In a Supreme Court decision reported in the NY Times in an article by Adam Liptak, he wrote that the Supreme Court decided that the importation of goods made under copyright, (including a “dress under design copyright) could be bought at lower price abroad, and imported and resold in the US.
The issue in the case was books bought in Thailand, and resold in the US, but the decision was more general.
In the US Copyright Act there is specified a “First-Sale Doctrine” that includes the phrase that it applies to goods “lawfully made under this title”.
The question was a geographic one. The answer was that a copyrighted article made and sold (first sale) abroad, a what ever price including a lower price than in the US, could be imported into the US and sold here by the purchaser.
While I am not a lawyer, and not giving legal advice, it seems that as a matter of principle that this decision would apply to goods “lawfully” contracted for and made by a foreign supplier.
For example: If a vendor ordered 100 pieces of a copyrighted design from a manufacturer, but picked up and took delivery of only 20 pieces, then the 80 pieces left would be “lawfully made”. If the manufacturer in turn sold the pieces to a buyer, who then imported them into the US, it seems to me that the copyright holder under this decision would have an action against the manufacturer but not against any subsequent buyers. Always check with your own legal counsel on a matter like this.
However, if the manufacturer made 120 pieces of a copyrighted design, and the vendor picked up the 100 that were ordered and “lawfully made” then it seems to me that the manufacturer counterfeited 20 pieces that would be subject to the usual laws on the importation of counterfeit goods into the US.
The case was Kirtsaeng vs. John Wiley & Sons 11-697.
