Copyright Protection for Goods Made and Sold Abroad: Supreme Court Holds That the First Sale Doctrine Permits the U.S. Resale of Copyrighted Works Made and Sold Overseas

Sullivan & Cromwell LLP - March 21, 2013

In Kirtsaeng v. John Wiley & Sons, Inc., the Supreme Court held that the U.S. Copyright Act permits the subsequent domestic resale of copyrighted works lawfully manufactured abroad for overseas markets and initially sold outside of the United States. In a 6-3 decision written by Justice Stephen Breyer, the Court found that there was no “geographical limitation” to a provision of the Copyright Act that permits the owner of a copy “lawfully made under this title” to resell that work—the so-called “first sale” doctrine.

The first sale doctrine allows copies of copyrighted material that are sold with authorization of the copyright owner to be resold on a secondary market in the U.S. without risk of infringement. A prime example is the market for used books. There had been disagreement—and a split among the Courts of Appeals—about whether a U.S. copyright holder could prevent the importation and resale of products that were initially made and distributed outside of the U.S. with that holder’s permission. By applying the first sale doctrine to authorized foreign sales, the Kirtsaeng decision may have consequences for a broad range of products manufactured and sold abroad.