Taking Pictures of Our Product Is Copyright Infringement

When Jamie Olsen decided to become an eBay entrepreneur, she decided to start small: selling bottles of Aquage shampoo. And because people can tell a lot about the effectiveness of shampoo by staring at a grainy picture of the bottle, Jamie took a picture of the bottles with a camera phone.

Naturally, Aquage threatened a lawsuit. Doesn’t Jamie know that the light that actually bounces off one of their products is the legal property of Aquage Shampoo? And don’t you know that taking a photograph of an African native actually steals their soul right out of their bodies?

We’re declaring today National “Go Into A Store And Take Pictures Of Stuff” day. Go out and steal a corporation’s soul today! You know… providing they have one.

Company: Taking Pictures of Our Product Is Copyright Infringement [CL&P Blog] (Thanks, Larry & Elva!)


Edit Your Comment

  1. homerjay says:

    Instead of going around acting like children taking pictures of stuff in stores, what if we all write to this company and tell them that because of their rediculous coercive behavior, we will no longer be buying their product. There are plenty of other choices out there for… whatever this product is.

    They certainly don’t have to know that I’ve never heard of their product for me to tell them that, until now, I’ve been a loyal customer for years.

  2. Yeah, and you’re not actually buying the shampoo when you get it at the store, you are buying a “license” to use the shampoo in the bottle…

    I’m with Homerjay, until this company apologizes and sends the lady some free shampoo, put them on the shit-list and we can all boycott them.

    Then again, this sounds like a publicity stunt on the part of Aquage to me…before this “copyright infringement,” I had never heard of them before…

  3. tjrchicago says:

    Unfortunately, the company is just plain wrong. The question is: will Jamie have the guts (and money) to prove it?

  4. kerry says:

    I was at Whole Foods a couple months ago and had my fancy camera with me. I decided that while the boyfriend did the actual shopping I’d take some artsy pictures of veggies. About 6 shots in, though, I was informed by a friendly employee that photography isn’t allowed in their stores and to please knock it off or I’ll get in trouble.
    I could have fought him on it, seeing as how there’s no reason on this planet that I shouldn’t be allowed to take pictures of heirloom tomatoes, but decided to cut my losses and put my camera away.
    If you’re curious about the pictures I was taking, go look at them.

  5. Mary Marsala with Fries says:

    Yesterday I saw a product without paying for it. By next week, I expect the same thing to be illegal!

    Sure, boycott this product, but that’s not enough; I’m down with the suggested Mass Photography. Why? Because this isn’t a scheme by this one company; it’s endemic of a HUGE problem in the way U.S. Copyright Law is being cleverly “re-interpreted” by companies for their benefit, and in violation of citizens’ and consumers’ rights. ALL companies need to see that this isn’t even a little bit cool.

  6. Triteon says:

    Kerry, I can cerainly see the point from Whole Foods’ perspective…these photos are clearly pornographic!

  7. Skeptic says:

    What is interesting about this situation is that the Shampoo company claims that taking a picture of their bottle is illegal copyright infringement. By extension, virtually all photographs of man-made objects are copyright infringement (except of old things in the Public Domain and those made with express permission) and thus just about any photo of any product on EBay would be illegal.

    It will be interesting to see how EBay handles this since it would set a precedent that, if followed literally, would lead to the shutdown of nearly all photos in ads except those place by the manufacturers. This would severely threaten EBay’s business model. Let’s se if they shoot themselves in the foot.

    As for “fair use,” the legal right to fair use is not one that is well defined. Generally, fair use is a legal defense to claims of copyright infringement which has to be proved on a case by case basis rather than an absolute right, so it is possible the shampoo company is in the legal right–however stupid that may be.

  8. Falconfire says:

    “It will be interesting to see how EBay handles this ” not really. Because the company is clearly out of its mind and if this was to ever proceed as far as a trial would be laughed at by every judge in the country before being forced to pay for the defendants court fees.

    Fair use IS a legal right thats well defined for things like this. Its only when it comes to music and video that things get murky, and thats not because it isnt clearly defined (it is) its simply because the suits have such deep pockets that they buy our government to fuck the normal person in the ass. Make lobbying illegal and we wouldnt even have this disscussion as the questionablilty of the law would not even exist.

  9. Triteon says:

    Make lobbying illegal and we wouldnt even have this disscussion as the questionablilty of the law would not even exist.

    Good idea! Let’s set up a PAC to get this done.

  10. Manue says:

    I see it as another example of a big company not “getting” the online world. If they really want to stop Jamie from selling their products, they should BUY them back on ebay… only to leave negative feedbacks :-s

  11. kerry says:

    I don’t really think Aquage is a big company. I’ve only started seeing their products around in the last 2 years or so (they make a pretty great styling creme, by the way), and their stuff is only sold in salons so the distribution is relatively small. I suspect they’re an overzealous small company that’s concerned about losing what little identity they have in a crowded market. They’re complete fools for accusing someone of misusing a trademark by photographing their product, however. Keeping away potential customers (even if through a grey-market such as ebay) means preventing the creation of loyal customers, which is suicide for such a fledgling brand.

  12. CherylTelemachus says:

    Olsen and E-Bay can argue that they didn’t infringe a copyright because the bottles are not copyrightable works of art. The bottles are “useful articles” and per the US Copyright Act they are not copyrightable unless they embody some kind of original artistic work that is separable from the useful article. Olsen can rely on 2d Circuit separability standards (the predominant national standard on useful articles) to argue that these bottles don’t display any originality or any artistic purpose because there is no way that a reasonable person could look at them and see an original artistic work beyond their utilitarian purpose, so they don’t pass separability analysis. Fair use is only a secondary defense in this case; it’s probably moot because the useful article defense is so strong.

  13. CherylTelemachus says:

    Also, you can tell that “aquage” is a small-time company because they either didn’t consult a lawyer in writing their threat letter, or they consulted an incompetent lawyer. Any big company would have better representation. Their copyright argument is absolutely terrible and arguably not even made in good faith.