the school's side and the students benefits, in receiving an education, are intangible. The only place I can see any wiggle room for the school would be found in the amount of scholarships given the student.

My son, a recent graduate from a top (and very expensive, [aren't they all?]) art school, first told me about this "policy" of the school owning the work when he explained to me why he couldn't license a student work to a non-profit who wanted to use it. I was shocked, hence my running across this article; doing a little research on the issue.

Also, folks, don't be so hard on Fred. I certainly hope that by finally speaking about his loss, he has healed enough to go to Pearl Paint; and get back to the fine art side of his craft. I too was devastated by a teacher's inconsiderateness, although mine occurred my senior year of high school. I have heard that as an artist you have to have a thick skin; well Fred's just wasn't thick enough at that point; and with no one to step forward and encourage him he foundered. I still feel a sense of betrayal when I think about what my teacher did. I've also wondered over the years if it really mattered in my life. I changed majors in college because of it. Would I be in a different place now? Definitely; but not necessarily a better place. He shared the story to make a point about the importance of the ownership of the work, not to whine about it ruining his life. He has obviously had many wonderful achievements, and successes.

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