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I work as a secondary public school teacher in the US. I teach a fairly niche subject, that has few resources for. I am working on writing my own textbook set for this subject area. It will include a textbook, workbook, and teacher's guide. I work on this on my own time during weekends, evenings, summer holidays, etc., but the work benefits my own teaching, as I use the same material in my actual classes.

Someone warned me to check that I won't lost my rights to this work under "work for hire" or "work made for hire".

I checked my contract, district personnel handbook, site-specific handbook, and union collective bargaining documents, but find no mention of them having a right to ownership of works I create while under their employ. Is it still possible that my situation could be considered "work made for hire" under state or federal laws?

Are there any additional steps I should take to check whether I need to worry about my employer taking ownership of the work?

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The best thing to do is ask the attorney for your school district and your union representative or attorney that you are writing a textbook for your subject in your spare time; they will give you a definitive answer on what is "work for hire", what is in your contract and what you can do outside of work and how copyright will apply. The school district attorney is legally bound to give you a factual answer, and the union attorney will protect your interests. Write or email them both with your questions and they will give written answers.

You can also Google "free legal consultation" and you may be able to find a lawyer who will give you his/her opinion as a third party on your contract and book plans, after you get a opinion from the school district and union.

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Ask

As an employee, anything you create in the course of your employment belongs to your employer.

Now, writing textbooks is probably not in the course of a schoolteacher's employment. Note that I said "probably" - it's possible that if you publish and it becomes wildly successful your employer might just want to go to court to check how "probably" actually falls out in practice.

So, the simplest thing is to tell your employer that you are thinking of writing a textbook for your subject in your spare time and would they please disclaim any copyright claim they might have. If they won't, find another employer (or don't write the book).

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  • In what jurisdiction is the work-for-hire rule this broad? Not the United States. – bdb484 Nov 12 '20 at 11:55
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    @bdb484 Work for hire is usually person not employed but specifically contracted to do X. In the case of being employed Dale's statement is the standard. – Trish Dec 4 '20 at 17:19
  • @bdb484 See my answer for the relevant text from 17 USC sec. 101 that defines work made for hire in the US. – David Siegel Dec 4 '20 at 23:07
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In the US, under 17 USC sec. 101 (definitions)

A “work made for hire” is—

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

It appears that (2) does not apply to this question, so the question relates to (1), and thus to the reach of "within the scope of his or her employment".

If writing such a book is no part of the Teacher's assigned duties or job description, is not being or intended to be used in the instruction for which the teacher is hired, and is done outside of working hours, not on the school property, and not using school resources or equipment, it would be IMO hard to sustain a claim that it was "within the scope of employment".

The suggestion in the other answers to ask the school district if they make any such claim is a good idea, in my view. As in writing, keeping a copy (perhaps by email). If a favorable answer is received (that is one that says no such claim would be made) sending a further letter "this is to confirm my understanding that you do not claim ..." would help record the exchange. A short consultation with a lawyer might well be a good idea also.

If the district says that it does make such a claim, then legal advice on how to proceed will probably be required.

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