Only Musical Recordings Eligible for Copyright First Sale Exception

Addressing for the first time the issue of whether the record rental exception to the copyright first sale doctrine applies to all sound recordings or only musical sound recordings, the U.S. Court of Appeals for the Sixth Circuit upheld the district court, holding that only musical sound recordings are subject to the exception. Brilliance Audio, Inc. v. Haights Cross Communications, Inc., Case No. 05-1209, (6th Cir., Jan. 26, 2007) (Gibbons, J.; Kennedy, J., dissenting in part). The Court also discussed the first sale doctrine as it applies to trademark infringement.

The plaintiff sells audio books in two editions: one for the retail market and one for libraries. The defendants allegedly repackage and relabel Brilliance retail editions of audio books as Brilliance library editions and then rent, lease or lend them. The repackaged audio books still bear Brilliance’s trademark. Brilliance sued Haights for copyright and trademark infringement, dilution and unfair competition. Haights