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The “First Sale Doctrine” in the 21st Century

SKU: IP005
Total Credits
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As most of you know, the “First Sale Doctrine” is a provision in copyright law that permits the owner of a copy of a copyrighted item to sell or transfer that item to another person. In other words if you buy a book or movie CD, you can sell or give away that copy without running afoul of copyright law

But there are, of course, lots of nuances and exceptions to this rule. For example, the protection only covers works that were “lawfully made” under the copyright act, and it only protects the owner of a particular work. These exceptions lead to a number of issues that will be covered in this CLE program, including:

Is a work manufactured in a foreign country “lawfully made under this title” for purposes of the first sale doctrine? There have been two cases that have gone all the way to the Supreme Court of the United States on this issue, which has practical considerations for book publishers and others who may seek to gain an advantage by having goods made abroad (so that US re-sales are not protected by the first sale doctrine)

What does it mean to “own” an item, and what is the situation where a product is purportedly licensed to the end user (such as software products).” Courts in the Second and Ninth Circuits, among others, have been wrestling with this issue in recent cases.

How does the first sale doctrine fit in with the related concept of preventing grey market imports under trademark law?

Are more and more businesses going to try to use a license rather than sale model in order to take advantage of the limits to the first sale doctrine?

What are the competing policy issues and how might resolution of the open legal issues affect international commerce?

How are similar issues being treated in Europe and elsewhere internationally?

Lecturer Bio

Edward H. Rosenthal, Esq.

Edward H. Rosenthal chairs the firm’s Intellectual Property and Litigation Groups. He focuses on intellectual property litigation, emphasizing trademark, copyright, right of publicity, advertising, privacy and publishing matters. His clients include businesses and individuals in the media, advertising, sports, and entertainment fields.

Mr. Rosenthal also has substantial involvement in issues relating to trademark prosecution and enforcement, representing numerous businesses and individuals in protecting and enforcing their intellectual property. He also represents the estates of deceased celebrities, including Humphrey Bogart, and handles licensing work for the estate and other celebrities and companies.

Mr. Rosenthal is currently representing The Authors Guild and a number of other authors' rights associations and individuals in a suit against the HathiTrust arising out of its mass book digitization and orphan works programs. Recently, he defended Fredrik Colting, author of 60 Years Later: Coming Through the Rye, and his U.S. distributor, in a lawsuit brought by J.D. Salinger alleging copyright infringement. Mr. Rosenthal also successfully defended J.K. Rowling and Scholastic Inc., the author and publisher of the Harry Potter books, against claims of copyright and trademark infringement.

Mr. Rosenthal has written and lectured extensively on a wide variety of intellectual property topics. He is a regular presenter to the Practicing Law Institute on the Right of Publicity, and has participated in numerous panels on trademark and copyright law. He was co-editor of Entertainment Law Matters, a blog focused on disputes and developments in the film, television, publishing, theatre, music, art, gaming, and fashion industries. Mr. Rosenthal has also been active in the Copyright Society of the U.S.A. and the International Trademark Association. He serves as co-chair of the Committee on Publicity, Privacy and Media of the New York State Bar Association’s Entertainment and Sports Law Committee and as a member of the Copyright Committee of the New York City Bar.

Prior to joining Frankfurt Kurnit Klein & Selz, Mr. Rosenthal served as a law clerk to Hon. Abraham D. Sofaer in the Southern District of New York and was associated with the New York law firm of Kramer Levin Naftalis & Frankel. He was Adjunct Professor at Fordham Law School (Legal Writing, 1985-1986; Intellectual Property Drafting, 1996).

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