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Revisiting The License V. Sale Conundrum, Nancy S. Kim
Revisiting The License V. Sale Conundrum, Nancy S. Kim
Loyola of Los Angeles Law Review
This Article seeks to answer a question that has become increasingly more important as commerce moves from the tangible to the intangible—to what extent may a business use a contract to control the use of a fully paid product? The characterization of a transaction as a license or a sale determines what may be done with a product, who controls how the product may be used, and what happens in the event of a dispute. The past generation has seen a seismic shift in the way businesses distribute their products to consumers. Businesses often “license” rather than “sell” their products, …
Intellectual Property's First Sale Doctrine And The Policy Against Restraints On Alienation, Lorie M. Graham, Stephen M. Mcjohn
Intellectual Property's First Sale Doctrine And The Policy Against Restraints On Alienation, Lorie M. Graham, Stephen M. Mcjohn
Texas A&M Law Review
The first sale doctrine decouples intellectual property and physical property. Suppose, at an auction at Sotheby’s, someone bought a contemporary painting by Chuck Close. The buyer now owns the physical painting, but the copyright to the painting remains with the owner of the copyright—the painter Chuck Close or whomever Close may have transferred the copyright to. Absent the first sale doctrine, if the buyer either sold the painting or displayed it to the public, the buyer would potentially infringe the copyright in the painting. The copyright owner has the exclusive right to display copies (including the original, the first copy) …