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|First Sale Doctrine|
Last Updated - February 10, 2010
The first-sale doctrine is a limitation upon copyright that was recognized by the U.S. Supreme Court in 1908 and subsequently
codified in the Copyright Act of 1976, 17 U.S.C. § 109. The doctrine of first sale allows the purchaser to transfer (i.e. sell
or give away) a particular, lawfully made copy of the protected work without permission once it has been obtained. That means
the distribution rights of a copyright holder end on that particular copy once the copy is lawfully transferred.
It is the principle that causes people to find the following example absurd:
"If you purchase a Ford car, you may not drive it near a Chevy dealer, or trade it for a Chevy, because it was Ford's car."
Originally (back in 1909), the codification applied to copies that had been sold (hence the "first sale doctrine"), but in the 1976 Act it was made to apply to any "owner" of a lawfully made copy or phonorecord regardless whether it was first sold. So, for example, if the copyright owner licenses someone to make a copy (such as by downloading), then that copy (meaning the tangible medium of expression onto which it was copied under license, be it a hard drive or removable storage medium) may lawfully be sold, lent, traded or given away.
The doctrine of first sale does not include renting and leasing phonorecords (recorded music), does not include renting and leasing tapes and/or DVDs of movies, performances, and television shows, and certain types of computer software, although private non-profit archives and libraries are allowed to lend these items provided they include a notice that the work may be copyrighted on the copy.
In 1908, in Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908), the first-sale doctrine was established. In a later opinion (Quality King v. L'Anza), the Court described this opinion:
"In that case, the publisher, Bobbs-Merrill, had inserted a notice in its books that any retail sale at a price under $1.00 would constitute an infringement of its copyright. The defendants, who owned Macy’s department store, disregarded the notice and sold the books at a lower price without Bobbs-Merrill’s consent. We held that the exclusive statutory right to vend applied only to the first sale of the copyrighted work..."
In 1998 in Quality King Distributors Inc., v. L'anza Research International Inc. 523 U.S. 135 (1998)  there was a
unanimous Supreme Court ruling in a case involving distribution of hair care products bearing a copyrighted label. The Supreme Court found
that the doctrine does apply to importation into the US of copyrighted works (the labels) which were made in the US, then
exported. This is significant for grey market imports of software, books, movies or other copies of copyrighted works, where
the price outside the US may be lower than the price inside. The importation of goods first manufactured outside the US under
the copyright laws of other countries was specifically excluded from that decision, leaving undecided whether goods "lawfully made"
under the Copyright Act but made outside the United States also benefit from the first sale doctrine. Until that is decided, copyright
holders are free to take action against foreign distributors who sell products made in their region into the US market.
Nonetheless, if in the act of reselling the goods, the reseller alters or modifies the product to such an extent that a "material difference" exists, then the trademark owner may refute the first-sale doctrine and bring an action to protect his mark. In such a case, he would rely upon 15 U.S.C. Section 1114.
Court cases involving the First Sale Doctrine and selected comments from them:
Articles | Cease and Desist Letters | Federal Court Cases | FAQs & Whines | Glossary | Hall Of Shame | Contributions
Initial Interest Confusion |
Likelihood Of Confusion |
Material Difference Standard
Parallel Imports | Post-sale Confusion | Puffery | Secondary Meaning | Subsequent Confusion | Trademark Abuse
Unauthorized Use | Unfair Competition | What is a Trademark?
Angel Policies |
Contributory Infringement |
Copyright Extortion |
Copyright Misuse Doctrine |
The Digital Millennium Copyright Act
EULA | Fair Use | First Sale Doctrine | Product Description | Registration | Registration Denied | What is a Copyright? | What is not Copyrightable?
Embroidery Designs |
FAQs & Whines |
Image and Text Theft |
Licensed Fabric |
Licensing & Licenses |
Patterns Index |
Selvage | Stanford School of Law Case Outline | Tabberone Disclaimer | Trademark Extortion | Urban Myths | What To Do If You Are Veroed
Federal Court Cases |
Alphabetically | by Federal Circuit | by Subject | by Court Quotations
Federal Statutes |
Copyright Act 17 U.S.C. 5 | Digital Millenium Copyright Act 17 U.S.C. 12 | Lanham Act 15 U.S.C. 22
Filing A Federal Lawsuit
Setting Up | Standing. | Joinder of Parties. | The Complaint | Their Answer | Default Judgment
F.R.C.P. 12(b) Motion | F.R.C.P. 12(f) Motion | Your Reply | Summary Judgment Motion | Affidavits | Time Extension
VeRO (Verified Right's Owner Program)|
VeRO Commandments | VeRO-Verified Rights Owners Program | Counter Notice Letter
Counter Notice (pre-2003) | Counter Notice present | On-Line Survey from 2004 | Articles about VeRO | What To Do If You Are Veroed
|Original material by Karen Dudnikov & Michael Meadors is © 1999-2012|