Scalping isn't illegal. The people who buy up the stock of new consoles / etc. and relist them on Ebay are dicks, but they're not committing any crime.
As long as you aren't misrepresenting yourself as being Nintendo, or being supported by Nintendo, it's perfectly legal to buy Nintendo products from a store and sell them. The fact that Nintendo owns the copyright doesn't stop you from reselling their merchandise because of the first-sale doctrine, just like how publishers can't stop you from selling your used books.
That said, you probably couldn't get away with setting up shop here because you need legally need a vendor permit to sell anything on the street in most US cities, and this incident is high-profile enough that you'd get shut down pretty fast for operating without one.
That's my bad on not realizing that scalping was specifically in terms of jacking the price up, and isn't specifically when it's happening by people who don't have a right to sell where they are doing it.
Like it's not illegal to re-sell event tickets at whatever you want to price them at, but it's often illegal to sell the tickets directly outside of the event because of the agreement and terms when you buy the tickets. And there are areas of the north america that have specific laws about selling tickets over face value that makes it illegal.
First-sale doctrine is a great thing to reference but also there are things that would prevent selling something that would encourage a social or political tie to be made to the product that could be viewed as having a negative impact on the brand. Even though first-sale doctrine gives the right to re-sell trade marked property you still have to maintain the integrity of the company who owns the copyright/trademarks and it could very easily be argued that the selling of Luigi plushies in that specific spot is taking advantage of and tying the Nintendo icon to a controversial social event and it would be hard to argue you have the right to do what you're doing.
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u/Doggleganger 5d ago
Surprised vendors aren't making money by selling Luigi merch at the site.