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Amazon retailers and other online businesses must exercise caution with respect to the text of their product descriptions in sales listings. Obviously, it is necessary to describe what products are being offered for sale (and photographs are essential, too). However, there are important copyright issues when an online business uses product descriptions that are not newly and specifically written by the retailer. If, for example, you are operating as an Amazon Seller, you cannot merely “search the internet” for a description of the product and then use a “cut and paste” of that description in your listing. A product description written by someone else is an “original work of authorship” that is protected by US copyright laws. The same is true for photographs. An online retailer cannot just find a photo of the product and use it. The photograph is protected by copyright law.
In general, US copyright law protects “original works of authorship.” This includes anything like music, books, paintings, designs, photographs and, as noted, product descriptions in an online sales listing. See the Copyright Act. See 17 U.S.C. §101 et seq. The Copyright Act gives broad protection to a copyright owner. Among other rights, a copyright owner has the right to prevent others from using — infringing upon — their “original work” without permission. Copyright infringement can be very expensive. Once the copyright is registered, the owner can bring a copyright infringement lawsuit. The owner can recover actual damages for lost profits, as an example, or for statutory damages that can be as high as $150,000 for each infringement. A copyright owner can also recover attorneys fees and court costs. Prosecuting or defending a copyright infringement lawsuit requires the hiring of experienced copyright lawyers like those at Revision Legal.
That being said, litigation is rare with respect to copyright infringement related to product descriptions. The larger, more practical danger is that infringing copyrights can put an online seller out of business via an excess number of DMCA takedown notices. Takedown notices are a legal tool created by the Digital Millennium Copyright Act (“DMCA”). See information here. Takedown notices are sent by copyright owners to internet service providers (“ISO”) notifying the ISO of a potential copyright infringement and demanding that the infringing content be removed. Takedown notices are dangerous for your business. Most large online sales platforms are serious about DMCA takedown notices, and if an excessive number of takedown notices are filed against your business, online retail platforms will remove your business from the platform. Whatever goodwill and positive ratings you have accumulated will be lost.
What can You do?
Essentially, there are four practical solutions to copyright problems with respect to product descriptions:
Newly written descriptions do not violation any copyright laws. Indeed, newly written descriptions are themselves protected by copyrights. Some descriptions (and photographs) are public domain which means they are freely available for use. Linking is allowed but take some caution to ensure that the website being linked is not infringing. Finally, you can obtain written permission. As a matter of commercial self-interest — since they want to sell their products — any product manufacturers will allow use of their descriptions (and use of their photographs) by resellers. Finally, if you have questions, consult with copyright attorneys with deep and solid experience with these issues.
If you have questions about copyrights and protecting your online business or if you have questions about other intellectual property, contact the copyright lawyers at Revision Legal at 231-714-0100.
The Digital Millennium Copyright Act’s safe harbor provisions, 17 U.S.C. § 512, protect online service providers from liability for copyright infringement committed by their users—but only if the provider complies with specific procedural requirements: registering a designated DMCA agent with the Copyright Office, implementing a repeat-infringer policy, and responding expeditiously to valid takedown notices. Amazon, eBay, Etsy, and similar marketplace platforms qualify for this protection and, to preserve it, they respond to takedown notices quickly and aggressively.
For sellers on these platforms, the practical consequence is that a DMCA notice can remove a listing—and potentially suspend or terminate a seller account—before any court has determined whether infringement actually occurred. A seller who disagrees with a takedown has the right to file a counter-notification under 17 U.S.C. § 512(g), which triggers a 10-to-14-business-day waiting period before the content can be restored. If the copyright owner files suit during that period, the content remains down pending the litigation.
Product photography is one of the most common sources of copyright infringement claims against Amazon sellers. Manufacturers typically hold copyrights in the professional photographs they commission for their own listings. A reseller who copies those photos from the manufacturer’s website or an existing Amazon listing—even if the reseller is an authorized dealer of the product—infringes the copyright in the photograph unless the reseller has obtained a specific license for the image.
The authorization to resell a product under the first sale doctrine, 17 U.S.C. § 109, does not carry with it any authorization to copy or display the manufacturer’s copyrighted product photographs. A reseller must either commission its own photographs of the product or obtain written permission from the copyright owner of the existing photographs. Authorization to sell a product and authorization to copy photographs of that product are two legally distinct permissions.
Copyright protection for product descriptions depends on whether the text is original and creative enough to meet the low threshold of copyrightability established in Feist Publications. A purely functional product specification containing only factual data is likely not copyrightable. However, a narrative product description that uses distinctive language, metaphors, or brand storytelling crosses the threshold of copyrightability quickly.
Even descriptions that seem formulaic can be protected if the specific selection, arrangement, and expression of product features reflects a modicum of creative choice. Courts have found copyright in product catalog entries, advertising copy, and marketing materials. Sellers who rely on obvious or purely factual descriptions to justify copying should understand that this defense has been rejected in cases where the original author made even modest creative choices.
If you are an Amazon seller who has received a DMCA takedown notice, needs to protect your own product content from infringement, or wants to evaluate whether your current listing practices create copyright exposure, contact the copyright lawyers at Revision Legal at 231-714-0100.
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