Re: T-shirt resale

On 02/10/99, Charles McGarry <cmcgarry[_at_]ix.netcom.com> wrote:
>
> This entire thread seems to me to be an academic exercise that
> is completely missing the point of the original post. All of the
> parody/satire/infringement cases being discussed by everyone
> involve the sale of a NEW product, not the resale of a used
> product. When you buy a t-shirt in the United States, you can do
> pretty much anything you want with it. You can alter it, sell it
> destroy it, or wear it in public. You don't need permission to
> write on your own clothes.

I agree there is a potential distinction to be drawn between the sale of a new product and the resale of an existing product. But I am afraid that the discussion is NOT merely academic, and that you may, in fact, need permission to write on your own clothes [at least if you then try to re-sell them.]

Under U.S. law, the first-sale doctrine [sec. 109] provides that the owner of a lawfully-purchased copy may resell that particular copy without the permission of the copyright owner. But the first-sale doctrine is ONLY a defense to the distribution right; it has been expressly held that the first-sale doctrine is NOT a defense to the right to prepare derivative works. Thus, if the work printed on the t-shirt is altered or modified (by drawing on it, or by any other means), then the person doing the alteration has prepared a derivative work within the meaning of the statute, and may be liable for infringement. There is no express exception for personal non-commercial use, unless the alteration falls under the fair use doctrine. Hence, my discussion of the fair use case law.

Consider the Mirage case: the owner of a lawfully-purchased authorized copy of a book of art prints separated the pages from the book, mounted each page on a ceramic tile, and resold them. The Ninth Circuit held that this created an infringing derivative work, even though the defendant was merely re-selling a copy that he had lawfully purchased. Mirage has been criticized in other opinions, on the ground that mounting the tile was not a "modification" within the meaning of the statute; but that critique would not save someone who added original expression to a t-shirt, such as altering the t-shirt to parody the work printed on it.

So, yes, you can wear your t-shirt, destroy it or re-sell it. And you can "alter" the shirt in the sewing sense. But under U.S., you can't alter the work printed on the shirt, and you can't write on it, without potentially violating the right to prepare derivative works.

I am of the opinion that Mirage was wrongly decided, and that altering one's own copy of a t-shirt should be a fair use. And, I grant you, it is extremely unlikely that an individual who altered a single shirt would be sued. [If that makes the discussion academic, so be it.] But if you bought 1000 shirts, altered each one of them, and re-sold them, I think there is a good chance that you would be sued, and a strong likelihood that you would lose.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Wed Feb 10 1999 - 20:04:00 GMT