Warnings Related to Product Photos on Online Marketplaces: Challenges and Action Options for Businesses
With the growing importance of e-commerce platforms such as eBay and Amazon, the risk of becoming involved in copyright and personality rights disputes is also increasing. A common reason are warnings issued due to the unauthorized use of product photos. Such cases affect not only small retailers but also larger companies that sell their goods through online marketplaces. The following discusses key aspects regarding warnings related to product photos and places the complex legal situation into context.
Legal Basis for the Use of Product Photos
Copyright Protection of Photographs
Product images generally enjoy copyright protection under the Copyright Act (UrhG), provided they reach a certain level of creativity. Besides so-called photographic works (§ 2 UrhG), simpler photographs (§ 72 UrhG) are also protected as long as they represent the result of human effort. Licensed or self-produced photos can usually be used, but distributing third-party product images without appropriate consent is regularly inadmissible.
Protection through Competition Law
In addition to copyright law, competition law (§§ 3, 4 UWG) may be applicable, for example when competitors unlawfully copy product photos and thus create imitated offers. Here as well, claims for injunctive relief and damages can be asserted.
Involvement of Third Parties: Manufacturers, Rights Holders, and Platform Operators
Often, not only individual retailers are involved. Manufacturers who provide product images to contractual partners can, if applicable, restrict or transfer these rights. Platform operators have their own rule sets that impose additional obligations and prohibitions regarding the use of photo and image material.
Typical Case Scenarios and Risks
Use of Manufacturer Photos by Resellers
A significant area of dispute arises when retailers rely on pre-made image material from manufacturers. It is not always clear whether these images may be used unrestrictedly by third parties. In the absence of explicit license agreements, warnings from rights holders threaten.
Use of Third-Party Images by Private Individuals or Commercial Providers
Many warnings are based on the allegation that online offers are equipped with photographs owned by third parties. The mere findability of images via search engines or the internet does not justify an implied permission for commercial use.
Automated Offers on Platforms
Especially when using central product databases (e.g., Amazon catalog system), retailers often assume that the images stored there are usable by all authorized sellers. In fact, the copyright situation regularly remains unchanged: without checking usage rights, providers risk being warned.
Content Requirements and Legal Consequences of a Warning
Typical Content of a Warning
Warnings regularly contain the assertion of a legal infringement as well as the demand to cease the affected conduct in the future. Commonly, there are also claims for payment of damages and reimbursement of attorney fees. The justifications mostly rely on specific image files and proof of authorship.
Consequences for Retailers and Companies
Receiving a warning can have financial consequences (e.g., reimbursement of warning costs, potential damages claims) as well as effects on one’s market presence, such as temporary blocking of individual product offers on the platform. In case of legal disputes, the risk of additional costs and a contentious dispute over the legal situation increases.
Options for Legal Assessment and Defense
Review of Usage Rights
First, the facts regarding the alleged rights infringement must be carefully examined. Essential is whether there was a legitimate use of the photo—such as through license agreements or contractual arrangements. In some cases, the claims may be unfounded or incorrectly formulated—for example, if authorship is not convincingly demonstrated or exaggerated claims are asserted.
Review of the Cease-and-Desist Declaration
Warnings are often accompanied by a pre-formulated cease-and-desist declaration. This is legally binding and should be carefully reviewed before any signature. A blanket acceptance can have far-reaching consequences, also for future business activities.
Economic and Strategic Implications
Defending against a warning notice can involve both economic and strategic considerations. In addition to the immediate financial burden, reputation and business relationships must be taken into account. Repeated violations can also affect ratings or the long-term partnership with online platforms.
Prevention and future developments
Raising employee awareness
Regular training on the use of images and clear approval procedures for product images within the company are suitable to reduce risks. Compliance with standards in handling copyrighted works is a significant aspect of digital business.
Development and adjustment of platform regulations
It can be observed that online marketplaces such as eBay and Amazon are adapting their policies and review procedures to prevent legal violations and minimize platform liability. The development remains dynamic and requires ongoing monitoring of current case law and platform regulations.
Conclusion
Warning notices due to product photos represent a significant challenge for many companies in online commerce. The complex legal questions and the variety of possible claims require a careful and informed response. It is advisable to evaluate cases individually considering the current legal situation and company-specific interests. Sensitive handling can help address financial and business risks appropriately.
For companies, investors, and individuals seeking to clarify legal issues related to the use of product images on online marketplaces, the lawyers at MTR Legal offer extensive expertise in intellectual property law as well as commercial and distribution law matters.
