Transcript Standard Setting in High

Class 11
Copyright, Winter, 2014
Distribution and First-Sale
Doctrine
Randal C. Picker
James Parker Hall Distinguished Service Professor of Law
The Law School
The University of Chicago
773.702.0864/[email protected]
Copyright © 2005-14 Randal C. Picker. All Rights Reserved.
106. Exclusive rights in
copyrighted works

Subject to sections 107 through 121, the owner
of copyright under this title has the exclusive
rights to do and to authorize any of the
following:
…
(3)
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to distribute copies or phonorecords of the
copyrighted work to the public by sale or other
transfer of ownership, or by rental, lease, or
lending;
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The First-Sale Doctrine

109(a)
Notwithstanding
the provisions of section 106(3),
the owner of a particular copy or phonorecord
lawfully made under this title, or any person
authorized by such owner, is entitled, without the
authority of the copyright owner, to sell or
otherwise dispose of the possession of that copy
or phonorecord.
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“That any citizen of the United States, or resident
therein, who shall be the author, inventor,
designer, or proprietor of any book, map, chart,
dramatic or musical composition, engraving, cut,
print, or photographs or negative thereof, or of a
painting, drawing, chromo, statue, statuary, and of
models or designs intended to be perfected as
works of the fine arts, and his executors,
administrators, or assigns,”
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1870 Copyright Act
4
nd
(2 General Revision)
“shall, upon complying with the provisions of
this act, have the sole liberty of printing,
reprinting, publishing, completing, copying,
executing, finishing, and vending the same;
and in the case of a dramatic composition, of
publicly performing or representing it, or
causing it to be performed or represented by
others; and authors may reserve the right to
dramatize or to translate their own works.”
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1870 Copyright Act
5
nd
(2 General Revision)
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The Cassilis Engagement (1907)
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The Cassilis Engagement (1907)
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The Castaway
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The Castaway: Copyright Page
Selling the Book

Core Facts
Bobbs-Merrill
sells The Castaway with the
reservations notice beneath the copyright
statement in each copy of the book
Macy’s is selling the book for 89 cents
Macy’s bought the book from wholesalers;
everyone knew of the notice; no contracts
regarding sales price
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Reading Sec. 4592

From the Opinion
“Sec.
4952. Any citizen of the United States or
resident therein, who shall be the author, inventor,
designer, or proprietor of any book, map, chart,
dramatic or musical composition, engraving, cut,
print, or photograph or negative thereof, or of a
painting, drawing, chromo, statute, statuary, and
of models or designs intended to be perfected as
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Reading Sec. 4592

From the Opinion
“works
of the fine arts, and the executors,
administrators, or assigns of any such person,
shall, upon complying with the provisions of this
chapter, have the sole liberty of printing,
reprinting, publishing, completing, copying,
executing, finishing, and vending the same.” U.S.
Comp. Stat. 1901, p. 3406.
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Meaning?

Says the Court
“In
our view the copyright statutes, while
protecting the owner of the copyright in his right to
multiply and sell his production, do not create the
right to impose, by notice, such as is disclosed in
this case, a limitation at which the book shall be
sold at retail by future purchasers, with whom
there is no privity of contract.”
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Meaning?

Says the Court
“To
add to the right of exclusive sale the authority
to control all future retail sales, by a notice that
such sales must be made at a fixed sum, would
give a right not included in the terms of the statute,
and, in our view, extend its operation, by
construction, beyond its meaning, when
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Meaning?

Says the Court
“interpreted
with a view to ascertaining the
legislative intent in its enactment.”
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Organizing Secondary Markets

Three Situations
Sequential
ownership (used books, used MP3s?)
One owner, many users (rental markets)
One owner, many users (libraries)
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[SC: Author’s Guild]
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Capitol Records v. Redigi, 934
F.Supp.2d 640 (SDNY 2013) 23
106. Exclusive rights in
copyrighted works

Subject to sections 107 through 121, the owner
of copyright under this title has the exclusive
rights to do and to authorize any of the
following:
(1)
to reproduce the copyrighted work in copies or
phonorecords;
(2) to prepare derivative works based upon the
copyrighted work;
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106 (Cont.)
(3)
to distribute copies or phonorecords of the
copyrighted work to the public by sale or other
transfer of ownership, or by rental, lease, or
lending;
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Limits on 106(1), (2) and (3)

Rights under 106(1), 106(2) and 106(3) do not
depend on type of work, BUT …
Sec.
113 limits rights for pictorial, graphic and
sculptural works
Sec. 114 limits rights for sound recordings
Sec. 115 limits rights for nondramatic musical
works
Sec. 120 limits rights for architectural works
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Limits on 106(1), (2) and (3)
Sec.
121 limits rights for nondramatic literay works
for the blind or other persons with disabilities
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106 (Cont.)
(4)
in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and motion
pictures and other audiovisual works,
 to perform the copyrighted work publicly
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106 (Cont.)
(5)
in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and pictorial,
graphic, or sculptural works, including the
individual images of a motion picture or other
audiovisual work,
 to display the copyrighted work publicly;
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101: Perform

To “perform” a work means
to
recite, render, play, dance, or act it, either
directly or by means of any device or process or,
in the case of a motion picture or other audiovisual
work, to show its images in any sequence or to
make the sounds accompanying it audible.
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101: Display

To “display” a work means
to
show a copy of it, either directly or by means of
a film, slide, television image, or any other device
or process or, in the case of a motion picture or
other audiovisual work, to show individual images
nonsequentially.
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101: Publicly

To perform or display a work “publicly” means-(1)
to perform or display it at a place open to the
public or at any place where a substantial number
of persons outside of a normal circle of a family
and its social acquaintances is gathered; or
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101: Publicly
(2)
to transmit or otherwise communicate a
performance or display of the work to a place
specified by clause (1) or to the public, by means
of any device or process, whether the members of
the public capable of receiving the performance or
display receive it in the same place or in separate
places and at the same time or at different times.
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101: Transmit

To “transmit” a performance or display
is
to communicate it by any device or process
whereby images or sounds are received beyond
the place from which they are sent.
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[GI: Saul]
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[GI: 1st Picture]
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[GI: Full Size]
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[GI: Unframed]
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Building a Search Engine

Hypo
Google
wants to provide search services
Sets up service in which web pages will be
indexed unless page opts out
Indexing means copying text and creating
thumbnails of images

Copyright issues?
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Understanding Perfect10

What is the case about?
Given
that Perfect10.com can opt out of the
Google crawl and Google will respect that, what is
the issue?
Should we treat thumbnail images and in-line link
images differently?
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Display, Distribution and
Derivative Works

Three Questions
Who
displays an image? The server where it is
stored? The entity providing the html code to
invoke the presentation of the image? The creator
of the browser? The person who clicks the link?
Someone else?
Same questions re distribution
Is an in-line linked page a derivative work?
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