The first sale doctrine and fair use in copyright law

¶ … purchased the book Engineer in the Courtroom at your local bookstore. Why may you sell it to a peer without violating the owner's exclusive right to distribute the work? What principle governs your answer? Could you make a translation of the work? Discuss.

The author's copyright in the work covers only the intellectual expression of his ideas in a fixed medium; in this case, that fixed medium is the book. The author does not have any copyrights or other ownership rights in the physical medium in which his ideas are fixed.

Distribution in the context of copyright issues relates to the process of reproducing additional copies of the work, not to the transfer of ownership of the fixed medium. Anyone with legal possession of a book (i.e. As opposed to where a book is stolen or where physical ownership is otherwise disputed) may sell, transfer, or give that book to anybody else without raising any copyright infringement issues from that type of transfer.

A translation into another language is a derivative work and it must be authorized by the original copyright holder before any such derivative work can be distributed. However, where the purpose and character of the translation relates to the private educational use of the translator and where it does not have any likely effect on the market of the original work, the translation would likely satisfy the fair use doctrine.

Therefore, making a single translation of the work without distributing it or making any commercial use of it is probably allowed under fair use; distributing, selling, or commercially using additional copies of the translated derivative work would be an infringement of the author's intellectual property rights.

Question 2. 17 employees of the Gregg Corporation are enrolled in a company leadership program. As a part of the training class, Gregg hires Paul Photographer to take a picture of the group so each person can have a keepsake. However, the company is closely watching its expenditures, so it only orders one picture from Paul, and then it goes to Wal-Mart to make 17 copies for the employees in the class. Next, the HR manager scans the original picture and places it on the company web site. Are there any copyright problems here? If so, what are they are who is responsible for any potential violations?

The photographer owns the copyright in the photograph. Therefore, Gregg Corporation may only make "personal" use of the photograph, such as by blowing it up and displaying it in their office. Gregg Corporation may not reproduce the photograph by making additional copies of it and doing so violates Paul Photographer's exclusive copyright even before an of those copies is actually distributed in the manner described.

In the event that the customer does make unauthorized copies, the customer and Wal-Mart are both jointly and severally liable to Paul for this unauthorized use and copyright infringement.

Naturally, since mere duplication of the photograph already constitutes a copyright infringement, any subsequent commercial use of the work is also a copyright infringement. However, whereas Wal-Mart is jointly responsible for the original violation of creating unauthorized reproductions, it is likely that only the Gregg Corporation will be considered to have made commercial use of the unauthorized subsequent use of the copyrighted image.

In that case, there is no probably no personal liability on the part of the specific employees who actually inserted the image into the company website; they were not personally responsible for verifying the legal status of the copyright ownership and were merely performing the functions directed by their employer, Gregg Corporation.

Question 3. Identify at least 2 policies than can be discussed in a company's employee manual to enhance protection of its intellectual property. Please provide specific examples and language.

Policy 1 -- Employing Copyright Symbols and Prohibited-Use Statement

Employees and departments responsible for the publication of any original copyrighted work shall institute appropriate procedures to ensure that a copyright symbol and a complete prohibited-use statement appear at the end of any such work. The purpose of this precaution is to maximize the ability of the company to pursue violations of its copyright in an appropriate court of law or other forum and to ensure that the company is entitled to the maximum compensation allowed by law for copyright infringement of its intellectual property. That notice shall read as follows:

No part of this copyrighted intellectual property may be reproduced for any purpose, whether or not for profit, without the express written authorization of XYZ Company. Any violation of XYZ copyright of this protected material will be pursued to the fullest extent of the applicable criminal and civil law against any and all parties involved.

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