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to impose. This does not mean that conditions on future disposition of copies or phonorecords, imposed by a contract between their buyer and seller, would be unenforceable between the parties as a breach of contract, but it does mean that they could not be enforced by an action for infringement of copyright. Under section 202, however, the owner of the physical copy or phonorecord cannot reproduce or perform the copyrighted work publicly without the copyright owner’s consent.
To come within the scope of section 109(a), a copy or phonorecord must have been “lawfully made under this title,” though not necessarily with the copyright owner’s authorization. For example, any resale of an illegally “counterfeited” phonorecord. would be an infringement, but the disposition of a phonorecord made under the compulsory licensing provisions of section 115 would not.
Effect on display of copy
Subsection (b) of section 109 deals with the scope of the copyright owner’s exclusive right to control the public display of a particular “copy” of his work (including the original or prototype copy in which the work was first fixed). Assuming, for example, that a painter has sold his only copy of an original work of art without restrictions, would he be able to restrain the new owner from displaying it publicly in galleries, shop windows, on a projector, or on television?
Section 109(b) adopts the general principle that the lawful owner of a copy of a work should be able to put his copy on public display without the consent of the copyright owner. The exclusive right of public display granted by section 106(5) would not apply where the owner of a copy wishes to show it directly to the public, as in a gallery or display case, or indirectly, as through an opaque projector. Where the copy itself is intended for projection, as in the case of a photographic slide, negative, or transparency, the public projection of a single image would be permitted as long as the viewers are “present at the place where the copy is located.”
The exemption would extend only to public displays that are made “either directly or by the projection of no more than one image at a time.” Thus, even where the copy and the viewers are located at the same place, the simultaneous projection of multiple images of the work would not be exempted. For example, where each person in a lecture hall has his own viewing apparatus in front of him, the copyright owner’s permission would generally be required in order to project an image of a work on each individual screen at the same time.
The committee’s intention is to preserve the traditional privilege of the owner of a copy to display it directly, but to place reasonable restrictions on his ability to display it indirectly in such a way that the copyright owner’s market for reproduction and distribution of copies would be affected. Unless it constitutes a fair use under section 107, or unless one of the special provisions of sections 110 or 111 is applicable, projection of more than one image at a time, or transmission of an image to the public over television or other communications channels, would be an infringement for the same reasons that reproduction in copies would be.
Effect of mere possession of copy or phonorecord
Subsection (c) of section 109 qualifies the privileges specified in subsections (a) and (b) by making clear that they do not apply to
