What Rights the First Sale Doctrine Gives to a Purchaser of a Copyrighted Work

Copyright law gives certain exclusive rights to creators of various works. An artist can, for example, sue if his painting is copied and sold on T-shirts without permission. An author can sue if her poem is reprinted in a newspaper without her knowledge. A coder can sue if her code is taken by another Web developer verbatim. Yet, the protections that copyright law extends to these creators has an important limitation: the first sale doctrine.

Every day, millions of consumers make use of the first sale doctrine. This copyright doctrine permits the purchaser of a legal copy of a copyrighted work to treat that copy in any way he or she desires, as long as the copyright owner's exclusive copyright rights are not infringed. This means the copy can be destroyed, sold, given away, or rented.

A common example is the rental of movie videos, where the store purchasing the disks is entitled to rent them out without paying any royalties to the owner of the copyright rights in the movie. The term "first-sale doctrine" comes from the fact that the copyright owner maintains control over a specific copy only until it is first sold.

The First Sale Doctrine Is Narrow

It is important to remember that the first sale doctrine is very narrow. It applies only to a specific copy. No rights are granted as to the underlying work.

For example, except as provided in the Copyright Act of 1976, the owner cannot reproduce, adapt, publish, or perform the work without the authorization of the author. All that the consumer can do is to dispose of the particular copy that has been purchased. For example, the first sale doctrine does not permit the owner of a book of copyrighted art prints to separate the prints, mount them in frames, and sell them separately.

Moreover, the first sale doctrine applies only to the owner of the work, not to a person who possesses the property but does not own it. For example, imagine that a store purchases a lawfully made copy of the movie, Gone With the Wind. As the owner of that copy, the store can rent it to an individual. However, the person renting it cannot rent the copy to someone else. Only the owner of the copy has such rights.

Exceptions to the First Sale Doctrine

There are exceptions to the first sale doctrine that prevent the owner of a copy of a work from doing certain things with that work.

Computer Programs and Sound Recordings Cannot Be Rented

As a result of lobbying by the computer and music industries, the rental of computer programs and sound recordings is prohibited. The sound recording exception is limited to musical works; it does not extend to audiobooks.

Protection of Certain Visual Works: The Visual Artists Rights Act (VARA)

It is also not permissible under the first sale doctrine to destroy certain types of artworks protected by the VARA. VARA protectspaintings, drawings, prints, photographs, or sculptures, in a single copy or limited edition of 200 copies or fewer (that are signed and consecutively numbered).

Protection From Destruction Under VARA

The VARA statute protects you the creator of a work of visual art from intentional mutilation or distortion of a work of visual art that would be prejudicial to the honor or reputation of the artist.

This is the most powerful right granted under the VARA provisions. For example, if a collector buys a limited edition silkscreen (fewer than 200 prints were made), the collector cannot destroy it without the artist's permission. If the work is destroyed, the artist can sue under VARA and recover damages, provided they can prove that their reputation was damaged.

The rule regarding destruction does not apply if:

• the work was created prior to enactment of the VARA provisions on December 1, 1990
• the artist specifically waived the rights in a written statement, or
• the destruction or modification results from the passage of time or because of the materials used to construct the work. For example, certain works such as ice sculptures and sand sculptures by their nature self-destruct, and the owner would have no obligation to affirmatively prevent such destruction.

No VARA Rights If Work Is Made for Hire

Under certain circumstances, the person who employs an artist or commissions an artwork acquires copyright ownership. (This "work-made-for-hire" principle is discussed here.)

If artwork is created as work made for hire, there are no VARA rights. That is, although normal copyright law applies to the work, neither the artist nor the person commissioning the work can claim rights under VARA. For example, if you hire an artist to paint a mural on your wall, you have the right to later destroy or repaint that wall, since the original mural was a work-for-hire.

Goods Made Overseas

In 2013, the U.S. Supreme Court ruled that there are no geographic limitations on the first sale doctrine. In that case, known as Kirtsaeng v. John Wiley & Sons, Inc., a Thai student came to America to study, and engaged in a business arrangement with his family in Thailand. They would send him the books purchased in Thailand for a low price, and he would resell them in the U.S. market, which charged higher prices.

The student expanded the business and eventually earned $100,000 in profit. U.S. publishers sued the student, arguing that the first sale doctrine did not apply to "gray market goods," which involve lawfully made goods that were imported into (but not made in) the United States.

The Supreme Court disagreed and ruled for the student, stating that as long as the copies were lawfully made under the direction of the copyright holder, there was no requirement that the books be manufactured in the United States. In other words, the student could use the first sale doctrine to do what he wished with his own copy of the book, even though he did not own the copyright.