Re: Re: Re: Derivative Inquiry

At 3:25 PM -0400 8/29/06, Steven Jamar wrote:
>How about the author of the poem? The author got paid and negotiated
>the price, taking into account the first sale doctrine. Again,
>nothing to complain about.

At 3:25 PM -0400 8/29/06, John T. Mitchell wrote:
>While I believe the first sale doctrine would apply to both examples....

At 3:25 PM -0400 8/29/06, Jan Carmikle Dwyer wrote:
>Let's set the actual law aside for a moment and look at this from a
>spirit-of-the-copyright-law perspective.

At 4:35 PM -0400 8/29/06, Steven Jamar wrote:
>I have a serious legal problem with trying to do by contract what the
>statute does not allow. The statute has the first sale doctrine in
>it. The copyright holder has few rights in how that single physical
>copy gets used. The copyright owner just has rights regarding
>reproduction, derivative works, performance, display, etc. And even
>then the right to display one's own copy goes with the copy, not the
>copyright in the intellectual work.

At 2:55 PM -0400 8/30/06, David Dailey wrote:
>If too many people start applying the first sale
>doctrine, then publishers will just start
>shrinkwrapping their products. Copyright law is
>so passé.

Okay, this is interesting.

Let's assume the poet granted Norton a
non-exclusive license to reproduce and distribute the protected work "only" in The Norton Anthology of Modern and Contemporary Poetry, reserving the right to authorize reproduction and distribution of the work in Valentine's Day cards. Does the first sale doctrine authorize distribution of the work in violation of the explicit terms of the license agreement? Or does it only allow "redistribution" in accordance with the terms of the license, i.e. in The Norton Anthology of Modern and Contemporary Poetry?

Let's assume Maxfield Parrish (or his estate -- is he dead?) granted a very prestigious publisher a very expensive exclusive license to reproduce 145 works "only" under excruciatingly detailed terms and conditions, including the weight and gloss of the paper stock, his prior approval of the order in which the works are presented to show the development of his artistry, and "only" in a work of joint authorship with commentary by a designated art critic/historian. Same question -- does the first sale doctrine gut the terms and conditions of the author's license?

My own inclination is that the "spirit of the copyright law" should protect the poet's right to distribute his work in a respected anthology of poetry, rather than as a greeting card; and should protect the painter's right to distribute his work in a comprehensive exploration of his ouvre, rather than as a place-mat.

Although I disagree with Steven on the preemption issue -- I would characterize it as "trying to do by contract what the statute does not /forbid/" -- I think you can make a respectable argument that what the first sale doctrine allows is the sale or disposal of a "particular copy lawfully made" -- as that particular copy was lawfully made: in a book.

Going back to the day-care center's
cannibalization of workbooks. Mr. Dailey makes a point (he claims he "just kidding" so I'll take the heat). Educational materials are developed at X cost and distributed at Y price, based on projected sales to cover the cost and make buck or two. If everybody cuts up the workbooks and laminates the pages so they can be used with grease-pencils over and over again, the workbook is going to be distributed in the form of laminated pages, bundled with grease-pencils, and priced accordingly, to recover the same cost and make a buck or two, and a little more on the pencils, which need to be replaced constantly because they run out of ink so fast.

John Noble Received on Thu Aug 31 2006 - 22:55:00 GMT