Re: Re: Re: Derivative Inquiry

>
> 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?

This license is in personam, not in rem, no? So it does not bind the buyer of the anthology who is thus protected by the first sale doctrine. And Norton has no control over what the buyer of the copy does with the copy and so no claim exists by the poet against Norton either. So, that license only limits what Norton can do, not what subsequent purchasers can do.

> 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?

Not with respect to the publisher. But again, what I do with my copy of the book I bought is not bound by that agreement. And the publisher cannot limit the effect of the first sale doctrine when it sells the product. If it wants that protection, it needs to do what was done in other instances -- amend the statute to limit what can be done with a buyer of the copy. (which is why we can rent DVDs of movies, but not CDs of music or CDs of DVDs of software).

> 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.

A stronger moral rights regime could accomplish at least some of this. But that isn't the law in the US.

> 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.

Preemption is a messy thing, especially in copyright. You have at least the statutory preemption and supremacy clause conflict preemption at work. If the contract provisions conflict with the copyright law, then straight-up supremacy clause preemption applies. If there is no conflict, then you go to the statute and that is a bit more complex. If the contract is treading too far into the same territory of copyright, the preemption will occur. Of course the legal language is more technical than this and messy, messy, messy in its application.

Steve

-- 
Prof. Steven D. Jamar                               vox:  202-806-8017
Howard University School of Law                     fax:  202-806-8567
2900 Van Ness Street NW                   mailto:stevenjamar[_at_]gmail.com
Washington, DC  20008	                         http://iipsj.com/SDJ/

"Example is always more efficacious than precept."

Samuel Johnson, 1759