Legal Question in Intellectual Property in Pennsylvania

An art teacher, of minor age students, gives a class a drawing assignment. The teacher takes photographs of the student's drawings. Must parental consent for a minor be obtained to publish the photographs?

Asked on 2/17/12, 7:59 am

1 Answer from Attorneys

Gerry Elman Elman Technology Law, P.C.

Without researching the subject at this point, I'd answer "probably."

In 1989 the United States revamped its copyright law to comply with the preexisting treaty that most other countries had joined, called the Berne Convention on Copyright. Since then, as soon as a work of authorship that's created in the U.S. is "fixed in a tangible medium of expression," that work is automatically protected by a federal copyright. The Berne Convention specifies that the protection ensues even in the utter absence of "formalities." There need not be a "copyright notice" on the work, and an application for copyright registration need not be filed at the time, and yet the work is subject to "copyright."

Can a minor be an "author" for federal copyright purposes? I don't know for sure, but I'd guess that the answer is "yes." I have had the pleasure of helping a then-minor get U.S. patent 7,050,605 for his invention. And both patent law and copyright law arise from provisions in the U.S. Constitution at article 1, section 8, clause 8.

And if the answer is "yes," would the minor be legally competent to grant someone else permission to publish the copyrighted work? The answer would depend on the status of minors in the pertinent State. If one assumes for the moment that a minor in Pennsylvania wouldn't be competent to do so, then yes, the parent or legal guardian would be the appropriate person to grant such permission.

Other factors might apply. How the pictures are "published" would be such a factor. And the doctrine of "fair use" might excuse certain kinds of publication from being deemed an actionable "infringement" of copyright. And until the copyright for the work is registered with the federal Copyright Office, the owner of the copyright wouldn't have standing to file an infringement suit in court. Another aspect would be that one who takes a photograph of something generally has a copyright in the photograph itself. That copyright would be another layer of legal rights preventing publication, however, not an affirmative grant of "ownership" that would supersede the copyright owned by the creator of the original drawing.

This is a sticky area of law, and the results aren't intuitive. See, for example, Lawrence Lessig's books "Free Culture" and "Remix" for further examples and criticism.

Note that this posting is for discussion purposes only and isn't "legal advice." No reader should rely on it. Consult an attorney to whom you disclose all the facts confidentially.

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Answered on 2/17/12, 8:30 am

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