## Facts

- Raymond Joseph Atherton bought, sold, and collected 16mm motion picture prints, advertising them in catalogues to collectors and dealers.
- He sold prints of copyrighted feature films, including “The Exorcist,” “Airport,” “The Way We Were,” “Forty Carats,” and “Young Winston,” for prices ranging roughly from $135 to $500.
- The government’s evidence showed Atherton lacked any license or permission from the copyright owners to sell these prints.
- For most films, the copyright owners had entered agreements with a television network granting broadcast rights and allowing the network to retain physical prints.
- Atherton contended these studio–network transactions could constitute “first sales,” permitting resale of particular lawfully acquired copies under the first-sale doctrine.
- Atherton was convicted in the district court of five counts of criminal copyright infringement under 17 U.S.C. § 104 and one count of interstate transportation of stolen property under 18 U.S.C. § 2314 (based on transporting a print of “The Exorcist”).

## Issues

1. Whether 17 U.S.C. § 104 is unconstitutional as applied to criminal copyright infringement.
2. Whether, in a § 104 prosecution, the government must prove beyond a reasonable doubt that the copies were not subject to a first sale and that the defendant knew that fact.
3. Whether the evidence was sufficient to support the § 104 convictions on the “no first sale” and scienter elements.
4. Whether the evidence was sufficient to support the § 2314 conviction, including proof that the transported property had a value of at least $5,000.

## Decision

- The Ninth Circuit upheld the constitutionality of 17 U.S.C. § 104.
- The court reversed all five § 104 convictions because the government failed to prove that the specific prints sold had not been the subject of a first sale and failed to prove Atherton’s knowledge of that status.
- The court reversed the § 2314 conviction because the government failed to prove the transported print’s value met the $5,000 statutory minimum.

## Legal Principles

- In a criminal prosecution under 17 U.S.C. § 104, the government must prove: (1) infringement of a copyright; (2) of a work not subject to a “first sale”; (3) willfulness; (4) knowledge that the work had not been subject to a first sale; and (5) profit.
- The first-sale doctrine limits the copyright owner’s distribution control over a particular copy after a lawful first sale; in a criminal case relying on unauthorized distribution, the government bears the burden to prove the absence of a first sale when it is an element of the offense.
- A conviction under 18 U.S.C. § 2314 requires proof that the transported property meets the statute’s jurisdictional value threshold; evidence of sales in the hundreds of dollars does not, by itself, establish a $5,000 value.

## Conclusion

The Ninth Circuit reversed Atherton’s convictions because, although the government proved unauthorized sales for profit, it did not establish beyond a reasonable doubt that the specific film prints were not lawfully in commerce after a first sale or that Atherton knew they were not, and it also failed to prove the $5,000 value element required for interstate transportation of stolen property.


United States v. Atherton, 561 F.2d 747 (9th Cir. 1977)