When entrepreneurs, technology startups, new media companies, and other innovation firms, including manufacturers and retail stores embark on product development and merchandise selection, the issue of copyright protection, copyright infringement, and defenses such as the first sale doctrine may arise. Business and new startups are well advised to consult with an experienced fashion law and copyright attorney to evaluate issues pertaining to copyright protection and various defenses available to merchants and businesses selling consumer packaged goods (CPGs).
Copyright Protection of General Merchandise
Copyright protection is a form of intellectual property and protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyrights are governed by the United States Copyright Office does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.
In other words, if a product for sale contains a work of art that is not original and otherwise sourced from a third party, that work is likely protected under copyright law in the United States, and a legal right to sell that work must be obtained.
Under the Copyright Act (the “Act”), 17 U.S.C. 101 et seq., visual artists, like other authors, are provided a bundle of exclusive rights, including rights to reproduce, distribute and create adaptations of their works. These rights, however, do not affect the disposition of the original work of authorship. Instead, the first sale doctrine, codified in 17 U.S.C. § 109, generally permits the lawful owner of a copyrighted work “to sell or otherwise dispose of the possession of that copy” and to “display that copy publicly . . .” without the authorization of the creator.
For many works, such as books, musical works and sound recordings, this system provides substantial economic benefits and incentives for creators. A question is whether the system is as advantageous for certain artists of visual works. For some artwork, where the primary financial benefit may be through the sale of the original work rather than multiple copies, the creator may receive less financial benefit from the work than do subsequent collectors or other downstream entities that are able to take advantage of the increase in the value of the artwork over time. A resale royalty right is one way by which to address this perceived inequity by allowing artists to receive additional compensation from later sales of the original work of art. Some foreign countries have experience with this approach.”
Copyright Protection Attorney
Copyright infringement is a complex area of law that requires expertise and familiarity with the element of copyright protection, and its various defenses and licenses available to third parties. An experienced copyright protection attorney can advise entrepreneurs, technology startups, and manufacturers of merchandise and CPGs on their copyright protection strategy, licensing and defenses available in the United States.
