The first sale doctrine plays is a key role in United States copyright law. It helps people understand what they can and cannot do with items they buy that are protected by copyright. If you have ever bought a book, DVD, or video game and then sold or gave it away, you have benefited from the first sale doctrine. This rule helps balance the rights of copyright owners with the rights of consumers.
Basics of the First Sale Doctrine
When a person creates something original, like a book or a movie, they automatically get copyright protection.¹ This protection gives the owner of the copyright protection control over how their work is copied, shared, or sold.² However, once the original creator sells a legal copy of their work, the buyer gets some rights, too. This is where the first sale doctrine comes in.
The first sale doctrine means that once you buy a copyrighted item legally, you are allowed to sell, lend, or give that specific copy away.³ You do not need the copyright holder’s permission to do this. This rule only applies to the copy you bought, not the copyright itself or the right to make new copies. So, if you buy a book, you can sell it to a friend or donate it to a library, but you cannot scan the pages and make new books to sell.
This doctrine is especially important for libraries, second-hand stores, and online resale platforms. It allows those institutions to lend or resell copyrighted materials without needing special permission. Without this rule, activities like book exchanges or used DVD sales would not be legal.
History of the First Sale Doctrine
The first sale doctrine has been part of United States Copyright law for more than a hundred years. It was confirmed by the Supreme Court in the Bobbs-Merrill Co. v. Straus ⁴ of 1908. In that case, the Bobbs-Merrill, a publisher, sought to include a notice in a novel that set the price of the novel’s retail sale at $1.00. This was challenged when Straus purchased a large lot of books and sold them at $0.89. When the Supreme Court reviewed the matter, they saw how copyright law may be used to create a limit to resale of goods; publishers could limit or prohibit subsequent sales of their books.⁵ In order to preserve a healthy resale market and allowed more people to access books, movies, and music at lower costs. Later, the first sale doctrine was codified in Section 109 of the Copyright Act of 1976.
Limits of the First Sale Doctrine
The first sale doctrine has limits. It only applies to authorized tangible items, not digital works. The scope of this doctrine has been expanded to include goods purchased outside of the United States.
Generally, you are purchasing license for digital works, for example, if you use Spotify, you have a license for music, if you use Steam, you are buying a license for the game, and even if you use Windows 11, you have a license for the operating system. If you did somehow manage to buy a song or a movie online, you usually do not have the right to resell it. This is because digital files are not actually transferred, they are copied. The seller still has a copy of the work and you now have a copy of the work; compared to a physical item, when the seller transfers the physical item, you have it and they do not have access to the work.
Further, the first sale doctrine only applies to lawful copies. If someone sells you a pirated DVD or an illegal copy of a book, you do not gain the rights that come with a legal purchase. The rule protects only the buyers of authorized copies made by or with the permission of the copyright owner.
In Kirtsaeng v. John Wiley & Sons,⁶ the Supreme Court decided that the first sale doctrine applies even if the item was made and bought in another country, if it was legally produced. In that case, Kirtsaeng imported text books he purchased in his home country of Thailand. Kirtsaeng developed this into a business where he earned $1.2 million in revenue when he was sued for copyright infringement. The Supreme Court determined that the first sale doctrine was not limited by geography, the copies needed only be lawfully made and purchased. This has had the effect of opening the global trade market.
Understanding the first sale doctrine can help both consumers and businesses make smart choices. It shows how copyright law tries to be fair to creators while still letting people enjoy and share their purchases. As more people buy books, music, and movies in digital formats, there may be new changes to the law in the future. But for now, the first sale doctrine continues to support the rights of people who buy physical copies of copyrighted works. In short, the first sale doctrine is a simple but powerful idea in copyright law. It gives buyers the freedom to use, sell, or give away the items they purchase, without breaking the law. This helps promote learning, creativity, and access to culture, while still respecting the rights of those who create the original work.
This blog is for general information purposes only and should not be relied upon as specific legal advice. This article, or contacting Apex, does not in any way form an attorney-client relationship. If you have any questions or would like to learn more, please contact us or visit our blog. You might also like to read Ask Apex: What is the Copyright Work for Hire Doctrine?
¹ 17 USC § 101. The protections exist when the work is created, but in order to enforce those protections a copyright holder is required to register the work with the United States Copyright Office. Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. ___ (2019).
² For a complete list of rights see 17 USC § 106.
³ The first sale doctrine is codified at 17 USC § 109.
⁴ Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908)
⁵ Of note, there was not a contract between these parties, the Supreme Court did note that a contract or license may change the analysis.