Re: T-shirt resale

On Wed, 3 Feb 1999, Greg Ikonen <gikonen[_at_]venlaw.com> wrote:
>
> On Tue, Feb 02, 1999, Michael Juhre <michael.juhre[_at_]aig.com> wrote:
> >
> > I've had trouble figuring out. My friends are screen printing
> > politically oriented messages on T-shirts, and sell them at various
> > rallies and open air markets. The catch is, all the shirts they print
> > on are used, and therefore contain a message from the original marketer.
> > Clearly it is legal to sell used t-shirts, and clearly it would be
> > illegal to PRINT SOMEONE ELSE'S art or message on your own poltically
> > oriented shirt. But how might this situation fit in?
> >
> > Example: Could Disney bring any action against a person or organizatoin
> > that sold a used Mickey Mouse T-shirt with the words "FREE TIBET"
> > printed next to his head?
>
> This situation has arisen many times before in a trademark context.
> The trademark owner claims infringement, and the defendant claims
> protection for the message on First Amendment grounds. The cases
> usually acknowledge that trademark rights must be applied more carefully
> in the context of First Amendment claims (the most often cited case is
> Rogers v. Grimaldi, 2d Cir.), but the trademark owner almost invariably
> prevails. Just two cases (from memory) holding for the trademark owner:
> Mutual of Omaha v. Novak (8th Cir.) (Novak precluded from selling
> coffee mugs and t-shirts bearing the message "Mutants of Omaha") and
> Dr. Seuss Enterprises v. Penguin (9th Cir.)(enjoining publication of
> a book parody/satire of the O.J. Simpson murder written in the style
> of Dr. Seuss and using Seuss' trademarked/copyrighted characters).

I couldn't disagree more. The example involves the resale of used merchandise. Neither trademark nor copyright law should apply at all because anyone has the right to re-sell a t-shirt they have previously purchased(regardless of whose mark or copyright is on the shirt). The legal issue that arises is the defacement of a purchased image, which is perhaps a violation of the image owner's moral rights in some countries, but the addition of political messages is almost certainly protected speech here.

Charles McGarry
<cmcgarry[_at_]ix.netcom.com> Received on Fri Feb 05 1999 - 05:55:49 GMT