Proper Use of Photographs on Amazon
Great photographs of your product are essential to a successful Amazon listing. Following certain basic rules is critical to keeping your listing from being shut down. In addition to satisfying the minimum requirements so Amazon permits your listing, there are legal requirements that can sneak up on you if you are not informed.
The technical requirements for photographs are easy to find on Amazon. The format must be TIFF, JPEG, GIF, or PNG and the pixel dimensions should be at least 1000 either height or width. The file names must consist of the product identifier (Amazon ASIN, 13-digit ISBN, EAN, JAN, or UPC) followed by a period and the appropriate file extension (Example: B000123456.jpg or 0237425673485.tif). Amazon does not allow spaces, dashes, or additional characters in the filename. The product should be the only item in the photograph. The entire product should be in the photograph. And the background must be pure white.
But, what is not so obvious are the legal requirements for using photographs. Because of the technical requirements, it may be tempting to use a photograph from someone else’s listing or from somewhere else on the Internet. This may save the cost of purchasing a light box and a professional-grade camera, and the time it takes to set up the proper lighting, angle, focus, and distance, and to properly edit the photos. But that time and money savings will be of little consolation if you end up on the receiving end of a legal demand.
The use, without permission, of a photograph that you did not take is almost always copyright infringement. To understand why, a basic overview of copyright law is in order. Copyrights are a bundle of legal rights belonging to the owner of an original work of authorship. Photographs are one of the many types of creative works protected by copyrights because the photographer makes creative decisions about lighting, angle, distance, and more. Copyrights arise automatically upon creation of the work, regardless of whether the author has taken any steps to protect the work. Although there is a process to register copyrights, which grants the owner additional benefits, copyrights automatically protect photographs, with or without formal registration.
So, when you find a photograph on the Internet, it is safe to assume that the photograph is covered by copyright protection and that using it without permission can subject you to claims of copyright infringement. You might think that because the photograph is on the Internet, or because you found it using Google Images, or because there is no copyright notice, the photograph is in the public domain. That is incorrect. Google Images is merely a search engine that indexes photographs posted online. Posting an image online does not give, or even imply, permission to use it.
Another common misconception is that it is “fair use” to use a photograph of a product to advertise that product. That myth confuses copyright law with trademark law. While it is fair use of a trademark to use it to advertise an authentic product, it is not fair use of the copyright-protected work. The photographer who took the photograph owns the copyrights in the photograph. It is not fair use to use his or her creative work for commercial gain, and an Amazon listing is for commercial gain.
If you grab a photograph of a product from another listing, or from another place on the Internet, you risk more than just having your Amazon listing shut down for infringement. The owner of the copyright can sue you for actual damages, equal to what the photographer usually charges for product photographs, which can be expensive. Also, if the owner of the copyright registered the copyright on the photograph before your infringement, he or she can get statutory damages of up to $150,000 for each work infringed, plus recovery of their attorney fees.
It is vital for a successful Amazon seller to understand what they can and cannot do with respect to using photographs on Amazon. A good rule of thumb is to never use a photograph that you did not personally take without prior written permission. There are a number of ways to obtain product photographs that will not risk an infringement lawsuit or having your listing shut down. You can produce the photographs yourself. You can hire a professional to take the photographs. You can seek permission to use a particular photograph from the copyright holder. Or, you can request stock marketing photos from the manufacturer. Manufacturers/distributors often have stock photographs they will permit their downstream sellers to use when marketing the product. In any event, if you choose to use someone else’s photograph (including a photograph taken by someone you hired for that purpose), it is important that you obtain permission in writing to use the photograph before posting it to your account.
About the Authors: Maria Crimi Speth is a shareholder and intellectual property attorney at Jaburg Wilk. She is the department head of the intellectual property group and has expertise in copyright law, trademark law, and Internet law. She focuses on litigation involving intellectual property rights and First Amendment rights. Ms. Speth is the author of the book, Protect Your Writings: A Legal Guide for Authors.