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Mon July 22 2013 15:46:58

On eBay, Who Owns the Photos?

By: Brian Cohen

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By now everyone is aware of eBay's new photo requirements. There is one part of the photo policy that I would like to cover which is photo ownership. eBay clearly states that under the new policy that "Watermarks are the only text that can be on your photo." Moreover it makes clear that watermarks are for the sole purpose of "ownership and attribution." See this eBay help page for the complete Watermarking Guidelines.

eBay should make it clear who owns a photo in a listing that does not have a watermark. To be more specific, it should be understood that this photo, whether or not it has a watermark, belongs to the seller.

However, I believe that once a listing closes with a successful buyer or bidder, that the photo from the auction (if not watermarked) should become fair game for the bidder/buyer to use as they see fit.

Now I suppose some of you might be wondering why doesn't the buyer simply take their own photograph? You might find yourself in a situation (as a buyer) where there is an immediate need to use this photo. A photo of a unique vintage item that could not be found anywhere else. By purchasing this item you are effectively granting yourself "permission" to use the photo immediately without having to wait for physical delivery of the item.

Conversely, once you have purchased this unique item, wouldn't it make you feel a bit uncomfortable if the seller continued to use the photo as they see fit? It also seems bizarre (redundant?) that you would have to ask the seller for permission to use the photo of an item that you just purchased.

To throw a monkeywrench into this discussion: ponder the services such as Worthpoint that include a watermark on eBay listing images that they are "Copyrighted work licensed by Worthpoint" and further states that "Items in the Worthopedia are obtained exclusively from licensors and partners solely for our members' research needs."

Click on this antique blowtorch, for example. So it appears (?) that eBay owns these photos and is licensing them out without our explicit consent.

I personally don't have a problem with this (although I'm sure some of you do) if eBay makes it known in advance that photos may be used in such a manner... Well, in lawyer-speak, they do... According to the eBay User Agreement:  

"When providing us with content or posting content on eBay's sites, services, applications, and tools, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all copyright, trademark, publicity, and database rights you have in the content, in any media known now or in the future."

Perhaps the above can be promoted by eBay as a means to keep all listing insertions free and that listings are in part sponsored by third party data-collection services.

This also begs the question if eBay could monetize seller photos at a granular level. Could eBay act as a platform for sellers to make "royalties" on photos from closed auctions that have been watermarked?  This value added optional  service could compete with the likes of iStockPhoto and Shutterstock.

And in case you missed it, Bloomberg recently reported in "Shutterstock Creates First Silicon Alley Billionaire" that Jonathan Oringer, the founder of Shutterstock became a billionaire and further noted that, "Unlike Getty and Corbis, Shutterstock doesn't own its content. The site's contributors - photographers, illustrators and artists who so far have been paid more than $150 million, according to the company - retain ownership of their copyrights."

As a seller or a buyer on eBay, how do you feel about ownership of images after a listing closes? Would you like eBay to monetize Seller Photos similar to Shutterstock?

Take our poll on SurveyMonkey (we'll share the results with readers). And let us know what you think in the comments below!

About the Author
Brian Cohen has been an active member of the eBay community since May 1998, and he currently trades under the member name Bidofthis.com. His first AuctionBytes article was published in May 2002. Brian's reporting on Bitcoin in 2013 has been referenced in numerous publications including The Register, Tech Week Europe, TechCrunch and PC World. Brian can be contacted through his website at BidofThis.com where he always has a "little Bid of This and little Bid of That." (Note: The above post was submitted on July 21st.)

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Readers Comments

On eBay, Who Owns the Photos?   On eBay, Who Owns the Photos?

This user has validated their user name. by: Philip Cohen
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Wed Jul 24 15:27:16 2013

@frustrated,

“No agreement can be made to counter existing federal law.”

“Companies who try to use a private "agreement" with non-salaried employees that they will take a 1099 instead of overtime.”

What have these two statements got to with copyright on photography?

Regardless, if you are selling on eBay professionally, you have little protection from the law; none, I think from either consumer or employment law. Business to business (B2B) is all about an agreed contract between the parties: you and eBay, created when you agree to their terms and conditions every time you sign on.

Of course, in the normal course of a sale, the buyer of an item does not get “ownership” of the illustrative photos; anyone that thinks that is simply naive. But, good luck reporting any such infringements of copyright to eBay; notwithstanding their “rules”, they could not care less about you or your intellectual property …

But, what you have contractually agreed to in accepting eBay’s terms and conditions is another matter; their conditions may well include a clause that gives them the right to reuse your photographs, as they please. That is simply the way such unscrupulous corporations as eBay do business …

And, “The band continued to play on, even as the bow dipped lower and lower.”—The Titanic/eBay Story ... http://bit.ly/YvxFEg

On eBay, Who Owns the Photos?   On eBay, Who Owns the Photos?

by: mycroft This user has validated their user name.

Thu Jul 25 01:45:39 2013

does ebay have copyright protection for all listings ?

On eBay, Who Owns the Photos?   On eBay, Who Owns the Photos?

by: Noneya This user has validated their user name.

Mon Sep 23 23:45:04 2013

Considering the number of shady sellers who are reselling STOLEN images or are selling items made with stolen images (photo pillows, anyone?) This sets a bad precedent. It takes Image Ownership out of sellers hands and places it into Ebay's. How will this affect the photographers that contact Ebay to let them know that their stolen images are being sold on Ebay? Will Ebay claim ownership by default and ignore DCMA requests? Sounds like a Pinterest clusterfek to me  

On eBay, Who Owns the Photos?   On eBay, Who Owns the Photos?

by: csonnier This user has validated their user name.

Tue Sep 24 00:24:20 2013

My camera encodes each of my photos with my copyright information. I routinely find other sellers using my photos and descriptions word for word, on ebay and other venues and I contact both the seller and ebay vero or the legal department of the venue and so far that has worked to end the listing with my pictures.  Pain in the rear, yes. But I will not tolerate theft of my hard work and property.

On eBay, Who Owns the Photos?   On eBay, Who Owns the Photos?

by: Bloggo This user has validated their user name.

Tue Sep 24 00:27:27 2013

Exclusive Versus Non-Exclusive

Licenses for intellectual property may be exclusive or non-exclusive. Through an exclusive license, you grant the right to use a given piece of intellectual property in a specified manner to one other user; this prohibits other users from using the same property for the duration of the license. A non-exclusive license also grants the right to use a given piece of intellectual property in a specified manner; however, you can grant a non-exclusive license to several users simultaneously.

On eBay, you've given them permission to use your photo(s) in any manner they wish. You have not given up your right to do the same.

On eBay, Who Owns the Photos?   On eBay, Who Owns the Photos?

by: Lithium Louie & Typhoid Mareé This user has validated their user name.

Tue Sep 24 01:06:32 2013

Ebafia routinely grants itself the 'right' to commit crimes such as intellectual property theft through the gross abuse and misuse of UA.

Using a UA to compel sellers to either surrender their property under duress or leave is illegal  but to my knowledge has never been challenged in court.

Their vicious arrogance knows no bounds.

On eBay, Who Owns the Photos?   On eBay, Who Owns the Photos?

by: expertbenefits This user has validated their user name.

Tue Sep 24 01:53:56 2013

It is a lot of work to take photos of jewelry at times it can take a full day. Does ebay use department store photos that list on its site after they sell? I use photos on my website and I also have my own designs that have been copyrighted in  the Eurozone and Australia, US and Canada, eBay is the venue but I don't believe they own the photos. I sell on other venues as well and i relist items that I sell if i get more. I could just use others photos as well. I  could list a lot faster if I did but it is not the same item!  It does not show the condition of that item.  Amazon does this but frankly their strength is not in selling unique items so it is not the same venue. If you are talking new cell phones, computers etc but if you are talking pre-owned or even new jewelry that is often misrepresented on eBay and Amazon since they don't have the same VEro reports going on - you just don't see the same quality at this time there.  They have their niche market - and they make things. = ebay has it's niche too. Stealing pictures is not a good idea for unique items. You will lose sellers. Your sellers have real stores, websites, repeat items and own designs.  Unless you pay for them, I don't see how after ebay sellers either pay for professional photos or painstakingly take them in order to get the pics up and let others piggy back, this will just really really annoy those sellers to no end and drive them away to FB or other venues. Maybe that 's not a bad idea. Some of us have been selling on ebay 16 years and may need a kick in the pants to go to etsy or FB...REally stealing from your sellers wil not win you any points. Now I might give permission to a buyer of an item to use my photos if  I am not selling them because I know it is my item and if they ask but for ebay to let anyone use photos that may not even be the right item and misrepresent what they are selling, then buyers may think my items are suspect as well so all that work to show stamps etc is just a waste of time.  We should just use stock photos then ourselves!  

On eBay, Who Owns the Photos?   On eBay, Who Owns the Photos?

by: CAROLINASGIRL This user has validated their user name.

Tue Sep 24 06:29:01 2013

my photos are watermarked with my trademarked and copyrighted name. I would suggest taking the time to trademark, there is alot more leeway in prosecuting picture stealers.  

On eBay, Who Owns the Photos?   On eBay, Who Owns the Photos?

by: jsgeare This user has validated their user name.
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Tue Sep 24 09:01:22 2013

I think the argument about "ownership" of the photo misses the point; the real question is, who has the copyright? eBay's user agreement doesn't say that the copyright passes to them, but it DOES say that all the benefits of a copyright pass to them. I don't know that such wording is enforceable, it may be against public policy. It certainly is a contract of adhesion. Someone with lots of money and time may challenge the clause, and that ain't me.

On eBay, Who Owns the Photos?   On eBay, Who Owns the Photos?

by: pace306 This user has validated their user name.

Tue Sep 24 10:47:55 2013

eBays views on pics (or data since its all about getting sellers to complete their catalog for free) is the same as it is when you get VERO'd.

What's good for THEM isnt good for you. Ala, their court case in France. They want all kinds of protections THERE, god help you if you get VERO'd here - you get nothing - especially from them.

As for pics .... its a shrink-wrap license trick that they rely on. I'm not an attorney (though I have 2 in the family) so I cant tell you "definitive law" but if you agree upfront to relinquish your rights (giving them a license is basically what it is) then you cant complain.

Of course its eBay trickery, just like everything else on eBay is ...

Yes in a fair world - you own the pics you take PERIOD. But on eBay since everything is shady and crooked its not that way.

I don't think that anyone would mind if eBay used their listing pics to advertise eBay in general - but that's NOT what's going on here.

It goes way beyond simple picture borrowing by other sellers - thats a different issue (important but not what being discussed here). Its   eBay using them for their catalog (why should sellers work for free?) AND eBays usage of them on thier other sites.

Why cant eBay just be fair and credit (money or otherwise) the person whose photos they are? Because that's not eBay's way. eBay's way to take and take and take - as much as possible and do as little or nothing in return.

But eBay has no shame, so nothing will ever change - its like the listing issue(s) ... when you agree to something upfront (possibly not being seen) you cant complain later.

Sneaky, dishonest, scummy - but thats why eBay has the reputation it does!

On eBay, Who Owns the Photos?   On eBay, Who Owns the Photos?

by: miaonorato This user has validated their user name.

Tue Sep 24 17:37:49 2013

I am under the impression that ''uploading'' my photos to SSB, then posting one photo (which is watermarked) on the eBay listing, protects me from anyone, including eBay from ''copying'' my photos. When anyone tries to right click on my photos it is not allowed. Am I wrong? Can eBay still ''use'' my photos?

On eBay, Who Owns the Photos?   On eBay, Who Owns the Photos?

by: elcheapoposters This user has validated their user name.
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Thu Sep 7 17:25:09 2017

Case Closed: When you list on ebay, you allow ebay the rights shown below. You're not giving up YOUR right to do what you want with your images, you're just giving all rights to ebay. If you don't agree with the terms, don't list on ebay.

It's not duress, or misleading, or lying, or violating your copyright, or violating your trust, or killing your babies. It also lets ebay allow 3rd parties ( ie: affiliates ) to use your images. If you find your image on a foreign website, or pinterest, or instagram, or facebook, etc. most likely it's being used by an affiliate to promote a sale on ebay.

The following is taken from the ebay user agreement ( which you really need to read before whining on a public board ).

http://pages.ebay.com/help/policies/user-agreement.html
<
BR>When
providing content using the Services (directly or indirectly), you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all Intellectual Property Rights (as defined above) you have in that content in connection with our provision, expansion, and promotion of the Services, in any media known now or developed in the future. To the fullest extent permitted under applicable law, you waive your right to enforce against eBay, our assignees, our sublicensees, and their assignees your Intellectual Property Rights in that content in connection with our, those assignees', and those sublicensees' use of that content.

On eBay, Who Owns the Photos?   On eBay, Who Owns the Photos?

by: elcheapoposters This user has validated their user name.
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Thu Sep 7 17:31:08 2017

Oh, and for those of you that think watermarking your images is a good idea...

Ebay will advertise your listings via ad networks like Google Adwords. This is a FREE BONUS to you. However, Google will disallow many images with watermarking so you're shooting yourself in the foot and decreasing the visibility of your products when you watermark them, or add distinctive borders, or other non product related aspects. Also, depending on the watermark, you're risking violating ebay's linking policies.

Oh, yeah - they like a white background better than anything else and a non white background may get blocked from ad networks ( not all images, but quite a few ).

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