Can Colorado Public Schools Seek Copyright and Trademark Protections?

When school districts and public charter schools are engaged in developing original educational content and materials, the question often arises – since we are public entities, are we allowed to copyright this? What about a logo, can that be trademarked? The short answer to this question is “Yes.”

Protection of trademarks and copyrights are one of the enumerated powers granted to Congress in the United States Constitution, and are therefore primarily governed by federal law. Federal law specifically prohibits the U.S. government from obtaining or enforcing a trademark or copyright, but federal law is silent with regards to states and state political subdivisions, like public schools (17 U.S.C.A. §105). This silence implies that states are not prohibited from doing so, and therefore may choose to avail themselves of protected copyrights. Each state is able to enact its own laws to address trademark and copyright abilities for its governmental entities, and states have acted differently.

In Colorado, state law specifically allows the state and its political subdivisions, which would include a public school, to obtain and enforce trademarks and copyrights to the extent of federal law, so long as it isn’t for “lists or other compilations” and the public entity may not restrict public access to or fair use of any of the copyrighted material. (C.R.S. 24-72-203(4)). 

Generally, in order to be considered “fair use” the use must be limited to news reporting, teaching, criticism, research, parody or some other “transformative” use (i.e. not the use the copyright was intended to protect). So, for example, if the copyright is on a rubric for evaluating teachers, others could criticize or comment on it, but they cannot lawfully use the document as a rubric for evaluating teachers without the permission of the copyright holder.

We encourage schools that are thinking about seeking copyrights and trademarks for their original works to consider adopting a uniform policy for doing so, and also to address any issues of protecting or enforcing copyrights and trademarks. Please contact our office to further discuss any of these issues, or for any of your other legal needs.