Understanding the “First Sale Doctrine”
In my post on Copyright Basics, I mentioned that copyright covers the right to copy, distribute, sell, or publish a work. The so-called first sale doctrine places some limits on those rights. In particular, it places what I would common sense limits on the right to sell or distribute the work, without really modifying the right to copy or publish the work.
The first sale doctrine finds its basis in statute. It has some specific wrinkles that I won’t get into here because…chances are they won’t matter for the vast majority of people. We’ll touch on the things that are most likely to come up.
Why is First Sale Important?
Have you ever checked a book out of a library? Gone to a museum? Sold a book to a used book store? Those things might not be possible without something like the first sale doctrine. If you’ve attended a convention with a manga library, that’s legal because of the first sale doctrine.
What Does the First Sale Doctrine Really Do?
Generally, the first sale doctrine means that if you gain lawful ownership of a specific copy of a work that is protected by copyright, you can dispose of, sell, rent, or lease that copy to someone else. Note that I say “that copy.” You can’t make additional copies to do any of those things and claim protection under the first sale doctrine: the act of copying would still be a violation of copyright. But, for that single copy you have the right to? You don’t need the copyright holder to give you permission to dispose of it, sell it, lease it, or rent it.
You can also “publicly display” the copy (this is very important for, say, museums), either directly (i.e. by putting the actual item out) or by projection of no more than one image at a time. But this is limited to viewers who are physically present at the place where the copy is…it doesn’t apply to, say, online display.
The Supreme Court, by the way, has determined that the first sale doctrine applies even to copies made overseas, as long as those copies were made lawfully, with the authorization of the copyright holder. This was actually brought into question in Kirtsaeng v. John Wiley & Sons, Inc., which I may well get into in more depth later. But for now, just know that copies made overseas, as long as they were lawfully made, are also covered under the first sale doctrine.
Limitations
A couple notes: first sale only applies when you’ve actually acquired ownership of a copy. So if you’re renting the copy, or acquired it on loan, you may still need the authorization of the rights holder. There are also some weird rules around sound recordings (specifically, musical works) and computer programs. Generally, you can still sell them, but you can’t rent them for profit (but things like libraries CAN loan them out).
There are also some limitations that apply to works protected by the Visual Arts Rights Act. As long as you’re not actually DESTROYING the work, you don’t need to worry about this. So, you know, don’t destroy visual arts works willy-nilly if you’re unsure…if you’re not sure, and you really want to destroy a work of visual art for some reason, ask a lawyer to look into it!
