Court Issues Opinion and Order in Wilder v. Hoiland
In February 2022, Esther Wilder (“Wilder”), from Lehman College of the City University of New York (CUNY), filed a complaint alleging Sarah Hoiland (“Hoiland”), from CUNY’s Hostos Community College, infringed her copyright during a presentation in February 2019.
Wilder alleged that Hoiland had used course materials created by Wilder for a faculty development program, Numeracy Infusion Course for Higher Education (“NICHE”), in five slides of a presentation Hoiland gave at the Community College Conference on Learning Assessment (“CCCLA”). In 2016, Hoiland and Wilder began working together on a new program, Numeracy Infusion for College Education (“NICE”). NICE was meant to adapt materials from the NICHE program, but the NICHE materials were eventually fully incorporated into the NICE program with few changes. As part of her presentation, Hoiland used a 23-slide PowerPoint, of which five slides contained portions of Unit 7H NICHE materials. The slides did not have Wilder’s name on them, but Hoiland testified that she mentioned Wilder by name and gave her verbal credit. Hoiland claimed the presentation was to only 12-20 people.
Hoiland sent Wilder the presentation on August 2, 2019, asking for notes and suggestions, and Wilder alleged that this was when she first learned of the alleged infringement. After a series of emails, Wilder filed a formal complaint with CUNY in March 2020, alleging academic misconduct and plagiarism on Hoiland’s part. The research and integrity officer at Hostos Community College informed Wilder on September 10, 2020, that after a preliminary inquiry, they did not find a formal investigation was warranted. In April 2021, Wilder registered a copyright for the Unit 7H NICHE materials. No other sub-units of the NICHE or NICE materials were registered. Wilder filed an action against Hoiland in February 2022 for copyright infringement. After unsuccessful mediation, both parties filed cross-motions for summary judgment.
The Court granted summary judgment in favor of Hoiland. The main issues the court needed to decide on were Hoiland’s arguments that Wilder did not have a valid copyright to claim infringement, and, if Wilder did have a valid copyright, that Hoiland’s use was a fair use. Because Wilder did not register the copyright within five years of publication, there was no longer a presumption of validity. Though Wilder asserts that she created the NICHE materials, specifically Unit 7H, in 2013, she did not register for copyright until April 2021. The evidence Wilder submitted to establish valid copyright ownership indicated that she actually may not be the valid copyright owner. The court, therefore, denied Wilder’s motion for summary judgment.
As for the affirmative defense of fair use by Hoiland, the court analyzed the four factors. The purpose and character of Hoiland's use of NICHE materials were distinctly different from the original intents Wilder stated. The court found the transformative use and the educational, non-commercial purpose of her use weighed in favor of fair use. The original material was not a fictional work nor necessarily a collection of facts, which also weighed in favor of Hoiland. Focusing on the portion of and its significance to the Unit 7H text, the court found that Hoiland used about ⅔ of the text in her presentation, but she cut out most of what would be considered the “heart” of the work for Wilder’s purposes. However, the third factor does lean slightly in favor of Wilder. Due to the academic context, the market effect the court focused on was any detriment to Wilder’s career in terms of publications, promotions, and incentives. The court found that the use was not likely to cause professional harm, and that there is a limited potential market for the Unit 7H text. In any case, only 12-20 participants briefly viewed the text as part of a slideshow, which would not tend toward substantial market harm.
In short, the court found that Hoiland’s use was fair. Her use was transformative. The purpose was educational and non-commercial. The original work was non-fiction. And, the use had limited to no effect on the market. Though Hoiland did use a large portion, she edited the text to only what was relevant for her transformative purpose. Thus, Hoiland’s use would not constitute a copyright infringement.