Should you create resource materials for a textbook to sell commercially?

Q: “Is permission needed from a publisher to develop resource materials for a textbook if those materials will be sold commercially or is it just necessary to have a disclaimer?”

A: Elsa Peterson, a freelance editor with 25 years of experience in the college textbook industry:

“I’ve done a fair amount of permissions editing over the years, which doesn’t equip me to give a comprehensive answer to your question, but I’ll give you my perspective. I think there are a couple of different points to address here.

You plan to sell the resource materials commercially. This means you’ll be in direct competition with the ancillaries that come with the textbook, either free with adoption or for an additional price. The publisher would undoubtedly take a dim view of your competing in this manner, and therefore would be sensitive to any possible copyright infringement you may have committed if you sold your resource materials without obtaining permission. While the textbook’s title and the name(s) of its author(s) are not subject to copyright protection, it’s hard to imagine how you would create resource materials without using any content from the book itself. I think you’d have a hard time arguing fair use if you did use such content — even very brief excerpts of it — for this purpose.]

What kind of disclaimer did you have in mind? Has the publisher/distributor that proposes to sell your resource materials given you a sample disclaimer wording? If so, I would ask an independent attorney to evaluate the wording.”