Copyright — Defense— - Affirmative Defense - First Sale is a type of legal defense to copyright infringement, which allows an individual or entity to reproduce, distribute, or perform a copyrighted work without the permission of the copyright holder. This is based on the principle of exhaustion of rights, which states that the copyright holder's rights to control the reproduction and distribution of their work are exhausted once the work has been sold or otherwise transferred by the copyright holder. There are two types of First Sale defenses: Sale of Authorized Copies, and Sale of Unauthorized Copies. The Sale of Authorized Copies allows a copyright holder to resell or otherwise transfer a copy of their work that was originally authorized by the copyright holder. The Sale of Unauthorized Copies allows an individual or entity to resell or otherwise transfer a copy of a copyrighted work that was not authorized by the copyright holder.
Copyright - Defenses - Affirmative Defense - First Sale
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FAQ
The three basic elements of copyright: originality, creativity, and fixation. There are three basic elements that a work must possess in order to be protected by copyright in the US: Originality: To get a copyright, a work must be the original work of the author.
The ?first sale? doctrine (17 U.S.C. § 109(a)) gives the owners of copyrighted works the rights to sell, lend, or share their copies without having to obtain permission or pay fees. The copy becomes like any piece of physical property; you've purchased it, you own it.
Several cases suggest that in criminal copyright prosecutions, the United States must prove that the copyrighted work was not the subject of a first sale. Other cases, however, hold that the issue of a first sale is an affirmative defense that must be raised by the defendant.
Innocence (proving there was no reason to believe the work was copyrighted) The use is with a license agreement in place (this can shift liability to the licensor) Abandonment (a claim that the owner failed to enforce it's rights, thereby abandoning the right) Misuse of copyright by the copyright owner.
The elements in this instruction are explained in Instructions 17.6 (Copyright Infringement?Ownership of Valid Copyright?Definition), 17.14 (Copyright Infringement?Originality), and 17.17 (Copying?Access and Substantial Similarity). Copying and improper appropriation are issues of fact for the jury.
Innocent infringement is a potential defense where the infringer did not have notice of the copyright. The innocent infringer defense may be used when the defendant consciously and intentionally copies from the plaintiff's work, believing in good faith that his conduct does not constitute an infringement of copyright.
Generally, there are two main defenses that can be raised against a copyright infringement claim: (1) challenging the alleged copyright owner's claim to ownership; and (2) challenging an alleged violation of a right.