1. Class 12 Copyright, Winter, 2010 Distribution and First-Sale Doctrine Randal C. Picker Leffmann Professor of Commercial Law The Law School The University of Chicago 773.702.0864/r-picker@uchicago.edu Copyright © 2005-10 Randal C. Picker. All Rights Reserved.

2. August 6, 2015Copyright © 2005-10 Randal C. Picker2 106. Exclusive rights in copyrighted works n 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: u … u (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;

3. August 6, 2015Copyright © 2005-10 Randal C. Picker3 The First-Sale Doctrine n 109(a) u 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.

4. August 6, 2015Copyright © 2005-10 Randal C. Picker4 Bobbs-Merrill v. Straus n 210 U.S. 339 (1908) 210 U.S. 339

5. August 6, 2015Copyright © 2005-10 Randal C. Picker5 1870 Copyright Act: 2 nd General Revision 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,

6. August 6, 2015Copyright © 2005-10 Randal C. Picker6 1870 Copyright Act 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.

7. August 6, 2015Copyright © 2005-10 Randal C. Picker7 The Cassilis Engagement (1907)

8. August 6, 2015Copyright © 2005-10 Randal C. Picker8 The Cassilis Engagement (1907)

9. August 6, 2015Copyright © 2005-10 Randal C. Picker9 More Rights Reservation

10. August 6, 2015Copyright © 2005-10 Randal C. Picker10 Bobbs-Merrill v. Straus n Selling The Castaway by Hallie Ermine Rives

11. August 6, 2015Copyright © 2005-10 Randal C. Picker11 The Castaway

12. August 6, 2015Copyright © 2005-10 Randal C. Picker12 Copyright Page

13. August 6, 2015Copyright © 2005-10 Randal C. Picker13 Selling the Book n Core Facts u Bobbs-Merrill sells The Castaway with the reservations notice beneath the copyright statement in each copy of the book u Macy’s is selling the book for 89 cents u Macy’s bought the book from wholesalers; everyone knew of the notice; no contracts regarding sales price

14. August 6, 2015Copyright © 2005-10 Randal C. Picker14 Reading Sec. 4592 n From the Opinion u “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 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.

15. August 6, 2015Copyright © 2005-10 Randal C. Picker15 Meaning? n Says the Court u “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.”

16. August 6, 2015Copyright © 2005-10 Randal C. Picker16 Meaning? n Says the Court u “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 interpreted with a view to ascertaining the legislative intent in its enactment.”

17. August 6, 2015Copyright © 2005-10 Randal C. Picker17 [Amazon: The Castaway]

18. August 6, 2015Copyright © 2005 Randal C. Picker18 Screen Capture Slide

19. August 6, 2015Copyright © 2005 Randal C. Picker19 Screen Capture Slide

20. August 6, 2015Copyright © 2005 Randal C. Picker20 Screen Capture Slide

21. August 6, 2015Copyright © 2005 Randal C. Picker21 Screen Capture Slide

22. August 6, 2015Copyright © 2005-10 Randal C. Picker22 Sec. 41: 1909 Copyright Act “ That the copyright is distinct from the property in the material object copyrighted, and the sale or conveyance, by gift or otherwise, of the material object shall not of itself constitute a transfer of the copyright, nor shall the assignment of the copyright constitute a transfer of the title to the material object; but nothing in this title shall be deemed to forbid, prevent, or restrict the transfer of any copy of a copyrighted work the possession of which has been lawfully obtained. ”

23. August 6, 2015Copyright © 2005-10 Randal C. Picker23 Organizing Secondary Markets n Three Situations u Sequential ownership (used books) u One owner, many users (rental markets) u One owner, many users (libraries)

24. August 6, 2015Copyright © 2005-10 Randal C. Picker24 [SC: Amazon: GT&L]

25. August 6, 2015Copyright © 2005-10 Randal C. Picker25 [SC: Used Prices]

26. August 6, 2015Copyright © 2005-10 Randal C. Picker26 [SC: Author’s Guild]

27. August 6, 2015Copyright © 2005-07 Randal C. Picker27 106. Exclusive rights in copyrighted works n 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: u (1) to reproduce the copyrighted work in copies or phonorecords; u (2) to prepare derivative works based upon the copyrighted work;

28. August 6, 2015Copyright © 2005-07 Randal C. Picker28 106 (Cont.) u (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;

29. August 6, 2015Copyright © 2005-07 Randal C. Picker29 Limits on 106(1), (2) and (3) n Rights under 106(1), 106(2) and 106(3) do not depend on type of work, BUT … u Sec. 113 limits rights for pictorial, graphic and sculptural works u Sec. 114 limits rights for sound recordings u Sec. 115 limits rights for nondramatic musical works u Sec. 120 limits rights for architectural works

30. August 6, 2015Copyright © 2005-07 Randal C. Picker30 Limits on 106(1), (2) and (3) u Sec. 121 limits rights for nondramatic literay works for the blind or other persons with disabilities

31. August 6, 2015Copyright © 2005-07 Randal C. Picker31 106 (Cont.) u (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, w to perform the copyrighted work publicly

32. August 6, 2015Copyright © 2005-07 Randal C. Picker32 106 (Cont.) u (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, w to display the copyrighted work publicly;

33. August 6, 2015Copyright © 2005-07 Randal C. Picker33 101: Perform n To “perform” a work means u 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.

34. August 6, 2015Copyright © 2005-07 Randal C. Picker34 101: Display n To “display” a work means u 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.

35. August 6, 2015Copyright © 2005-07 Randal C. Picker35 101: Publicly n To perform or display a work “publicly” means ‑‑ u (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

36. August 6, 2015Copyright © 2005-07 Randal C. Picker36 101: Publicly u (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.

37. August 6, 2015Copyright © 2005-07 Randal C. Picker37 101: Transmit n To “transmit” a performance or display u is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.

38. August 6, 2015Copyright © 2005-07 Randal C. Picker38 [GI: Saul]

39. August 6, 2015Copyright © 2005-07 Randal C. Picker39 [GI: 1 st Picture]

40. August 6, 2015Copyright © 2005-07 Randal C. Picker40 [GI: Full Size]

41. August 6, 2015Copyright © 2005-07 Randal C. Picker41 [GI: Unframed]

42. August 6, 2015Copyright © 2005-07 Randal C. Picker42 Building a Search Engine n Hypo u Google wants to provide search services u Sets up service in which web pages will be indexed unless page opts out u Indexing means copying text and creating thumbnails of images n Copyright issues?

43. August 6, 2015Copyright © 2005-07 Randal C. Picker43 Understanding Perfect10 n What is the case about? u Given that Perfect10.com can opt out of the Google crawl and Google will respect that, what is the issue? u Should we treat thumbnail images and in- line link images differently?

44. Display, Distribution and Derivative Works n Three Questions u 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? u Same questions re distribution u Is an in-line linked page a derivative work? August 6, 2015Copyright © 2005-07 Randal C. Picker44