SAT guide IP question

July 10, 2009 7:27 PM

I need help with intellectual property issues regarding the SAT test prep guide and a digital study guide I am building.

My friend is a professional SAT test prep guru. We're working on a study guide, a digital version of what he does with his clients one on one and in groups. The SAT people have a guide they sell which is essential to effective study for the SAT. We think we can resell the guide as part of the course, but wondering if we can refer to the guide questions as part of our digital course, meaning referring to the copyrighted guide's questions and working through them. How can we figure out what's legally permissible? We know we can talk to an IP lawyer. I'm hoping to get some insight from the hive mind on this.

posted by diode to education (8 comments total)

At first glance, this seems like a clear breach of the 4th point in considering fair use: whether the use harms the copyright holder's market. Unless you're requiring people to purchase a copy of the SAT study guide, you're (al)most certainly beyond fair use.

IANAL, yadda yadda.
posted by Lemurrhea at 7:41 PM on July 10

Reselling the original of (almost, some statutory exceptions) ANY copyrighted article is OK under the first sale doctrine UNLESS you've signed a contract binding you to do otherwise. You'll run into at least two problems without a formal license: (1) you can't make copies to distribute or else you will probably be liable for infringement, and (2) you can't do anything with their copyrighted content that creates a derivative work. The fair use doctrine is an out here, but a weak one.

Talk to your IP lawyer and figure out whether what you're doing presents these problems and others. Digitally reselling copies of College Board's paper guides is almost certainly copyright infringement.

IANAL, but I've written academically about the first sale doctrine in the digital environment.
posted by Inspector.Gadget at 7:42 PM on July 10

Okay, let me restate our question. We're NOT copying the SAT study guide, not reprinting it, not borrowing anything from it. We are creating our own instructional materials on preparing for the SAT and, in part, using the official SAT study guide to illustrate some concepts. We may include the SAT guide in our materials (as resellers) if we do a physical product, or may instruct the student to purchase the guide independently. No copyright breach there.

The issue is whether the materials that we create independently breach copyright when they refer to the SAT study guide. For example, telling the students to look at a question in the official guide and referring to it as a way to illustrate a particular SAT prep issue. Can we reprint a question occurring in the guide, or refer to its content? How could I get a handle on this before seeing an IP lawyer?
posted by diode at 12:06 AM on July 11

You're probably going to want to talk to the publisher here. In general, referring to a copyrighted work, and using cited, reasonable quotations from said work, is not a violation of copyright, but it sounds like what you're doing is really some kind of gloss on the guide. That may be a little stickier. More to the point, even if you're in the right, if the publisher doesn't like what you're doing, they may sue you anyways, and you don't want to have to deal with that.
posted by valkyryn at 6:24 AM on July 11

What you're doing is probably fine, but the SAT people will sue you anyway if they feel like it in order to get you to pay "licensing" fees.
posted by yesno at 6:36 AM on July 11 [1 favorite has favorites]

I can tell you that in Canada, one of the big academic publishers has 150 words as a guideline for citing other academic works - taking less than that is without question fair dealing (analogous to fair use), more gets trickier. Obviously that's per cite, but if you'd be doing that for most questions, even if they buy the guide...

This is one of those situations where the exact technicalities of the field and your actions matter. You'll need an IP lawyer, or if you're going through a publisher, their in-house counsel.
posted by Lemurrhea at 6:40 AM on July 11

I am not your lawyer.

Can we reprint a question occurring in the guide, or refer to its content?

As to the former, I would tend to doubt it. I can't say for sure, but I would think that the questions themselves are copyrightable.

The latter is also probably sticky. The closest case I can think of involved an unlicensed third-party trivia book about the show Seinfeld (ironically, for the purposes of the OP's question, titled "SAT: The Seinfeld Aptitude Test"). The book contained quizzes about Seinfeld episodes with multiple choice answers, and included the "correct" answers. The Second Circuit ruled:

Unlike the facts in a phone book, which “do not owe their origin to an act of authorship,” each “fact” tested by The SAT is in reality fictitious expression created by Seinfeld’s authors. The SAT does not quiz such true facts as the identity of the actors in Seinfeld, the number of days it takes to shoot an episode, the biographies of the actors, the location of the Seinfeld set, etc. Rather, The SAT tests whether the reader knows that the character Jerry places a Pez dispenser on Elaine’s leg during a piano recital, that Kramer enjoys going to the airport because he’s hypnotized by the baggage carousels, and that Jerry, opining on how to identify a virgin, said “It’s not like spotting a toupee.” Because these characters and events spring from the imagination of Seinfeld’s authors, The SAT plainly copies copyrightable, creative expression.

It's a bit difficult to see where the answers to the SAT questions would come down. They aren't the same kind of fictional creation that the Seinfeld "answers" are, but nor are they "What's the capital of New York State?"-type answers. So I'm really not sure whether it would be kosher to discuss the official SAT answers.

I wouldn't be surprised if there's been reported litigation about test-prep materials in the past, but I just don't know of any off the top of my head. Which brings us to your main question:

How could I get a handle on this before seeing an IP lawyer?

I'm not really sure that you can. It's good that you are thinking about these issues, but this (to me, at least) is a fairly tricky situation. If you are looking to avoid the expense of consulting with an attorney, it might make sense (from a business perspective) to simply write your own practice questions. I don't want to presume to know your field better than you do, but I'm really not so sure that the "official" SAT prep questions are "essential" to effective studying. I took a good test-prep class many, many years ago, and would tend to doubt that this company licensed official questions from the College Board.
posted by Conrad Cornelius o'Donald o'Dell at 1:02 PM on July 11

Thanks for the replies. That's helpful. We are hoping to sell the official SAT guide as part of our offering, and I think we can probably refer to the question, help the student understand the test trickery involved, and get value from that without republishing the question itself.
posted by diode at 11:15 AM on July 18