This is the second part in our series on what makes a copyright: the Right to Distribute. If you’ve not already been so kind, have a look at Part I (the right to reproduce the work). To refresh, the six parts of copyright are:
- The right to reproduce the copyrighted work
- The right to prepare derivative works based upon the work
- The right to distribute copies of the work to the public
- The right to publicly perform the copyrighted work
- The right to publicly display the copyrighted work
- (sound recording only) The right to digitally transmit to publicly perform the copyrighted work
To try to get behind the curtain of copyright, we’re going to individually explore each of these six rights. An understanding of each of these rights and how they operate will allow you, the creator, to be in a better position to take advantage of your copyright.
There are a couple words of caution. First, the practical effect of these exclusive rights will depend on the type of copyrighted work (literary works, musical works, motion pictures, sound recordings, etc.). Second, these are exclusive rights. The law allows only the copyright holder to exercise these rights.
II. The Right to Distribute
The exclusive right to distribute ensures that only you, or someone you authorize, can lawfully share your copyrighted work. Distribution not only covers direct sales of things like CD’s, DVD’s, and music files, but also their leasing, rental, and lending. This right, when paired with the right to reproduce, gives financial teeth to copyright protection. Only you, the copyright owner, can profit from the distribution of your copyrighted work through its sale, lease, or rental. An obvious violation of this right occurs when another sells your work without permission, but also occurs when it is given away, too. Peer to peer file sharing, internet piracy, and posting to a website are all common examples.
The right also lets you control how the work is distributed. The copyright owner, for instance, can dictate the price for a sale, the stores where someone can make a purchase, or if he/she lets someone borrow and use it for charitable reasons.
An important restriction on the distribution right is the Doctrine of First Sale. Once a person buys a physical copy of the copyrighted work, they can resell or otherwise do away with the copy as they see fit. A buyer, after purchasing a CD for example, owns that CD but not the copyright to the music itself. They can resell it at a garage sale, give it to a friend, or even use it as a target for skeet shooting. First Sale is the mechanism that allows Netflix and Blockbuster to rent out physical copies (not internet streaming) of movies. The right to first public distribution is another way of thinking and naming the issue.
The First Sale Doctrine, however, is not without its own limitations:
- First Sale Doctrine only applies if a copy was lawfully made and sold under the U.S. Copyright Act. The U.S. Supreme Court is currently considering whether the Copyright Act can ever apply to copyrighted works made overseas.
- First Sale Doctrine does not permit a person to rent out Computer software or CD’s they’ve purchased.
- More recently, a federal court also ruled that First Sale Doctrine does not allow the resale of digital music files.
As a finale note, people can potentially invade your right to distribution if they’re making Fair Use. In plain English, people can make limited distribution of copyrighted works if it’s legitimately done for educational, commentary, criticism, parody, or other similar reasons.
Chime in with any questions or comments that you may have about the right to distribute.
– Ari Good, Esq.
Ari Good, JD LLM, a tax, aviation and entertainment lawyer, is the Shareholder of Good Attorneys At Law, P.A. Ari Mr. Good received his BA, With Distinction, from the University of Michigan in 1993. He graduated from the DePaul University College of Law in 1997 and received his LL.M. in Taxation from the University of Florida. Ari represents DJs, live musicians, fashion models and other entertainers in copyright, licensing and contract matters.