As a copyright owner, you have exclusive rights to your creative works. However, these rights are not unlimited. One crucial limitation is the first sale doctrine, a fundamental principle in copyright law that significantly impacts how copyrighted works can be distributed and resold. Understanding this doctrine is essential for creators, businesses, and consumers alike.
First Sale Doctrine
A copyright owner automatically receives a number of different copyrights when they create a copyright work, these are referred to as the exclusive rights and include the right of reproduction, public display, distribution and the right to prepare derivative works. For some types of work, this also includes the right of public performance. However, when an owner sells a copyrighted work, they lose the ability to control the resale or further distribution of the work. This is referred to as the first sale doctrine. The first sale doctrine, codified in Section 109 of the U.S. Copyright Act, allows the owner of a lawfully purchased copy of a copyrighted work to sell, lend, or give away that particular copy without permission from the copyright owner. This doctrine essentially “exhausts” the copyright owner’s distribution right for that specific copy after its initial sale.
Copyright Exhaustion
The first sale doctrine is a legal concept that limits the rights to control content after a work has been sold. The first sale doctrine states that once a copyright owner sells a copy of his or her work to another, the copyright owner relinquishes all further rights to limit or control the sell or other disposition of their work.
Key Points:
- Applies only to the particular copy that was lawfully sold
- Does not allow reproduction or creation of new copies
- Enables the existence of used bookstores, libraries, and secondary markets
A distinction not always recognized is that ownership of the physical item, such as a book or a CD, is not the same as owning the copyright to the work embodied in that item. Once a copy of your work is sold, you cannot control its subsequent distribution. This means:
- You can’t prevent resale of your books, CDs, or DVDs
- You can’t stop someone from lending or giving away their copy
- Libraries can lend out copies of your work without additional permission
Under the first sale doctrine, ownership of a physical copy of a copyrighted work permits the owner of the item to lend, resell, give away and destroy the copyrighted item, but the owner is not granted the right to copy, reproduce, prepare derivative works or publicly display or perform the work. The transfer of the physical copy does not include transfer of the copyright in the work. This same legal principle applies to tangible items as well as intangible or digital content.
The first sale doctrine allows the purchaser to transfer a particular, legally acquired copy of the work without seeking permission from the copyright owner. The distribution rights of the particular copy of the work terminates once the copyright owner sells the copy. The first sale doctrine however prohibits renting and leasing recorded music and computer software, although private non-profit archives and libraries are allowed to lend these items provided they include a copyright notice on the copy.
Why You Need an Experienced Copyright Attorney
Navigating the complexities of the first sale doctrine requires expert knowledge. An experienced copyright attorney can:
- Help you understand how the doctrine applies to your specific works
- Advise on structuring sales or licenses to maximize control and revenue
- Assist in enforcing your rights against infringement beyond the scope of the doctrine
- Guide you through the evolving landscape of digital rights and first sale issues
Protecting Your Copyrights in a First Sale World
To effectively manage your copyrights while respecting the first sale doctrine:
- Clearly define your terms of sale or license: Ensure your agreements clearly state whether you’re selling or licensing your work.
- Consider alternative revenue models: Explore subscription services or other models that may provide more control than outright sales.
- Stay informed about digital rights: Keep abreast of legal developments regarding the first sale doctrine and digital media.
- Monitor for infringement: While respecting lawful resales, be vigilant against unauthorized reproduction or distribution.
- Consult with a copyright expert: Regular consultations with a knowledgeable attorney can help you navigate this complex area of law.
Take Action to Protect Your Creative Works
The first sale doctrine is a critical aspect of copyright law that balances the rights of creators with the interests of consumers and the broader market. As a copyright owner, understanding and adapting to this doctrine is essential for protecting your intellectual property and maximizing its value.Don’t leave your copyrights vulnerable. Contact our experienced copyright attorneys today for a consultation. We’ll help you develop strategies to protect your creative works while navigating the complexities of the first sale doctrine.Secure your intellectual property rights – reach out to our team now and let us put our expertise to work for you.
If you have questions regarding the application of the first sale doctrine and how it applies to your situation, please contact one of our attorneys.