First Sale Doctrine: The three words you’ve likely never heard that allow you be in this business.
Chances are, you’ve never really questioned the legality of selling vintage t-shirts. Find shirt, sell shirt, buy more shirts. It’s not until you’re challenged by a very official-sounding message that you’re forced to even think about it. Maybe it’s Ebay’s VeRO (Verified Rights Owner) program that removed your item, or Etsy pulling a tee for Intellectual Property Infringement. Maybe it’s someone with an actual connection to what’s on the shirt (I’ve been bullied twice this way, once by the previous owner of an 80s youth camp and more recently by the lead singer of a band I actually like).
Whatever the case, it’s not only frustrating, it can also be a little intimidating when phrases like “cease and desist,” “copyright infringement,” “law office of,” and “forced to take further action” get thrown around. So what’s the deal then? Am I breaking any laws selling vintage tees? The answer is usually no, but sometimes it actually is a great big YES.
Luckily, your good friends here at Defunkd are going to get to the bottom of this for you and arm you with the knowledge you need to be the pain in the ass you should be when you’re in the right… aaaand when to just shut up and accept the fact you got busted by the vintage police. To help us out, we’re turning to long-time vintage enthusiast Heather McTammany aka @Skippyhahavintage. Did we mention she’s also a Law School graduate and passed the Bar?
*Disclaimer: It should be noted that nothing in this article should be taken as legal advice and its purpose is only to inform.
Wax and Threads (W&T): Heather, thank you so much for agreeing to chat and sharing some of your knowledge. Not only have you been into vintage for years, but you also have a law background, right?
Heather McTammany (HM): Thanks for having me. Yes, I started selling vintage t-shirts on eBay in 1999 during Law School at UNC. I graduated in 2002 and passed the Bar that Summer. I worked for a firm in uptown Charlotte for 3 months before Urban Outfitters ordered ten thousand of two of our t-shirt designs from Vintage Vantage. So, I quit the law job to move to California and do Vintage Vantage full time. I have not kept up my law license, but 18 years later I’m confident analyzing legal issues and writing stern letters
W&T: Oh yeah. I remember hearing something about the original design tees many years ago. You had a pretty nice run with those.
HM: We did hit it at the right time and sold tons of goofy t-shirts online and across the world in mall stores from 2002 until we closed shop in 2010. At the same time, we’d go to Rose Bowl flea markets and rag houses in Sun Valley LA and come home with thousands of 70s and 80s tees to re-sell on our website. That was the fun part.
W&T: So you’ve had plenty of experience on both the creation side of tees as well as the resale side. I’m sure over the years you’ve had some run-ins with “copyright infringement” accusations for vintage tees, but what about for the original designs? Was it smooth sailing on that side from a legal standpoint?
HM: That’s funny, in fact, it was not always smooth. We had a huge windfall in 2003 when American Eagle ripped off our “Detroit Is For Lovers” design with their identical graphic “Detroit Is Built For Lovers” tee. We hired a couple of young guy lawyers who sent AEO a cease and desist letter and negotiated a hefty settlement for us to make up for the damages they caused by stealing our design. Other than that there were a handful of sellers who were bootlegging our designs over the years, and a cease and desist letter usually took care of those.
W&T: That is so badass! AE bootlegged your design and you stuck it to the man. Love to hear it. So bootlegging is basically always illegal, right? Rap tees, lot tees, bootleg Bart, swap meet Nike, etc. are all illegal to manufacture, but what about once they’re vintage?
HM: Yes, bootlegging is always illegal. The First Sale Doctrine has been the law of the land in the US since 1908 and it says that once the owner of a copyright, say on a t-shirt design or a book, first sells or gives away a copy of it, the new owner of that copy can do whatever they want with that copy. They can resell that copy for 5 million dollars or light it on fire. What they cannot do, legally, is make more copies of that copy and sell those. So yeah, bootleg Barts, swap meet Nike, and the like are both illegal to manufacture and illegal to re-sell. The copyright holder, here Nike or 20th Century Fox for the Simpsons, has an exclusive right to distribute items with their trademark. If someone bootlegs a design and you buy it legitimately, you are not buying any more rights than the bootlegger had, which was zero. Even if you wait 20 or 30 years, the bootlegged tee does not become legitimate just by passing time. There’s always a chance you’ll get away with it, especially in a one-off situation, but if Nike or Fox comes after you for selling a bootlegged tee, you don’t have rights to sell it against them, even if you were not the bootlegger.
W&T: This all sounds like something that should be common knowledge in this business, but it’s surprisingly not. I’ve had multiple items pulled from major selling platforms over the years (some justifiably so), but is there anything that can be done when an item is unjustly pulled or called out that actually does fall under the protection of The First Sale Doctrine?
HM: You’re absolutely right, more sellers should know their rights and they don’t, I think because the selling platforms have decided to not rock the boat and instead take the side of the powerful corporation’s lawyers 100% of the time and deactivate listings that sellers have the right to sell, without any investigation into whether that item really infringes the corporation’s copyright or not. This is extremely frustrating especially on platforms that knock sellers down in the search algorithm for every “Notice of Copyright Infringement” whether they’re valid or not. I have received about 12 of these notices from Etsy in the last decade selling there. In each case, I knew my item was not infringing on the corporation’s copyright because they were authentic, not bootlegged, Hard Rock Cafe, Ford Motors, and Hallmark tees, which I had every right to resell under the First Sale Doctrine.
I emailed the corporation’s lawyer, copying Etsy Legal, with an explanation of the FSD and how the t-shirt I was selling did not infringe their copyright. I demanded they stop tortiously interfering with my business. I told them I was relisting the non-infringing item and to leave me alone. Most times I got no reply but my relisted items were not deactivated. Once I got an apology and an acknowledgment that I was correct. That was the best.
W&T: I bet that was super satisfying. I have a feeling that your confident reply and knowledge of your rights is what made them take a second look. This information is extremely valuable, so your willingness to take the time to share is much appreciated. On behalf of myself and the vintage community, thank you, Heather. May your teachings live on in the form of many stern letters.
HM: Thank you! I hope this gives other vintage sellers the confidence to stand up to corporations that deactivate their legitimate listings. Know your rights and fight the power!
Bonus Content: Heather is even sharing her template letter for anyone to use if they find themselves in one of these situations. Feel free to copy/paste and fill in the blanks as is, or tailor it to your exact situation.
Hello _________ (corporate lawyers name), and ____ Legal,
I assume you all know that the First Sale Doctrine covers my re-selling vintage clothing, including the _____ year old vintage _____ t-shirt I had listed which you unilaterally deactivated yesterday:
“The first-sale doctrine creates a basic exception to the copyright holder’s distribution right. Once the work is lawfully sold or even transferred gratuitously, the copyright owner’s interest in the material object in which the copyrighted work is embodied is exhausted.”
I am not making these items, I go to Goodwill and yard sales to find these things which were lawfully sold 20+ years ago, and re-sell them on ___.
I am well apprised of my rights, and your rights in this item were exhausted when somebody lawfully purchased it ____ years ago. Do you disagree?
I am certain that I am not infringing on anybody’s copyrights, and I am going to re-list my authentic vintage (not made by me) ________ t-shirt for sale on ___, and kindly ask you to stop tortiously interfering with my business by deactivating listings for vintage items which I have 100% right to sell.
Thank you,
(your name here)