Copyright owners and distributors have long been at odds over the unauthorized importation of lawfully manufactured goods—whether foreign-made or initially made here and reintroduced after exportation. These “gray market” goods often end up in discount outlets at prices underselling copyright owners’ authorized goods. In a number of cases in which the goods themselves were not copyrightable (e.g., beauty products, perfumes and watches), copyright owners had affixed copyrightable designs to the products or packaging in order to take advantage of the exclusive right of importation provided in §602(a) of the Copyright Act (the “Act”).1 In a 1998 decision, Quality King Distributors v. L’anza Research International,2 the U.S. Supreme Court considered whether §602(a) of the act, banning unauthorized importation of copyrighted material, was limited by the “first sale doctrine” of §109(a), which permits the resale of copies “lawfully made under this title.”
Under the first sale doctrine, once a copyright owner authorizes the sale of copies of a copyrighted work, he no longer may exercise the distribution right with respect to those particular copies. In Quality King, the unauthorized distributors argued that the importation right under §602(a) derives its force from the §106(3) distribution right, and thus must be subject to the first-sale limitation, as is domestic resale.
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