I am a bookseller on eBay. I recently purchased an art book from a distributor. I decided to cut up the book to try and sell the individual pages. The publisher of the book found these listings on eBay and informed me that I was in violation of the book's copyright. Even though I did not copy or make any duplicates of the book's content, the publisher contacted eBay and within 24 hours eBay removed the listings. Aren't my actions protected by the first sale doctrine? Is it against copyright law to cut up a legally purchased book and resell the individual pages? Does the publisher have the legal right to decide how I sell the book?
Intellectual Property Law Attorney
That's an interesting question.
The "first sale doctrine" -- codified at 17 USC 109(a) -- provides that the owner of a physical copy of a copyrighted work may lawfully sell that copy w/o infringing on any rights retained by the copyright owner. This doctrine, however, limits ONLY the copyright owner's distribution right and not any of the other rights the copyright owner enjoys: such as the rights of reproduction, display, and to prepare derivative works. See Precious Moments, Inc. v. La Infantil, Inc., 971 F.Supp. 66, 67-68 (D.Puerto Rico,1997).
In the states within the 9th Circuit (which is most of the west coast) the rule, therefore, is that while the owner of a copyrighted work may sell or otherwise transfer his or her ownership interest in the physical copy of a work, the owner is NOT free to create and sell a derivative work that is created from his or her particular copy. See Mirage Editions, Inc. v. Albuquerque A.R.T. Co., 856 F.2d 1341, 1344 (9th Cir.1988).
The question in your case is whether you're creating a derivative work when you cut out a page -- i.e., is that one page a "derivative" work. If yes, then I think that offering that page for sale is an infringement. If no, then the first sale doctrine would immunize you against a claim of infringement. I don't know the answer to that question. Colleagues?
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Corporate / Incorporation Lawyer
I'm not aware of any case law that addresses this situation. That said, Mr. Ballard's response appears to be right on point. In addition to your question about the first sale doctrine, and Mr. Ballard's question about whether the cut up pages are derivative works, there are likely questions here about eBay's notice and take down policies, and how they were handled in your case. As usual, those questions would be better answered with more facts.
*Of course, this is not legal advice, and please don't consider it as such.*