I thought you said "Any feedback on this?".

Get a lawers advice since you made a request essentially saying you didn't know yourself. It leaves you wide open when you make public statements then go ahead without any legal basis in the use of anothers possibly protected property, artist or not.



Introduction
For at least ninety-five years, the first sale doctrine in U.S. copyright law has allowed those who buy copies of a copyrighted work to resell, rent, or lend those copies. Copyright law is often viewed as a balance of providing authors with sufficient incentives to create their works and maximizing public access to those works. And the first sale doctrine has been a major bulwark in providing public access by facilitating the existence of used book and record stores, video rental stores, and, perhaps most significantly, public libraries.

In short, this Article seeks to determine what the benefits have been of a system in which copyrighted works are distributed in tangible copies that are freely alienable without the consent of the copyright owner. That system has produced benefits to the public, and it seems appropriate to consider whether those benefits—or other compensating benefits—will accrue to the public when works are disseminated by electronic transmission, or by encrypted digital copy, rather than in traditional copy form. If a shift away from the distribution of tangible, freely alienable copies threatens to eliminate desirable effects of the first sale doctrine, then we will need to consider amending the Copyright Act to preserve those benefits.

I. Background: The First Sale Doctrine and the DMCA Report
Since the first U.S. copyright act in 1790, copyright owners have had the exclusive right to “vend” copies of their works.4 But since at least 1908, copyright law has expressly recognized, first by court decision,5 and later by statutory provision,6 that the copyright owner’s right to control the sale of a particular copy of a work ends after the owner’s first transfer of that copy.7 This first sale doctrine has generally been viewed as a recognition in copyright of the law’s historic disfavor of restraints on the alienation of personal property.

Current copyright law gives owners the exclusive right to distribute copies of their works to the public “by sale or other transfer of ownership, or by rental, lease, or lending.”8 As in the past, however, the copyright owner’s control over subsequent distribution is limited. Section 109(a) of the Copyright Act provides, “Notwithstanding the provisions of section 106(3) [granting the exclusive right of distribution], the owner of a particular copy or phonorecord lawfully made under this title . . . is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.”9 As a result, one who owns a lawful copy of a copyrighted work may resell that copy or may rent it (in most cases),10 lend it, or give it away. Used bookstores, used compact disc (CD) stores, public libraries, and video rental stores all flourish in the shelter of the first sale doctrine.

In several places, the Copyright Office’s report did note that future developments might have “serious consequences for the operation of the first sale doctrine” that might require legislative attention at some later date.22 In short, the Copyright Office recommended a “wait and see” approach to the question of whether changes are required to the first sale doctrine in light of the use of technological protection measures or developments in electronic commerce. The Department of Commerce report took a similar position.23

a. Works Out of Print
Copies of a work most often become unavailable from the copyright owner because the owner allows the work to go “out of print.”49 Copyright owners discontinue the sale of copies of significant numbers of copyrighted books and sound recordings each year. With respect to sound recordings, one estimate is that sixty percent of all titles are out of print.50 As for books, “[i]n 1999, some ninety thousand books—many worthless, many others valuable—went out of print, according to the rueful vice-chairman of Barnes & Noble . . . .”51 Another source suggests that about 120,000 book titles may go out of print each year.52 This is a substantial number, as somewhere between 70,000 and 120,000 new titles are published annually.53 No doubt the decision to allow a work to go out of print is generally an economically rational one for the publisher, who presumably perceives insufficient demand for copies of the work to justify the expenses involved in creating, storing, transporting, and marketing copies in the quantity needed to make a profit.54



In some cases, an author’s heirs, as successors to her copyright, may seek to suppress a work. Lord Macaulay pointed out that James Boswell’s son felt that Boswell’s Life of Johnson portrayed Boswell “in a ludicrous and degrading light” and that had the son succeeded to the father’s copyright he would likely have suppressed the work.63 In general, if an author (or her heir) owns the copyright in a work, she may refuse to allow any further exploitation of the work, whether by sale of copies or by performance or display. In effect, the author seeks to use the copyright in the way an author could use the right of withdrawal in some countries that recognize moral rights.64

Is this availability effect good or bad? Continued public access to a work, even in the face of a copyright owner’s desire to suppress the work, is generally a salutary effect of the first sale doctrine. Copyright law seeks to encourage the creation and dissemination of works of authorship, and some dissemination is better than none.87 Although the law might not take a strong position on whether an individual consumer who wishes to see an Amos ’n’ Andy episode should be able to do so, it seems better to facilitate access to previously publicly disseminated works where possible.88

In sum, the first sale doctrine helps ensure some access to copyrighted works even over the objections of copyright owners, at least for works that have been distributed in copies.93 Although copyright owners may well have legitimate and economically rational reasons for withdrawing a work, many members of the public will also have legitimate interests in continuing access to such works. The first sale doctrine mediates between those competing interests, allowing a copyright owner who has distributed copies to limit access to her work by refusing to produce and distribute any further copies, but offering the public an alternative avenue by which some access to the work is possible.94 The doctrine ensures that copyright law protects copyright owners’ rights but does not give them the extreme version of control over information that existed for many years in the Soviet Union, where changes in politics would lead not just to new editions of books, but to previously circulated copies of books being withdrawn or physically altered.95


The survival of old artistic works may also be important in the creation of new works. Surviving older works may prove fertile sources for contemporary authors, seeking little-known stories and characters to incorporate into their own new creations. Derivative works—such as songs, motion pictures, and modern adaptations—may be based upon works largely forgotten until the derivative work appears.

You need to know exactly what you are doing and why.