Isn’t This Copyright Infringement?

We recently fielded an inquiry from a photographer client who contacted us when she saw one of her photographs displayed on the wall of a national furniture retailer. The photograph had been torn out of a photography compilation book, framed, and decoratively placed on the wall of the store. Of course, as soon as she saw it she thought, “isn’t this copyright infringement?” The answer is a little more complicated than it would seem.

The owner of a valid copyright enjoys an enumerated set of rights laid forth in the Federal Copyright Act, 17 U.S.C. §106, including the right to reproduce, distribute, and display publicly their original work of authorship. However, there are certain exceptions to these rights – one of which was the impetus of our client’s inquiry.

• 109 of the Act lays out what is known as The First Sale Doctrine. The First Sale Doctrine is an exception to the enumerated rights referenced above and is often used as an affirmative defense to an action of copyright infringement. In short, when there is a legal, valid sale of an item that is copyrighted, the copyright owner extinguishes their exclusive rights in regards to that copy – including the right of public display. The owner of that copy now has the legal right to sell or otherwise dispose of the possession of that copy.

For example, if you legally purchase a DVD copy of a movie, you are now able to re-sell that specific copy at a garage sale or lend it to a friend. If you purchase a piece of artwork from a painter, you are now able to display that artwork in your home or your office – all without fear that you are infringing the copyright owner’s statutory right to distribution or public display.

Applying this to our client’s inquiry – the furniture store was indeed able to display our client’s photograph decoratively on the wall of their store, because they had validly purchased the photography book that it came from. Because of the valid purchase of the book, the store now has the right to publicly display the photograph (or resell the book, dispose of the book, etc.).

However, this does not mean that purchasers now have free reign to do whatever they please after they’ve purchased a copyrighted item. There are limitations that go along with the First Sale Doctrine. The furniture store only has the right to display, re-sell, dispose of, etc. that specific copy of the work. For example, they cannot make photo-copies of the photograph and begin to sell them to customers. There are no reproduction rights granted with the first sale doctrine. All rights acquired are limited to the specific copy of the item that was purchased.

So, unless our photographer client discovers that the image has been copied from the compilation book and displayed in multiple stores, she probably doesn’t have a case for copyright infringement against the retailer.

If you have any questions involving copyrights and photography schedule a consultation with us today.