First Sale Doctrine

Where You Need a Lawyer:

(This may not be the same place you live)

At No Cost! 

 What Is the First Sale Doctrine?

The first sale doctrine in copyright law allows the person who buys a work that is copyrighted to sell, loan, or give it to someone else. The copyright owner still has exclusive rights to the work because the buyer’s action in selling, loaning, or giving it away does not infringe on the copyright. The first sale doctrine is basically a limited right to dispose of copyrighted works in certain ways.

If there were no first sale doctrine, a person would need the authorization of a copyright owner every time they wanted to sell, loan, or otherwise dispose of books, CDs, DVDs, or other tangible works that they have bought without the copyright owner’s express authorization. Retail outlets, including bookstores and libraries, would need the copyright owner’s permission every time they sold or loaned a book, DVD, or CD.

The first sale doctrine is more limited in the case of a copyrighted work that has a digital rather than a physical form. In fact, according to the Federal Copyright Office, the first sale doctrine does not apply to the unauthorized resale of copyrighted materials that are in digital form. Rather, the Copyright Office has said that the transmission of a digital file from one user to another creates a new copy of the copyrighted work.

Several courts have adopted this pronouncement from the Copyright Office and used it in their rulings on cases. For example, a federal appellate court in New York affirmed a ruling of a federal trial court that had held that a company that permitted consumers to sell digital music files they had bought through the iTunes store had engaged in copyright infringement.

What Are Some Examples of First Sale Doctrine?

The sale of copies of a book produced by the book’s publisher is an example of the first-use doctrine. A bookstore can sell a publisher’s copy, but if the bookstore were to copy the book using a copy machine and sell these to the public for a profit, it would constitute copyright infringement.

Or, if a store sells CDs produced by a record company, it is perfectly legal. However, if the store were to make tape recordings of the CDs and sell these to the public, it would infringe on the copyright of the copyright owner. It is not allowed by the first sale doctrine.

A person or library can lend books, CDS, and DVDs to anyone who has a valid library card, but they cannot make their own copies and lend those.

Do I Keep My Copyrights Even if I Sell My Work?

The first sale doctrine assures the copyright owner that until their copyright is licensed to others or sold altogether to someone else, they retain all of the rights and privileges that their copyright confers on them.

These rights and privileges include the right to prohibit all others from distributing their work except as provided by the first sale doctrine of other exceptions, e.g., the fair use doctrine.

However, if a copyright owner sells their copyright altogether, then the new owner has all of the rights that the original copyright holder had. Or, a copyright owner can always license others to make certain uses of their copyrighted work as provided by the licensing agreement. This means that the licensee can make the use authorized by the license agreement without violating copyright laws.

Is the Work Treated Differently if It Is Possessed but Not Owned?

The issue of copyright and what uses can be made of a copyrighted work is not about the possession of a physical, tangible item but the rights endowed by a copyright. A work remains copyrighted whether a person owns a book or merely possesses the book, e.g., because a friend lent it to them.

Both the owner of a book whose copyright is owned by the author, for example, and the possessor of a book who does not own the book are both limited in the uses they can make of the contents of the book by copyright law.

The copyright applies to the contents, not the physical item. So, if a person rents a DVD, they must return the physical DVD to the business that rented it to them. To fail to do that would violate the rental agreement and subject them to civil liability. The DVD belongs to the business that rented it. But the contents of the DVD, the film it contains, is a copyrighted work that the rental business cannot duplicate and sell or rent to others.

Are There Exceptions to the First Sale Doctrine?

Federal copyright law specifically exempts certain activities from the first sale doctrine, so if a person were to engage in these activities, they would be liable for copyright infringement. Per the Record Rental Amendment of 1984, the owner of any physical copy of a copyrighted audio recording or musical performance cannot rent it to anyone.

Similarly, the Copyright Software Rental Amendments Act of 1990 computer software cannot be leased by people or entities. However, both of these prohibitions apply only to for-profit rentals. Libraries and schools can still lend out audio recordings and software.

Does the First Sale Doctrine Authorize Further Copying of the Work?

As noted in the examples above, the first sale doctrine most definitely does not authorize the further copying of a copyrighted work. The first sale doctrine and the right it confers to distribute the copy of a work acquired in a first sale apply only to selling, lending, or otherwise distributing the first physical copy of the work. The copyright owner is still protected from further unauthorized copying and distribution of the work by copyright law.

Software, again, is treated somewhat differently. Many of the authors of computer software include what are called “end-user license agreements” (EULAs) in their sales of the software. These may provide that the consumer who “buys” the software is, in reality, only buying a license to use their software. The EULA may state that this license to use the software is not transferable, and the buyer is not allowed legally to sell or otherwise convey the software to anyone else.

What if a Third Party Is Unaware That a First Sale Did Not Take Place?

An innocent third party may still be liable for infringement even if a first sale never took place. The right to dispose of copyrighted work does not allow an owner of the work the right to make any alterations to the work, incorporate it into other works, or make any use of copyrighted work that is not authorized by copyright law.

For example, a purchaser of a book cannot copy parts of the content of the book and use them in their own work without the copyright holder’s permission.

Seeking Legal Help

If you have issues with the first sale doctrine or other laws related to copyright infringement, you should consult an experienced copyright lawyer for help. If you want to know if your activities would infringe on a copyright, your lawyer can advise you. If you have been sued for copyright infringement, your lawyer can review the facts of your case and advise you of any defenses that may be available.

Or you may need or have a copyright on which someone else has infringed, and you need to know how to protect your rights. Whatever your concern, can connect you to a knowledgeable copyright lawyer who can give you the guidance you need.

Law Library Disclaimer


16 people have successfully posted their cases

Find a Lawyer