Art Show+! Copyright Considerations of Display and Use of Minor Student Work
Submission Date
Question
We are reviewing our copyright policies and procedures at our BOCES. We are specifically reviewing student work. We understand, recognize, and respect that students hold the copyright to works they create. Our student community includes, but is not limited to, students with exceptional learning needs, behavior concerns, and our Career and Technical Education High School. Sample items of student work may include, but not limited to, writing pieces, artwork, metal working projects, carpentry projects, cake decorating, and hair design. We often use student works to decorate the hallway/classroom, highlight best practices, promotional materials, social media postings, BOCES and Component District publications, general communication home, curriculum writing, plus many other examples.
We want to ensure we are legally and ethically using the student work correctly.
- Are we allowed to use the student work unless the parent/guardian submits an opt out request? The opt out request would be included in a parent packet sent home. This would be similar to our use of student images policy.
- If a parent/guardian permission form is required, is there a distinction between displaying student work in the hall/class versus district publications versus social media?
As always, THANK YOU for all the work and dedication you do on behalf of libraries and schools! It is appreciated.
Answer
Thank you for your kind words. We’re going to address this question in three chunks:
- Displaying Student Work (putting the work in hallways);
- Using Student Work (in “promotional materials, social media postings, BOCES and Component District publications, general communication, curriculum writing, plus many other examples”); and
- Solutions (because that is what is requested).
Displaying Student Work
Just last week, I went to my 11-year-old daughter’s art show at her school, where two works (a collage and a self-portrait) were on display with the work of other students grades 5 through 8.
I watched as the students and their families looked over their work, praising, critiquing,[1] and learning together. The art teachers were there, smiling and commenting.
I knew from my daughter that the students had been working on their submissions all year and saw this show as the culmination of a long learning experience.
It sounds like the students referred to in this question are getting a similar benefit. The display is not mere decoration; it is part of an educational experience that teaches creation with an aim to display. I imagine that often, this connects to many learning outcomes in the curriculum.
When display of the work is part of the educational experience, no permission is needed to display the work, because subsection (1) of Section 110 of the Copyright Act allows it.
Section 110 of the Copyright is a broad collection of exceptions to copyright infringement, often in excess of what is allowed by Section 107 (“Fair use”). An excellent commentary on the rights created by 110 can be found here, in the “Notes” tab: https://www.law.cornell.edu/uscode/text/17/110.
For people who want extra credit, I encourage reading the full “Notes” at that link, but for the current question, what’s important is that 110 (1) says:
Notwithstanding the provisions of section 106, the following are not infringements of copyright:
(1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction...
While generally this refers to the work of third parties (like reading a poem by Marquis Burton during a class on poetry), it does apply to student work if the culminating experience of the work being on display is part of the educational experience.
Of course, just because something is legal doesn’t mean it is appropriate; as the member’s question points out, the school wants to empower and respect the students, not outfox them on an obscure point of copyright law.
To ensure awareness and respect, schools use opt-in and opt-out forms, as mentioned in the question.
Which brings us to the next part of the question.
Using Student Work
Every single example here (promotional materials, social media postings, BOCES and Component District publications, general communication, curriculum writing) requires written permission of the author,[2] without exception, and when the author is a minor, permission of their parent or legal guardian.
This is where the “opt-in” form mentioned in the question is a great tool.
My favorite thing about this type of form is not that it is used as a mini-contract to get appropriate permission to use student work[3] but rather that it can be used to educate students on their rights as a creator and copyright owner, which brings us to...
Solutions
Below is sample language[4] for a form securing permission to use student work in various media and educating students and their families about their rights.
[Letterhead]
[Date]
Dear student and family:
Our [type] display of student work is approaching!
This form is for two things: display of student work at the show and use of student work in other places.
Please review it carefully and send it back in by DATE.
DISPLAY AT THE SHOW
As a student creator, a student owns the copyrights to their work. Just as important, both state and federal law protect student privacy.
Our [art show/course/class] will allow students to participate in the full experience of creating and displaying creative work.
Because students have the right to control their creative works and have a right to privacy, if a student wants to OPT OUT of the display of their work, they may do so. Otherwise, because this is an educational experience, the work will be displayed, and we will have a show on DATE. Students will not be penalized for choosing not to show their work.
To opt out of their work being displayed, the student can check the below section. It is not necessary to return a signed form in order to participate in the [show/display].
[ ] I OPT OUT of my work being displayed at the school. I understand I will not be penalized for this choice, and I know I can change my mind.
Signed by student: _______________________________
Acknowledged by parent:_______________________________
USE OF YOUR ARTWORK
Because your work is special, the school and our BOCES would like to be able to use it in promotional materials, social media postings, publications, general communications, curriculum writing, and in other places. We will credit you as the student artist!
If you consent to this use of your work, please sign the release below.
STUDENT: I consent to the use of my work in different places.
Signed by student: _______________________________
PARENT/GUARDIAN: On behalf of the student, I also consent to use of their work in different places by the school and BOCES.
Signed by parent:_____________________
To the student: please know that once you are 18 years old, you can revoke this permission at any time; just send the school a note, and if the image is still being used, we will stop using it from that point on.
Thank you!
Conclusion
I know that form is A LOT, but the good news is that if it isn’t returned, it simply means the student’s work is in the show, but they haven’t given permission for it to be used in any other ways.[5]
The experience of preparing creative work for display can be a key educational experience. Using those moments to educate students (and their families) about their rights can enhance their learning experience and empower them.
While copyright can be obscure,[6] experience shows that students who must contend with challenges in life—exceptional learning needs, behavior concerns, etc.—may end up being powerful generators of intellectual property. Students going into trades after career and technical education are very likely to become small business owners and will benefit from learning, early on, that they will own their business names,[7] any designs they might prepare for work,[8] and other work they author as they conduct their business. Early education on these concepts will help them for decades after.
Of course, the member who sent this is knows all this, which is why they asked such an important and thoughtful question.
Thank you!
[1]^ “Critiquing”, as in “Ah, you used a chiaroscuro effect,” not as in “Oh, the New York Times is gonna trash this derivative drivel.”
[2]^ I am using “author” as it is used in the Copyright Act, which means “the person who created the thing.” This is true even though “artist,” “composer,” “poet,” “writer,” etc. are used for creators of a specific type of work.
[3]^ You’d think this would be my favorite part, and a well-written contract IS a beautiful thing. But wait, there’s more!
[4]^ New York’s regional BOCES have excellent legal teams and policy support staff who can assist with review and finalizing a form, so it is within your school’s risk tolerances. You can share this answer with them as a starting place (hi, BOCES legal team!).
[5]^ If the work is being included in a report to NYSED or an accreditor for assessment purposes, that is likely “fair use.” Although fair use should be confirmed on a case-by-case basis, the factors should support this. Just remember to document the analysis per your school’s “fair use” policy.
[6]^ But is it? It boils down to: “You create it, you own it. You own it, you control it. There might be some exceptions.” Simple, right?
[7]^ Okay, that’s trademark, but once someone starts learning about intellectual property, it’s a slippery slope.
[8]^ For example, certain types of hairstyling and make-up might even qualify as a “work,” as do videos and images of the hairstyles and makeup.
