Re: T-shirt resale

On Thu, 18 Feb 1999, Kerry L. Konrad <k_konrad[_at_]stblaw.com> wrote:
>
> Last thoughts on Mirage. Having tried but failed to persuade the
> learned professors Ochoa and Lemley that Mirage could be closely read
> so as not to create a serious risk of liability in the absence of resale
> by the creator of the unauthorized derivative work -- and accepting the
> point that, as a matter of strict statutory interpretation, Section
> 106(2) would appear to be independent of Section 106(3) (which implies
> to me however that Mirage was correctly decided under the law and the
> perceived problem arises from the drafting of the statute) -- let me
> propose that the unrestricted sale of a copy of the work carries with
> it an implied license to create derivative works by altering the copy
> sold for personal use. In the textbook hypothetical, for example, there
> would be an implied license to mark it up, which would certainly comport
> with the customary expectations of all of the parties involved in the
> transaction.
>

Implied license is certainly a possibility. But it normally depends on showing that the circumstances surrounding the transaction make it logical to assume a license was granted. Perhaps they do in the case of some long-standing uses (such as writing in textbooks). I have two concerns about implied license: (1) it can be expressly disclaimed, so a "no adaptation" announcement inside the cover of the book would defeat that theory, and (2) I certainly don't think you could say that *all* adaptations that don't involve a distribution are impliedly licensed, else the statute would be meaningless. An example: if I buy your painting, and deface it, you may have a cause of action against me even though I don't resell it. [Yes, this does look a bit like a moral right coming in through the back door, as I think Paul Goldstein suggested in his treatise].

I agree with Kerry on damages, by the way. But of course, there's always statutory damages...

Mark Lemley
<mlemley[_at_]mail.law.utexas.edu> Received on Fri Feb 19 1999 - 17:39:38 GMT