Copyrighted Standardized Tests: Is There a Fair Use

Jillian Stull
July 7, 2006
This article is published in the Journal of Law and Education [1]
35 J.L. & Educ. 565

I.          Introduction
Standardized tests have evolved in this country as an important way to test the aptitude and progress of students, as a measure of knowledge for entrance into institutions of higher learning, and for numerous other uses.  In the creation and upkeep of such tests, repeated use of each test is imperative to allow creators to determine the validity of each test question.  In order for this process of reuse to take place, the tests must of course remain secure and secret, making it apparent why the copyright of these tests have been asserted.
Copyright challenges to standardized tests have been taking place for some time, but such challenges came to the forefront in Chicago Board of Education v. Substance, Inc.[2] This article will analyze this case and compare it to other cases to demonstrate challenges to standardized tests, and also to demonstrate how the copyright concept of “fair use” has been utilized to protect standardized tests.  The fair use factors, as presented in case law in this article, will be shown to be sufficient to protect copyrighted works and prevent the inappropriate use of such works.[3]

II.        Unfair use and the benefits of copyrighting standardized tests
The validation process is very important for a new battery of standardized tests.[4]  Reuse of standardized test questions is one prominent way of validating the tests.  If performance on the same questions is inconsistent from year to year, this may indicate that selected questions are not well designed and, therefore, elicit random answers.[5]  Since validation depends upon the secrecy of the questions to elicit legitimate results, the validation of tests would be useless if the tests were not kept secure after each administration of the tests.
Publication of standardized tests is obviously a problem because the secrecy of the tests is broken and the validation process cannot take place.  Any questions publicized would thereafter need to be discarded, and the creators of the tests would have to create new questions at an additional expense.[6]  The Court in Chicago Board of Education v. Substance, Inc. argued these exact issues, and recognized the cost of creating these tests and the fact that the tests are worthless if they cannot be reused.[7]
The first two cases that follow will show what served as precursors to Chicago Board of Education.  The Court in these cases used the fair use factors to protect the copyrighted works for future use.  Next this article will present Chicago Board of Education.  The Court in this case prevents the use of the standardized tests to protect the value of their secrecy, which the Court recognizes.  Third, this article will present how the courts have dealt with standardized tests in a case following Chicago Board of Education, which allowed the use of standardized test questions in limited circumstances. Analysis of these cases will allow further exploration of the concept of fair use and what types of uses qualify under this analysis.

Preliminary Cases
Educational Testing Services v. Katzman[8] involved infringement of SAT tests created by the plaintiff by the defendant corporation, which specialized in coaching students in taking the SAT.  This case was one of the early cases to apply the four fair use factors.[9]  These factors include:
1.         the purpose of the use;
2.         the nature of the copyrighted work;
3.         the amount and substantiality of the portion of the work used, and;
4.         the effect of the market.[10]
The court found in favor of the test-makers.  Applying the four fair use factors, the court noted that the purpose of the use was commercial; that the nature of the secure tests meant that any such use was destructive; that the use of the questions was substantial; and that the use of the questions rendered them forever useless to the plaintiff.[11]  The court also required that there be irreparable harm caused by the use of the tests.[12]  The defendant’s use of the questions made them forever useless to the plaintiff, and thus qualified as irreparable harm.[13]  The court noted that the tests are only valuable if they could be reused.
A second precursor to Chicago Board of Education was Salinger v. Random House; in this case, the court ultimately determined that the defendant’s use of plaintiff’s copyrighted letters in a book he was writing qualified as infringement.[14] The court found that using the plaintiff’s letters to enrich the existing story was a proper use.[15]  However, the court gave greater weight to the fact that the letters were unpublished.  The defendant author was using so little of the letters as to leave open the possibility of distortion.[16]
Regarding the effect on the market, the court found that buyers may be deterred from buying the letters, were they ever published, because the interesting portions of the letters may be considered to have been published in the book.[17]  The court gave great weight to the third and fourth fair use factors, which consider the amount and substantiality of the portion of the work used and the effect of the market.  The court found in favor of the plaintiff, preventing the use of the letters in the defendant’s book.[18]

Both courts in Educational Testing Services[19] and Chicago Board of Education[20] try to protect the standardized tests so that the tests are valuable for future use.  The courts obviously see the utility of validating standardized tests and include this rationale in the protection of these copyrighted works. The fair use factors further this intention by allowing the court to delve into the reasons for the use of the tests, and to invalidate the uses if they do not qualify as “fair” under the court’s reasoning.  This necessarily involves a case-by-case analysis of each purported fair use, but is protective of the works of authors to such an extent as to make the creation of standardized tests remain worthwhile.
The court in Salinger used the fair use analysis to once again strike down the use of the copyrighted work.  This case is another illustration of how the court uses the fair use factors in other contexts to protect copyrighted works.  The analysis of the court is much the same as when use of standardized tests are being evaluated, and one can see how the court grasps the unique nature of the cases and gives ample reasons to support its decision to disallow the use of the copyrighted material.  The court thus remains true to the purpose of the copyright laws: to protect the unique works of authors so as to encourage further original work and to bolster its profitability and usefulness in the marketplace.  The fair use analysis has become invaluable in allowing courts to uphold this purpose in cases which come before them.

Chicago Board of Education v. Substance, Inc.
The issues of copyright infringement of standardized tests came to the forefront in Chicago Board of Education v. Substance, Inc.[21] The Chicago Board of Education had created and copyrighted a series of standardized tests that it called the “Chicago Academic Standards Exams (CASE).[22]  These were secure, nonmarketed tests administered under supervision at particular centers on specific dates.[23]  To assure the security of these tests, all copies were accounted for after each test and either destroyed or returned to restricted locked storage.[24]  Each test administration involved the creation of tests from the pool of questions created by the Board of Education.[25]
The protection of these tests was put in jeopardy in January 1999, when Schmidt, a Chicago public school teacher, published six of the tests given in January 1999 because he thought them to be deficient tests and believed that he could best demonstrate their lack of quality by publishing them in full in a newspaper geared toward teachers, of which Schmidt served as editor.[26]  Schmidt asserted in his defense that this was a “fair use” of the tests.[27]  Thereafter, the Chicago Board of Education brought this suit for copyright infringement against Schmidt and Substance, Inc., a corporation that owned the newspaper in which Schmidt published the tests.[28]  Schmidt appealed from the “Final Judgment Order” entered in January 2003, which awarded the Board of Education $500 in damages.[29]
The Court in Chicago Board of Education found for the Board of Education, applying standard copyright laws to standardized tests.  Federal copyright is available for an unpublished work never intended to see the light of day.[30]  The Court held that there is no per se rule against copying an entire copyright work, if necessary.[31]  The general standard for determining whether alleged copyright infringement is “fair use” is that the defendant must copy no more than is reasonably necessary to enable him to pursue an aim that the law recognizes as proper.[32]  The Court noted that copyright should not be the means by which criticism is stifled with the backing of the courts, but also noted that “[i]f Schmidt wins this case, it is goodbye to standardized tests in the Chicago public school system.”[33]
Chicago Board of Education is an important decision in the realm of standardized tests, since it upheld their security and explained the necessity of such security.  This case stands as a bold illustration of the fair use analysis and the efforts of the courts to protect standardized tests.  This decision set the stage for other challenges as to what is “fair use”.

III.       Fair use of copyrighted standardized tests exists, and can be advantageous, depending upon the circumstances.
Newport-Mesa Unified School District v. State of California Department of Education, 371 F.Supp.2d 1170 (C.D.CA 2005), followed Chicago Board of Education, and is an example of the courts applying the fair use analysis and actually upholding the fair use of copying standardized tests.  In Newport-Mesa, the court evaluated whether the release of standardized tests to parents of special education students violated the copyright of the tests.  California Education Code required California school districts to provide the parents of special education students with a copy of the copyrighted achievement test protocol upon request, and a California school district failing to do so was found by the state Department of Education to be out of compliance with the code.[34]  The Department of Education ordered the California school district to revise its policies and procedures on student record requests.  The school district thereafter brought an action requesting declaration of its rights under copyright law and an injunction to prevent the Department of Education from enforcing its compliance report.[35]
In this case, the court held that the fair use doctrine provides an equitable analysis of copyright claims.  It permits and requires courts to avoid rigid application of a copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.[36]  The court thereafter outlined factors to be considered under the “fair use” doctrine, noting that the fair use analysis is not to be simplified with bright-line rules, but instead requires case-by-case analysis.[37]  The court ultimately held that noncommercial uses that broaden a mentally handicapped person’s understanding of his/her academic performance and how it could be bettered can be considered fair use.[38]
Unlike Chicago Board of Education, this ruling allowed the use of the tests, but the use of the tests is quite a bit different.  The court distinguished between publication of an entire test to show its deficiencies and allowing the parent of a special education student to see the test his/her child took to help the child ascertain problem areas, or to just be aware of the type of material on which the child was being tested.  The court saw greater utility in allowing the tests to be used in this manner.  The court listed various reasons that allow this fair use. The purpose and character of the use was for a nonprofit educational use and not for commercial gain.  The test’s questions and answers were only provided to inform each respective parent of his/her child’s progress.  Only portions of copyrighted tests identifiable with the individual student were copied for parents.  No substantial risk existed of widespread public access or adverse market effect.  An important aspect to the Newport-Mesa case is that it outlines some of the important factors to consider in the case-by-case balancing of the fair use analysis.

The fair use analysis, following the fair use factors outlined in Newport-Mesa, is a sufficient safeguard for standardized tests, which should be protected as copyrighted works rather than allowed to be used for insincere uses such as that in Chicago Board of Education.  Per the four fair use factors outlined in Newport-Mesa and other cases, one can identify unfair uses of copyrighted works through violation of these factors.  Chicago Board of Education is the most notable example of an invalid use of standardized tests because of the amount and substantiality of the portion used.  Publishing six tests in their entirety violates this factor and is illustrative of the negative effect such use could have on the market, since the tests must through their nature remain confidential in order to retain their value.  Though Schmidt argued that the purpose of the use validated his conduct, this was not weighty enough to outweigh the other factors in favor of protecting the copyrighted work.
Various fair uses make it possible for copyrightable works to be mobile to an extent while still protecting the ideas of the author.  One concept of fair use requires that there be a substantial or material appropriation of the work.  This has the effect of allowing several different fair uses of copyrighted works.[39]  For example, in Alexander v. Irving Trust. Co., a case alleging infringement of copyright from a biographical article into a biography of the same individual, the court found that when comparison of the works shows that the disputed work was sufficiently independently created, no copyright infringement exists.[40]
Public policy may also be a consideration in the fair use analysis in addition to the four factor fair use analysis.  When the court in Rosemount Enterprises, Inc. v. Random House, Inc.[41] considered whether the privilege of fair use may justifiably be applied to particular materials, the court held that it turns initially on the nature of the materials.  The court looked at whether the distribution of the copyrighted materials at issue would serve the public interest in the free dissemination of information and whether their preparation requires some use of prior materials dealing with the same subject matter.  The court went on to say that it matters not whether the author wrote the work with the intention of economic gain; the court held that this has no bearing on whether a public benefit may be derived from such a work.[42]
Public policy may have also been a consideration in Eggers v. Sun Sales Corp.[43]  Here, the court held that use of an un-copyrightable portion of a public doctrine is not protected by the Copyright Act.  Well founded public policy, held the court, allows that public doctrines should be read by the public, therefore justifying the preclusion of copyright protection to such works.[44]
Some opposed to the fair use principle argue that all copyrighted work should be strictly protected from reuse so that the author may be protected and encouraged to continue writing.  Author Emily Campbell specifically addresses standardized testing in her article “Testing” the Copyright Clause: Copyright Protection for Educational and Psychological Tests.[45]  She argues that “[i]n order to protect authors’ investments and provide incentives for the creation of such tests, tests should be given a broad scope of protection.”[46]  This argument, while valid, should not be taken to mean that such tests can never be used.

IV.       Conclusion
As long as standardized tests are used they will need to be protected.  Creators of such tests have been consistently protected in the courts from unfair uses of their tests that threaten the marketability and vitality of the questions created.  Courts also recognize, however, that some fair uses exist, and have created the fair use standards to allow for some uses of the tests, as illustrated in the aforementioned cases.  As used in the cases, these fair use standards seem to be an excellent way for the court to maintain a balance in the use or non-use of standardized tests – the court recognizes the utility of using the tests in some contexts, but also recognizes why the tests should not be used and protects the tests when necessary.  Thus, as the fair use standards exist in courts today, they serve as an adequate safeguard, and should remain the appropriate test to protect standardized tests.

[1] The Journal of Law and Education is one of two law journals produced at the Louis D. Brandeis School of Law at the University of Louisville.  Special thanks to Editor in Chief: Maria B. Altmann.
[2] 354 F.3d 624 (7th Cir. 2003).
[3] 371 F. Supp.2d 1170 (C.D.CA 2005)
[4] Id. at 627.
[5] Id.
[6] Id.
[7] Id.
[8] 793 F.2d 533 (3rd Cir., 1986).
[9] 17 U.S.C. §107 (2005).
[10] Educational Testing Services v. Katzman, 793 F.2d 533, 543 (3rd Cir., 1986).
[11] Id. at 28-29.
[12] Id. at 29.
[13] Id. at 30.
[14] 811 F.2d 90, 100 (2nd Cir. 1987).
[15] Id. at 97.
[16] Id. at 96-97.
[17] Id. at 99.
[18] Id. at 100.
[19] 793 F.2d 533 (3rd Cir. 1986).
[20] 354 F.3d 624 (7th Cir. 2003).
[21] 354 F.3d 624 (7th Cir. 2003).
[22] Id. at 626.
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] Id.
[28] Id. at 625.
[29] Id.
[30] Id. at 627.
[31] Id. at 629 (citing Sony Corp. of American v. Universal City Studios, Inc., 464 U.S. 417, 449-50 (1984); Ty, Inc. v. Publications International Ltd., 292 F.3d 512, 521 (7th Cir. 2002); Sega Enterprises Ltd. V. Accolade, Inc., 977 F.2d 1510, 1526 (9th Cir. 1992)).
[32] Id. (citing Ty, Inc. v. Publications International Ltd., 292 F.3d 512, 521 (7th Cir. 2002); Kelly v. Arriba Soft Corp., 336 F.3d 811, 820-21 (9th Cir. 2003); Sundeman v. Seajay Society, Inc., 142 F.3d 194, 206 (4th Cir. 1998)).
[33] Id. at 630-31.
[34] Id. at 1173.
[35] Id.
[36] Id. at 1176.
[37] Id.
[38] Id. at 1177.  See Sony Corp. of Am. V. Universal City Studios, Inc., 464 U.S. 417, 455 n. 40, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984).
[39] 23 ALR3d 139.
[40] 132 F. Supp. 364, 369 (DC NY 1955).
[41] 366 F.2d 303, 307 (CA2 NY 1966)
[42] Id.
[43] 263 F. 373, 375 (CA2 NY 1920).
[44] Id.
[45] 69 Neb. L. Rev. 791, 840 (1990).
[46] Id.