Re: image of book jacket used to sell used book

On Fri, Jul 28, 2000, Patrick Begos <begos[_at_]ibm.net> wrote:
>
> On Thu, 27 Jul 2000, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
> >
> > No. Under the first sale doctrine, sec. 109(c), the owner of a
> > lawful copy of a copyrighted work can display that copy to members
> > of the public who are present at the place where the copy is located.
> > Display by means of transmission beyond the place where the copy is
> > located is not be protected by the first sale doctrine.
> >
> > Nonetheless, I think this would easily fall under fair use. Yes,
> > you are making a digital copy of the cover of a copyrighted work;
> > but it is for purposes of identifying the book that is being
> > lawfully sold. Moreover, it helps the buyer judge the condition
> > of the book. Using a copy in this manner is in furtherance of
> > lawful activity and is in no way a substitute for a licensed
> > transaction.
>
> For what its worth to Tyler's fair use analysis, I represented a
> major comic book publisher in a dispute with someone who was posting
> complete copies of his vintage comics on his web page (we got the
> images down). The publisher's general counsel told me that they
> would not have a problem if just the cover were displayed,
> presumably because it is publicity, however meager. They did,
> however, have a problem with the display of the entire work.
>
> Obviously, one anecdote does not a legal analysis make, and different
> publishers might look at it differently.

Patrick's anecdote raises the questions whether posting the work on the Web constitutes a display or a re-publication. I tend to think it is the latter.

Robert C. Cumbow
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