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Who Owns the Brrr Tag and Were Regalo's T-Shirts OK?

Update: The identity of the suspect has been removed from this story. This change reflects our commitment to balance the lasting and sometimes harmful impact of digital news coverage with personal privacy concerns, especially given the nature of the accusations

This week, Louisville police arrested a man many people suspect to be the mysterious graffiti tagger Brrr. The man is accused of, among other things, stealing a batch of T-shirts from the downtown gift shop Regalo. The arrest warrant says the artist claimed the design on the t-shirts was copyrighted.

The design on the T-shirt was the semi-famous Brrr tag (pictured). The design was allegedly taken from a Brrr tag that was left on the shop window. Shop management said proceeds from the shirt's sale were to go to Brightside. 

Because it's still speculation that the man actually is Brrr we'll refer to the tag as the Brrr tag and the artist behind it simply as Brrr.

The suspect is accused of committing a crime beyond vandalism. But his arrest and the existence of the shirts (which are no longer for sale) has raised some questions regarding who owns the tag and whether Regalo can legally sell the shirts. I called Jack Wheat, a member of the intellectual property practice group at Stites and Harbison to ask about it. Here's what I learned:

  • By default, the copyright is owned by the person who creates the work, even if it's first created as an act of vandalism. (If it's created in the course of employment, the artist's employer owns it.) In this case, Brrr owns the copyright on the Brrr tag and therefore has control over how the work is reproduced.
  • But even though the copyright becomes the artist's property the moment the work is created, the artist can't effectively bring an infringement suit until the copyright is registered. The Brrr tag doesn't appear to be registered.
  • Brrr placing the tag on someone else's property does not give that person ownership of the tag. It does give that person ownership of a tagged item (possibly an illegally tagged item). If you fell asleep in the park and Brrr tagged your shirt, you could sell that T-shirt and profit from the tag on it. You could not make copies of it and sell them.
  • Brrr's ownership of the tag does not entitle him to own the derivative works. But if Brrr registered the tag and brought suit, he could potentially seek ownership of any t-shirts that were printed.

WFPL contacted Regalo earlier today and the call has not been returned.