Online Retailer’s Guide to Photo Copyright
Using product or lifestyle images on an e-commerce site without permission from the photograph’s creator or copyright holder is a crime that — in the United States — carries up to $150,000 penalty. So the next time you’re tempted to copy an image from Google, Bing, or (worse yet) a competitor’s website, don’t. So here comes the grey area, what about images from your suppliers store on Aliexpress?
The aforementioned $150,000 maximum penalty is extreme, perhaps very extreme. A relatively small online business guilty of pilfering photographs is far more likely to simply be asked to take down the image. But copyrights are still very serious. It is important for ecommerce merchants — large and small — to understand which product and lifestyle images may legally used on a commercial website.
Misusing Photography Is Theft
Imagine a small online retail startup. A sole proprietor has invested a few thousand dollars in inventory, taken the time to build a website, and is getting ready to sell online. Unfortunately, some of the product images a manufacturer supplied are low resolution and a little blurry.
Our imagined entrepreneur reads a couple of articles online about how to take good product photos, builds a light box, and buys a reasonably good camera for $300. After several hours of work, this business owner has produced a dozen or so terrific-looking product shots. Finally, this savvy entrepreneur placed a tiny watermark on the images and included a copyright message in the site’s footer.
A few weeks later, while doing some competitive research, this entrepreneur discovers that a competitor has copied the images and is using them, which is likely very damaging to the entrepreneur’s business.
In this hypothetical scenario, the owner of the photographs could sue for damages, and might actually get a few thousand dollars.
So what about photographs from suppliers?
Many product manufacturers and distributors will supply you with product or lifestyle images. Frequently this comes in the form of granting you access to a dealer or merchant portal. You may use these images in accordance with the supplier’s terms.
This issue with Aliexpress, unfortunately not all sellers work directly in accordance with the law. Although you may contact your Aliexpress supplier and get permission, the permission may not be the seller’s to give! Try explaining to a US judge that you thought it was ok to use a photo because a Chinese seller told you it’s ok. You will sound ridiculous.
Case in point:
I have some personal experience in dealing with this. In 2016 I got sued for selling a patented product. I signed an agreement that means I can’t mention that company that sued, unfortunately. The case wasn’t about images, but the fact that I (unknowlingy) used their photos on my website went against my case, further evidencing that I am a dishonest seller. I simply swiped the images straight from the seller’s page, assuming it was the sellers own images. When I told them that I got the images from the supplier, I was asked to supply evidence of this agreement, I had no evidence. We setteled out of court for $40,000 USD + I had my $450 per hour copyright lawer fees on top + I had to close my site down!
The moral of the story, if you are going to use supplier images, get permission in writing! That way, even if you get caught with your pants down, you have something called ‘plausable diniability’.
Copyright Law Is Complex
On the surface, copyright law might seem simple. A copyright essentially gives the creator of a work, like a photograph, exclusive rights to that work. No one else may use that work without permission. But in practice, it can be very complex and nuanced.
The best advice for small and mid-sized business owners may be to avoid any questionable image. If you’re not completely certain that you have a right to use an image, you probably don’t want to use it.
Separately, if you find that someone is using your copyright protected images or if you are informed that you may have infringed on a copyright, you should seek legal advice from an attorney with experience litigating copyrights.