Copyright and the First Sale Doctrine

With the explosion of the Internet and the different media outlets, such as Twitter, Instagram, Facebook, Youtube, Tik-Tok, just to name a few, the issues surrounding copyright ownership and rights have come to the forefront. But these also only reflect long time issues regarding copyright ownership. One such issue is what the doctrine of First Sale.

First, one who creates an original piece of art, such as a photograph, painting or statute, or a story or book, owns a copyright to that work. It is created upon the creation of the work. Unless the individual specifically sells the copyright rights to someone, only that individual has a right to make copies of his work. Most people have a general understanding of this.

Where things can get confusing sometimes is when an individual purchases a book, or a poster, or a piece of art. The question then becomes, what can he do with that piece of work? The obvious answer is that if he purchased that item, whether it is a book, poster or piece of art, he can do whatever he wants with it. Display it in his office, at his home, carry it around in his car and show it to his friends wherever he goes. This is covered in copyright law by what we call, the “First Sale” doctrine. Essentially, the holder of the purchased copy of a copyrighted work has the right to do anything he wants with that copy. However, that’s where his rights end as to the copyrighted work.

In one instance, a client has a poster that he used in his own artwork. His use of the poster in his own artwork is perfectly acceptable. He can sell the artwork as well. However, he cannot take photos of the artwork and then display that artwork on flyers or on his website. This is because his rights do not expand to displays of the poster. He does not have the right to advertise the copyrighted work. And in fact, he has repurposed the copyrighted work, or created what is called a “derivative” work. Without authorization, or proof that he purchased the copyright to the artwork, he cannot therefore otherwise display copies of his artwork in any other medium.

So, be careful what you do with Artwork. But what happens if someone posts a copyrighted work on Instagram and hashtags you on Instagram? And you want to repost it? That is a question for our next blog.