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Theft of Images and/or Text

We should begin this with a a definition of theft. Answers.com defines THEFT as The act or an instance of stealing; larceny. The Thesaurus says theft is The crime of taking someone else's property without consent: larceny, pilferage, steal, thievery. Britannica gives a more complex definition: theft In law, the crime of taking the property or services of another without consent. Under most statutes, theft encompasses the crimes of larceny, robbery, and burglary. Larceny is the crime of taking and carrying away the goods of another with intent to steal. Grand larceny, or larceny of property of substantial value, is a felony, whereas petty larceny, or larceny of less valuable property, is a misdemeanour. The same principle applies to grand theft and petty theft, which need not necessarily involve the “carrying away” of property and may include the theft of services. Robbery is an aggravated form of larceny involving violence or the threat of violence directed against the victim in his presence. Burglary is defined as the breaking and entering of the premises of another with an intent to commit a felony within. Two offenses usually distinguished from theft are embezzlement and fraud. The Legal Encyclopedia says theft is: A criminal act in which property belonging to another is taken without that person's consent. The term theft is sometimes used synonymously with larceny. Theft, however, is actually a broader term, encompassing many forms of deceitful taking of property, including swindling, embezzlement, and false pretenses. Some states categorize all these offenses under a single statutory crime of theft. What is common to all of these is that theft is a crime. That means the item being stolen must have a value and the act of taking the item deprives the owner of its use and/or value. One can steal someone's car, or their money, or their watch; these things have value and the theft constitutes a a loss of use and value to the owner. The taking of a picture of a product, or descriptive text, does not result in a measurable loss. And, more importantly, these acts are not defined by law as being criminal.

For the taking of an image to be theft, the owner would have to have physically copyrighted it the with the copyright office as a work of art. Professional photographers fall into this category. Even some casual photographers who are lucky enough to to take pictures of an event or something unusual. These people have valid copyrights and use of their pictures is copyright infringement and is covered under federal copyright statutes. Pictures of a product for the purpose of selling that product, such as on eBay, are not copyrightable for two reasons: 1) the pictures lack any artistic merit or imagination, a requirement for a copyright, and 2) the item being photographed most likely is a trademarked product with the trademark, and the image of the trademarked product, belonging to the owner of the trademark, and as such is not copyrightable. Utilitarian objects like a shampoo bottle generally cannot be copyrighted, nor can purely textual material on a label. Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068 (9th Cir. 2000). Owners of trademarks rarely attempt to copyright images of their product. They have more success claiming trade dress and secondary meaning under trademark laws (an example is the Coca-Cola botlle which is distinctive and easily recognizable). A picture of a label, while it may have a trademarked image on it, is not artistic and it lacks imagination. Taking a picture of it for purposes of resale would likely be considered fair use under copyright law. Cf. Ty, Inc. v. Publications Int'l Ltd, 292 F.3d 512 (7th Cir. 2002). The same arguments apply to so-called text theft. The description, or technical specifications, of a product is not copyrightable. The information provided on the container, is technical information and is excluded from copyright protection. Likewise, that same information, posted on the web site of the manufacturer or by the seller of the product, lacks proctection for the same reasons. Information is not protected just because someone claims it is. eBay claims image theft and theft theft are grounds for terminating an auction. However, who determines what was "stolen"? eBay takes the "word" of the complaining party, removes the auction, and then refuses to disclose the identity of the complaining party to the injured seller. Can we say LAWSUIT? eBay firmly declares that it is nothing more than a forum where someone can sell almost anything. Try reading the User Agreement and ALL of the restrictions eBay imposes. When eBay takes unilateral action to terminate auctions on the work of a complaining party they will not identify, they are not just a forum.