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Seller's Guide to Avoiding Pitfalls - Copyright
Yu Wenzhu, partner of Anjie Shizhe Law Firm, practicing lawyer in China and the US
“I got the goods from the factory, but I didn't expect anyone to complain that the pattern on my product was his copyright. My link was removed, and the 100,000 US dollars in my account were frozen. What should I do?Abbottt, Premiere Creative’s creative director.
This is a hole that many cross-border sellers have stepped into. What is unfortunate is that these sellers did not knowingly commit crimes; instead, they took the goods from the factory and sold them when they thought the design looked good. They didn't expect to suddenly receive copyright infringement complaints.
“I got the goods from the factory, but I didn't expect anyone to complain that the pattern on my product was his copyright. My link was removed, and the 100,000 US dollars in my account were frozen. What should I do?Abbottt, Premiere Creative’s creative director.
This is a hole that many cross-border sellers have stepped into. What is unfortunate is that these sellers did not knowingly commit crimes; instead, they took the goods from the factory and sold them when they thought the design looked good. They didn't expect to suddenly receive copyright infringement complaints.
What is copyright?
Copyright is also called “copyright.” Text, images, drawings, photography, video, music, and software code may all be copyrighted. For example, for sellers who sell scarves, original pattern designs, packaging patterns, main images, model images, scene maps, brand stories, five-point descriptions, product manuals, short promotional videos, posters, etc. on scarves may all enjoy copyright.
To enjoy copyright, these conditions must be met:
1. Originality: In other words, the work must be completed independently by the author and has minimal creativity.
2. Fixability: In other words, the work must be fixed to a medium so that it can be seen, copied, transmitted, or recorded.
Also, the author of the work must be a human, not an animal or AI. Therefore, if the seller simply uses AI to generate a product image through reminders, this seller does not enjoy the copyright of this image, nor can it prevent other sellers from using this image by claiming copyright infringement. However, if the seller adds enough of their own contributions to the AI-generated images (such as editing the images with Photoshop), then the seller can claim copyright protection for the part they have contributed.
The following elements common in cross-border e-commerce are not protected by copyright:
• Ideas. (For example, copyright can protect the red and green apple pattern printed on a scarf, but not the abstract idea of a “red and green apple pattern scarf”)
• System and operation method
• Designed to serve pure functionality
• Materials in the public domain
• Phrases
• Works that have passed the copyright protection period (copyright protection period may vary under national laws)
To enjoy copyright, these conditions must be met:
1. Originality: In other words, the work must be completed independently by the author and has minimal creativity.
2. Fixability: In other words, the work must be fixed to a medium so that it can be seen, copied, transmitted, or recorded.
Also, the author of the work must be a human, not an animal or AI. Therefore, if the seller simply uses AI to generate a product image through reminders, this seller does not enjoy the copyright of this image, nor can it prevent other sellers from using this image by claiming copyright infringement. However, if the seller adds enough of their own contributions to the AI-generated images (such as editing the images with Photoshop), then the seller can claim copyright protection for the part they have contributed.
The following elements common in cross-border e-commerce are not protected by copyright:
• Ideas. (For example, copyright can protect the red and green apple pattern printed on a scarf, but not the abstract idea of a “red and green apple pattern scarf”)
• System and operation method
• Designed to serve pure functionality
• Materials in the public domain
• Phrases
• Works that have passed the copyright protection period (copyright protection period may vary under national laws)
Do I have to register before I can enjoy copyright?
Many sellers feel that if there is no copyright registration, it is tantamount to no copyright. Actually, that's not the case. In some countries, such as the United Kingdom and the European Union, copyright registration is not possible. There are also countries where copyright registration is possible, but it is of little significance.
If it can meet the requirements of originality, copyright usually already exists when the work is completed and fixed. Furthermore, according to international treaties (Berne Convention), works created by sellers in China can automatically be copyrighted in the US even if they have not registered copyright in the US. Currently, Amazon's sites are all member countries of the Berne Convention, which means that works created by sellers in China can be automatically protected by copyright in all Amazon site countries, even without any copyright registration.
Despite this, for sellers who use the US as their main market, it is still meaningful to register their own original and easily copied elements in the US copyright in a timely manner. U.S. copyright registration has the following benefits:
1. If you want to claim legal damages and attorney's fees in a US copyright infringement lawsuit, you usually need to register before the infringement begins, or within three months of initial publication.
2. If the work is registered within five years of initial publication, a copyright registration certificate can usually be used as preliminary evidence in court to prove copyright ownership.
3. American works usually need to complete the “registration approved or denied” step in the registration process before they can sue others for infringement in federal court.
Some sellers have gone to great lengths to create a hit. As a result, it was only when they were copied and wanted to defend their rights that they discovered that they had neither registered the copyright in time at the time, nor kept any evidence proving the creative process, nor was it possible to find links that were previously published. This posed a great challenge for sellers to defend their rights.
Therefore, in order to protect their copyright, sellers must do the following:
1. Keep documents of the creative process, publish evidence first, or time stamp evidence. This could be due to:
• Design source files
• PSD, AI, sketch, first draft
• Capture original images and RAW files
• Draft copy and revision history
• Video engineering files
2. US sellers promptly register copyright for important original content
3. Review and manage supporting documents relating to copyright. For example, pay attention to reviewing whether the employment contracts or outsourcing contracts of designers, photographers, models, etc. include copyright ownership agreements, and keep relevant contracts or communication records. For content authorized to be used by others, it is necessary to keep the copyright authorization file and pay attention to the scope of review and authorization. If you go through multiple levels of authorization, you need to ensure that the authorization chain is clear and complete.
If it can meet the requirements of originality, copyright usually already exists when the work is completed and fixed. Furthermore, according to international treaties (Berne Convention), works created by sellers in China can automatically be copyrighted in the US even if they have not registered copyright in the US. Currently, Amazon's sites are all member countries of the Berne Convention, which means that works created by sellers in China can be automatically protected by copyright in all Amazon site countries, even without any copyright registration.
Despite this, for sellers who use the US as their main market, it is still meaningful to register their own original and easily copied elements in the US copyright in a timely manner. U.S. copyright registration has the following benefits:
1. If you want to claim legal damages and attorney's fees in a US copyright infringement lawsuit, you usually need to register before the infringement begins, or within three months of initial publication.
2. If the work is registered within five years of initial publication, a copyright registration certificate can usually be used as preliminary evidence in court to prove copyright ownership.
3. American works usually need to complete the “registration approved or denied” step in the registration process before they can sue others for infringement in federal court.
Some sellers have gone to great lengths to create a hit. As a result, it was only when they were copied and wanted to defend their rights that they discovered that they had neither registered the copyright in time at the time, nor kept any evidence proving the creative process, nor was it possible to find links that were previously published. This posed a great challenge for sellers to defend their rights.
Therefore, in order to protect their copyright, sellers must do the following:
1. Keep documents of the creative process, publish evidence first, or time stamp evidence. This could be due to:
• Design source files
• PSD, AI, sketch, first draft
• Capture original images and RAW files
• Draft copy and revision history
• Video engineering files
2. US sellers promptly register copyright for important original content
3. Review and manage supporting documents relating to copyright. For example, pay attention to reviewing whether the employment contracts or outsourcing contracts of designers, photographers, models, etc. include copyright ownership agreements, and keep relevant contracts or communication records. For content authorized to be used by others, it is necessary to keep the copyright authorization file and pay attention to the scope of review and authorization. If you go through multiple levels of authorization, you need to ensure that the authorization chain is clear and complete.
What should I do if the listing is removed because a third party complains about copyright infringement on the platform?
The first step is not to ask the other person to apologize right away, but to figure out the facts first. You need to make a judgment first. What material did the other party accuse you of infringing?For example, is it the design of the product itself, the main image of the product, the packaging design, the five-point description, or the promotional video?
Next, verify whether the complainant is actually the copyright holder or has been authorized by the copyright party to file a complaint or lawsuit, and determine whether the complainant's work is copyrighted and whether you have any arguments (such as fair use). These questions are highly specialized, and consideration may be given to entrusting a lawyer to judge.
Then, trace the source of the alleged infringing material. If it is true that it is a copy of another person's work or the source of the material is unknown, if it is infringing, you can consider voluntarily removing the product to avoid expanding the consequences of the infringement, reaching a settlement with the copyright party, or obtaining authorization. If you are using independently created content or have been authorized, you can submit complaints and evidence to the platform, such as copyright registration certificates, evidence proving the creative process, agreements and communication records with creators, and licensing contracts with copyright parties.
Next, verify whether the complainant is actually the copyright holder or has been authorized by the copyright party to file a complaint or lawsuit, and determine whether the complainant's work is copyrighted and whether you have any arguments (such as fair use). These questions are highly specialized, and consideration may be given to entrusting a lawyer to judge.
Then, trace the source of the alleged infringing material. If it is true that it is a copy of another person's work or the source of the material is unknown, if it is infringing, you can consider voluntarily removing the product to avoid expanding the consequences of the infringement, reaching a settlement with the copyright party, or obtaining authorization. If you are using independently created content or have been authorized, you can submit complaints and evidence to the platform, such as copyright registration certificates, evidence proving the creative process, agreements and communication records with creators, and licensing contracts with copyright parties.
What should I do if I am TRO due to copyright infringement?
TRO means temporary restraining order. In the cross-border e-commerce scene, it is common to see “Schedule A” cases initiated by individual courts such as the U.S. Northern District Court of Illinois. It is not an ordinary platform complaint, but an emergency measure at the court level. Once TRO is involved, the processing method is completely different from platform complaints. Sellers are not advised to respond on their own, or hastily admit infringement without professional judgment, resulting in missed opportunities to obtain exemption on procedural or entity grounds, or to pay a settlement far higher than the other party's actual legal liability (such as 50% or more of the account freeze amount) in exchange for resuming listing and unfreezing account funds. After receiving the platform's freeze notice, it is recommended to seek an American practicing lawyer who is familiar with US copyright law and Schedule A lawsuits as soon as possible to evaluate whether the infringement is infringement and formulate a targeted response strategy.
How to avoid infringing on someone else's copyright?
Many copyright infringement cases do not involve deliberate plagiarism by sellers, but have stepped into minefields in supply chain and material management, such as:
• The factory finds images online as the pattern on the product, and the seller sells them directly
• When I see a picture of “everyone is using it online”, I mistakenly think I can use it however I want
• Take real pictures of other stores and use them directly
• Seek experts, designers, and photographers to create content, but the contract says that the copyright does not belong to the seller
• A copyright license has been obtained from a third party, but that third party is not the copyright holder and is not authorized to license the copyright.
• Copyright authorization has been obtained from the copyright party, but the use exceeds the scope of authorization, such as the copyright license agreement stipulates that the work cannot be commercialized or modified, the use scenario of the material does not comply with the contract agreement, and product sales exceed the authorized quantity.
To avoid trampling on lightning, sellers should establish a material compliance system and not use images, videos, or copy whose copyright status is unknown. “I don't know if it's someone else's copyright” is not an exemption from copyright infringement. At the same time, the original evidence and authorized evidence of all materials must be archived so that original evidence or documents proving the complete licensing chain can be issued in the event of alleged infringement.
In short, for cross-border sellers, copyright is not a legal term far from you, but rather a bottom line of risk affecting your operations and your weapon to protect your originals.
• The factory finds images online as the pattern on the product, and the seller sells them directly
• When I see a picture of “everyone is using it online”, I mistakenly think I can use it however I want
• Take real pictures of other stores and use them directly
• Seek experts, designers, and photographers to create content, but the contract says that the copyright does not belong to the seller
• A copyright license has been obtained from a third party, but that third party is not the copyright holder and is not authorized to license the copyright.
• Copyright authorization has been obtained from the copyright party, but the use exceeds the scope of authorization, such as the copyright license agreement stipulates that the work cannot be commercialized or modified, the use scenario of the material does not comply with the contract agreement, and product sales exceed the authorized quantity.
To avoid trampling on lightning, sellers should establish a material compliance system and not use images, videos, or copy whose copyright status is unknown. “I don't know if it's someone else's copyright” is not an exemption from copyright infringement. At the same time, the original evidence and authorized evidence of all materials must be archived so that original evidence or documents proving the complete licensing chain can be issued in the event of alleged infringement.
In short, for cross-border sellers, copyright is not a legal term far from you, but rather a bottom line of risk affecting your operations and your weapon to protect your originals.
The above content only represents the creators' personal opinions. The data is for reference only, and does not represent the official views of Amazon Global Store.
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