SME-Created Material

SME-Created Material


But My SME Wrote It

Although it seems logical that anything your subject matter expert (SME) creates and is willing to contribute towards your course development is free of any copyright concerns, this isn't necessarily so. There are certain guidelines that will govern your use of material created by a SME.

Work Made for Hire

If your SME would like to reuse material that they created within the scope of other employment, you will need to investigate that situation further prior to utilizing it. It could fall under what the Copyright Act calls a "work made for hire" and would be protected by copyright.

Section 101 of the Copyright Act defines "work made for hire":

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. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

To summarize, a work is considered one made for hire when:
  1. An employee creates the material within the scope of their employment 
OR
  1. An independent contractor creates the work that was specifically commissioned by a client and falls within one of the following categories:
    1. A contribution to a collective work
    2. A part of a motion picture or audiovisual work
    3. A translation
    4. A supplementary work
    5. A compilation
    6. An instructional text
    7. A test
    8. Answer material for a test
    9. An atlas
Take special note of the categories involving instructional text and test material. This is the very content that you will likely want to reuse in your course development. 

It is important to ask the SME about the contractual conditions under which they created the material. Their contract should stipulate whether their previous employer owns the rights to any materials your SME created while under contract. If the SME indicates that they are legally allowed to reuse this material, make sure to document this information along with the course locations of the content in case it should ever come under question.

Additional Resources

For further reading about works made for hire, explore the following resources:
  1. Works Made for Hire - Copyright Alliance
  2. Work for Hire: Everything You Need to Know - UpCounsel

    • Related Articles

    • Licensed Materials

      What About Licensed Material? You've learned that the creators of content are automatically granted copyright protection when the work is fixed in a tangible form of expression. These creators can grant usage of their material through licensing, ...

    • Fair Use

      Introduction to Fair Use If you've worked as an instructional designer for any length of time, you've likely heard a SME cry "Fair use!" while justifying use of copyrighted material without permission. "Fair use" refers to a doctrine within copyright ...

    • Captioning Guidelines

      Video is defined as a visual presentation with moving images. These can be live action or animation. Video does not include a narrated slide (PowerPoint) or Storyline presentation of static images (see Presentations With Audio for more information). ...

    • Transcription Guidelines

      Basic, descriptive, and indexed transcripts are text-based documents for speech in an audio track. Transcripts provide a media alternative for people with hearing loss. Basic transcripts are adequate for speech-only presentations, such as podcasts. A ...

    • Accessibility Overview (Talking Points & Examples)

      What is accessibility? When we say something is accessible, we simply mean that people with disabilities can use it. Specifically, they can 1) perceive, 2) understand, 3) navigate, and 4) interact with it. What does accessibility look like? ...