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17 USC §106(5) says that the copyright holder of work holds the exclusive right to display the work publicly:

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly

Yet I publicly wear shirts with copyrighted designs all the time, on clothing I legally purchased from the copyright holder.

  • Is this a prima facie case of infringement defensible via fair use?
  • Or is it allowed by some other legal mechanism?
  • Or is it flatly illegal and merely a terrible business idea to litigate?

I understand the first sale doctrine of §109 allows the owner of a copy to distribute their own copy, but it doesn't seem to allow display.

To add a few other examples beyond a t-shirt, what about displaying sculptures or other works of art in my yard? If I wanted to publicly display the entire text of a short story in my yard, would that be different (perhaps due to the "nature of the work" fair use factor)?

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Yet I publicly wear shirts with copyrighted designs all the time.

I'm unclear about this; do you mean T-shirts you have made yourself using copyrighted images or T-shirts you have bought?

If the former then it is a prima facie breach and you could be sued by the copyright holder. You would probably not be as it would be impracticable.

If the latter then there are 2 possibilities:

  1. The manufacturer/distributer/retailer chain all hold valid licences to put the image on a T-shirt and display it in the usual way so there is no breach involved.
  2. The manufacturer/distributer/retailer chain does not hold a valid licence in which case there is a breach and the copyright holder would target, say Wall-Mart rather than you.

what about displaying ... works of art in my yard?

Notwithstanding that it can be viewed from a public space, your yard is not public; therefore this is not public display.

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    Thanks for your answer! Sorry, I should have been more clear. For example, suppose I buy a shirt with a Mickey Mouse design directly from the Disney Corporation who has every right to make and sell the shirt. According to §106, I don't appear to have the right to publicly display this shirt (i.e., on my body). I can update the question with this example if you like, at the risk of rendering much of your answer obsolete. – apsillers Aug 19 '15 at 23:01
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    In that case Disney have granted you (implicitly) a licence to wear the shirt and display the copyrighted image. To be clear, a copyright holder can licence anyone to do anything the copyright holder can do. – Dale M Aug 19 '15 at 23:03
  • So what is public display, then? Most billboards are on private property, for example. Does that mean that displaying something on a billboard is not public display? – phoog Sep 29 '16 at 18:27
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    @phoog 17 USC §101 defines (local, non-transmitted) public display as "to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered." As long as your yard isn't surrounded by a gathering of strangers, you are not performing "public display" under copyright law. That said, I am also unconvinced by "non-public (visible) spaces exclude the possibility of public display," especially in light of the definition in §101, which can be based solely on who's viewing the work. – apsillers Sep 29 '16 at 19:10
  • @apsillers my front yard is visible from a heavily trafficked street with an municipal bus route and hundreds of pedestrians an hour passing by on any day with good weather. It may not be a "gathering" of strangers, but I suppose any court would find that displaying something there constitutes public display. – phoog Sep 29 '16 at 20:31
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I understand the first sale doctrine of §109 allows the owner of a copy to distribute their own copy, but it doesn't seem to allow display.

In fact §109 does allow this use: such a limited display of a copyrighted work is enabled by 17 USC §109(c), which is a specific exemption to §106(5) quoted in the question above:

(c) Notwithstanding the provisions of section 106(5), the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located.)

That is, if I am the lawful owner of a copy of a copyrighted work, the exclusivity of the copyright holder's right to public display is limited by my right under §109(c) to display my personally-owned copy of the work to physically nearby viewers.

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