The Right to Distribute Copyrighted Works and the First Sale Doctrine

Copyright owners have the exclusive right to distribute their copyrighted work to the public.  Distribution means the actual transfer of a material copy of the copyrighted material.  Simply offering to transfer is not distribution under copyright law.  Further, distribution includes a sale or other transfer of ownership, but also includes rental, lease, and lending of the copyrighted work.  As a distinct right, the right to distribute is separate from the other rights.  For example, a manufacture may have a license to reproduce a copyrighted work, with no mention of the right to distribute.  If he sells the copies he manufactured to the public, he would be infringing the right to distribute. 

The doctrine of first sale constitutes a significant exception to the exclusive right of distribution.  This doctrine provides that once there is an authorized transfer of a copyrighted work to another party, that party can transfer or dispose of his authorized copy freely.  This means that the copyright owner really only has the exclusive right to the initial distribution of a copy of his work, with few exceptions.  Obviously, the doctrine of first sale doesn't apply to unauthorized copies.  So if a merchant sales pirated copies of a copyrighted work, he is violating the exclusive right to distribute, with no protection from the first sale doctrine.  Another exception applies to audio works and computer programs.  Despite the initial sale of such works, even an authorized buyer does not generally have the freedom to rent the audio work or computer program out to the public. 

One interesting state law-based "exception" to the first sale doctrine is droit de suite, which literally translates as "piggyback".  This doctrine gives the creator of a work of fine arts the right to share in any appreciation in the value of his work if it is resold after his initial transfer of the work.   Droit de suite is recognized in some countries, but not recognized under U.S. copyright law.  However, California state law includes a droit de suite statute. 

I'll talk about the right of public performance next week.  Send us your questions or comments, or post them on the blog.  The email is JDellinger@mainspringlaw.com.  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.