17 Jun Guild Member Ed Shems Testifies on Copyrights and First Sale

Guild member Ed Shems represented the Graphic Artists Guild, the Copyright Alliance, and concerns of individual artists at a hearing in front of House Judiciary Committee members on June 2. Shems spoke on the impact proposed changes to copyright law regarding the first sale doctrine could have on artists. The proposed changes would expand the doctrine of first sale, permitting licensed digital materials to be resold by the purchaser.

In the past, the doctrine of first sale has had little relevance to artists, who have been able to control the copyrights to their work through licensing agreements. The doctrine permitted the reselling of tangible materials, such as books or CDs, but had no impact on licensed creations. The proposed changes to the first sale doctrine would permit digital materials to be resold as if they were tangible goods. As Shems testified, “There is no such thing as a ‘used book’ in the digital world…. every digital book sold under the first sale doctrine would compete directly with my client’s sales – this means my clients will have fewer sales, and fewer resources to devote to illustrate or design their works. As a result I would have fewer clients and we might see a decline in the industry in which I make my living.”

Additionally, Shems noted that the proposed changes would make it difficult to police infringement of his artwork: “As a creative professional and small business owner, I am able to choose which clients I will work with. Under an extension of the first sale doctrine, where copies of my work could be digitally sold to others I don’t know or work with, that right would be taken away from me.” Finally, Shems pointed out that the expansion of the first sale doctrine to cover licensed-based transactions would force creators to raise their fees to cover all rights to their work, rather than negotiate limited rights tailored for each client’s needs and budget, and would create a de facto work-for-hire arrangement.

Shems’ full remarks to House Judiciary members can be read here. Shems will also take part in the US Patent and Trademark Office (USPTO) roundtable on First Sale Doctrine on June 25 at Harvard University in Boston. The USPTO has scheduled a series of roundtables and discussions on copyright and intellectual property issues throughout the summer. The full schedule of talks has been posted on our website. The general public can attend the events in person or via webcast.

At top of page: Ed Shems, Guild Advocacy Chair Lisa Shaftel, and Sandra Aistars from the Copyright Alliance after testifying. Used with permission.