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Theft of Images and/or Text

Last updated March 16, 2011

We should begin this with a a definition of theft. 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:

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 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, only by eBay. And only by eBay does this crime NOT require any proof.

Under US Copyright Law, for a copyright owner to take action in federal court for damages, the copyright owner must first register the the work before the infringement takes place. A certificate of registration from the US Copyright Office must first be obtained, or a letter of denial, before a court action can be initiated. In the event the copyright is registered afted the alleged infringement takes place, the copyright owner cannot get statutory damages or attorney fees.

Also, product descriptions, technical descriptions and listings of ingredients are not copyrightable. Nor are stock pictures of products.

Copyright Law, Title 17 Chapter 1 §113(c), specifically states:

In the case of a work lawfully reproduced in useful articles that have been offered for sale or other distribution to the public, copyright does not include any right to prevent the making, distribution, or display of pictures or photographs of such articles in connection with advertisements or commentaries related to the distribution or display of such articles, or in connection with news reports. (emphasis added)

This part of copyright law specifically excludes copyright protection of pictures to sell an item.

According to eBay (as of August 2008):

A listing or item may violate intellectual property rights if the seller: - Uses a manufacturer's photo or item description

This is pure, unadulterated, bullshit. eBay has no right to impose this unenforceable restriction upon sellers. A manufacturer's photo is fair use and the description is fair use as well and is not copyrightable.

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 bottle 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 protection for the same reasons.

Information is not protected just because someone claims it is. eBay claims image theft and text 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.

Some sellers use "watermarks" to try and keep others from using the pictures they have taken of a product. The problem with this approach is that while the picture may belong to the person who takes it, the subject matter of the picture, the product, does not belong to the picture taker.

The picture of the product taken by a seller to market the product is allowed under copyright law and is fair use under trademark law. However, when the seller places a company name or seller ID over the product label, the seller is raising the possibility of confusion by a potential purchaser who might think there is an affiliation between the two. That would be legitimate grounds for the manufacturer to have the listings terminated.

In Sony Corp. of America v. Universal City Studios, Inc., 464 US 417, (1984) the Supreme Court emphasised that the singled most important aspect of the four factors to be analized in copyright infringement was the economic impact of the alleged ingringement.

[page 451] in part
But a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author's incentive to create.

Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 US 539 - Supreme Court 1985

[page 566]
Effect on the Market. Finally, the Act focuses on "the effect of the use upon the potential market for or value of the copyrighted work." This last factor is undoubtedly the single most important element of fair use.[9] See 3 Nimmer § 13.05[A], at 13-76, and cases cited therein. "Fair use, when properly applied, is limited to copying by others which [page 567] does not materially impair the marketability of the work which is copied." 1 Nimmer § 1.10[D], at 1-87.

[page 568] More important, to negate fair use one need only show that if the challenged use "should become widespread, it would adversely affect the potential market for the copyrighted work." Sony Corp. of America v. Universal City Studios, Inc., 464 U. S., at 451 (emphasis added); id., at 484, and n. 36 (collecting cases) (dissenting opinion).

In reality, no one but an idiot sues to stop an alleged infringement that has no ecomonic impact. Let us assume that American Widgets tells eBay that WidgetLover is using a stock picture of their AW37 and also using the product description that is on the packing for the AW37. To begin with, the stock picture of the AW37 and the product description cannot be copyrighted under US Copyright Law so the claim by American Widgets to eBay is false and and perjury according to the statement on the form submitted. But eBay knows this and eBay does not care. American Widgets knows this and does not care. WidgetLover has her account damaged and has no recourse because WidgetLover lacks the money to hire a lawyer to sue eBay and/or American Widget. Not fair? eBay does not care.

There is no copyrighted work here where the market is being affected.

American Widgets does not sell pictures of their AW37s. They sell widgets. So using the picture of the widget has no economic effect of their business of selling widgets. American Widgets does not sell product descriptions of their widgets. The use of the product description does not affect their sales of their widgets. They have already been compensated for the widgets being sold. So what is their objection? They do not want the widgets being sold, or resold, by someone else. They want you to buy the widget from them. What WidgetLover is doing is perfectly legal but American Widget does not care. Nor does eBay because eBay because fears the legal ability of American Widget more than the legal inability of WidgetLover.

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