Is Reselling Your Shampoo Bottle Online Illegal?

from the so-says-one-company dept

Greg Beck writes in to let us know about the latest ridiculous legal situation. A woman who bought a bottle of shampoo at a store then attempted to resell it on eBay. She took a photo of the bottle she bought and used that in her eBay listing. The company proceeded to demand that she take down the listing completely. They appear to have two separate (but equally questionable) reasons for this. First, they claim that the photo is copyright infringement. That's a tough one to support since the woman took the photograph herself of the bottle that she bought and which she owns (yes, owns). The company suggests that it owns the copyright on the actual bottle with their label, which would mean any photograph of their shampoo bottle would represent infringement. As Beck shows in his blog post, this is an odd interpretation of copyright law. The bottle, by itself, is not copyrightable and even if it were, the photograph would clearly fall under fair use protections. The second complaint from the company is that they have distributor agreements that say only certified resellers can sell their product. However, that's a contractual agreement between the company and its distributors. This woman has no contractual relationship with the shampoo company and thus cannot be violating any contract. On top of that, there is the right of first sale. As the legal owner of the shampoo bottle, the woman has absolutely every right to then go and resell it however she wants at whatever price she wants. The company has sold it, and no longer has any control over it. The woman has apparently decided to ignore the multiple threats from the company, so it's not clear how they're going to respond next. However, this is yet another example of a company focusing so much on control that they forget that once they've sold something, it's no longer theirs.


Reader Comments (rss)

(Flattened / Threaded)

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    Mark "Rizzn" Hopkins, Oct 6th, 2006 @ 6:15pm

    Truly Bizarre

    There's really nothing to add here. Just another bizarre move from a legal team with nothing better to do.

     

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    Craig, Oct 6th, 2006 @ 6:20pm

    eBay has been pulling this crap for a long time. They created sortof a hotline for manufacturers to be able to get auctions pulled swifty. These partners get faster and more responsive "customer support" from ebay than ebay's actual customers do.

    Partly this was an attempt to stop knock-offs of designer items from being sold, but mostly this was initiated back when eBay decided to move more towards corporate sales than sales from individuals.

    Just one of the moves that made me stop selling on eBay years ago, even though I didn't personally sell any of the items they prohibited.

     

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    Tin Ear, Oct 6th, 2006 @ 6:20pm

    I have...

    I have a half used bottle of Head and Shoulders brand shampoo... Maybe I should post it for sale as well. Hell, lets EVERYBODY put some 'copyrighted' product that we have purchased on eBay and see what we can get for them!

     

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      Joe, Aug 25th, 2009 @ 3:09pm

      Re: I have...

      I have a Chevy car for sale... I wonder how the hell eBay let's this crap go on w/it's auto sales division?

      I don't see eBay pulling all the cars off from its auto listings... ebay is getting dummer all the time. I guess once you're a young punk and you make you 20 mill personal yearly income you can then squish those that got you there...

       

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    Anonymous Coward, Oct 6th, 2006 @ 6:27pm

    Smells like microsoft

    Microsoft does the same thing.

    It sells software, then tries to C&D resellers into oblivion for daring to resell it.

     

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      Frank, Oct 6th, 2006 @ 7:44pm

      Microsoft doesn't sell software

      Microsoft does the same thing. It sells software

      Technically? No. Microsoft sells a license. If you read it, you will understand that they explicitly did not sell you the software. They sold you a license to use the software -- which doesn't even come with media holding the software you have the license for (unless of course you pay extra for it).

      Is that a good thing? That's a different subject.

       

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        Arden Payne, Oct 7th, 2006 @ 12:52am

        Re: Microsoft doesn't sell software

        So if what you're saying is true then they should give away the software and sell the license right? Just try and get a free copy of XP from them if you have a valid license key. Good luck

         

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          Anonymous Coward, Oct 9th, 2006 @ 8:37am

          Re: Re: Microsoft doesn't sell software

          So if what you're saying is true...

          Umm.. yes. It's true. Go read the license. And how does the fact that this being true have anything to do with what M$ "should" be doing with their software sales? Pretty pointless point there Arden.

           

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        ubigcow, Oct 7th, 2006 @ 1:45pm

        Re: Microsoft doesn't sell software

        So the isle in Wal-mart shouldn't say "Software" it should say "License to Use Softwere."

         

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      Ant Onaf, Oct 8th, 2006 @ 7:19am

      Re: Smells like microsoft

      Microsoft and software companies can use this logic because they have a licensed agreement in place when purchasing their product. I am certain the shampoo company doesn't have an EULA or written policy of their resell rights for consumers. When was the last time you picked up a bottle of shampoo from the grocery store and attached was a license agreement??

       

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    Meee, Oct 6th, 2006 @ 6:35pm

    Which one

    So, i was interested in seeing the actual product that this woman is seeling on ebay...so i typed in AQUAGE in eBay search and guess what i found, 27 results, is the company going to send a cease and desist to all 27 sellers and one each time someone else does it? why is she being singled out? is she an example?

     

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    Anon, Oct 6th, 2006 @ 6:50pm

    One Use, not tell?

    Misc questions:
    Did she use the Shampoo first, if so did she say?
    is it still sealed, if it was bought that way?
    What is the Net Weight/ Gross Weight?
    Could this be an issue for the FDA?
    What if the bottle were to leak?

    to solve the problem:
    have manufacturer put contracts on every item you buy.
    Buy purchasing this product you agree to...
    Everything will be like buying software.
    Lots of contracts that nobody reads.
    She could become a shampoo pirate.

    Why not! lets put contracts on everything.
    Contract for reading this posting:
    You agree not to spam me.
    You will not claim this posting as your own.
    You agree to give full credit for this posting to me.
    ...

     

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    Anon, Oct 6th, 2006 @ 6:50pm

    One Use, not tell?

    Misc questions:
    Did she use the Shampoo first, if so did she say?
    is it still sealed, if it was bought that way?
    What is the Net Weight/ Gross Weight?
    Could this be an issue for the FDA?
    What if the bottle were to leak?

    to solve the problem:
    have manufacturer put contracts on every item you buy.
    Buy purchasing this product you agree to...
    Everything will be like buying software.
    Lots of contracts that nobody reads.
    She could become a shampoo pirate.

    Why not! lets put contracts on everything.
    Contract for reading this posting:
    You agree not to spam me.
    You will not claim this posting as your own.
    You agree to give full credit for this posting to me.
    ...

     

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    Anonymous Coward, Oct 6th, 2006 @ 6:52pm

    The second point is most interesting. We would be arresting everyone selling anything o line, having a garage sale, and outlawing pawn shops. What tools.

     

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    newmanae, Oct 6th, 2006 @ 6:54pm

    Saving the auto industry

    Try this again, this could be a boon for the auto industry, you don't actually buy "the car" it's actually the intellectual propety of the manufacturer. You have no right to profit from the resale of a used car, that's pirating!

     

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    Anonymous Coward, Oct 6th, 2006 @ 7:21pm

    This is insain and to think what the music industry hs bean doing for years with the hole "ileagel" music downloads. Big deal I think that this is just cazy and thoes "people" have nothing better to do.

     

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      Anonymous Coward, Oct 7th, 2006 @ 6:58am

      Re:

      Learn how to spell properly and maybe someone would actually listen to what you have to say.

       

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        Anonymous Coward, Oct 7th, 2006 @ 1:53pm

        Spelling

        English is stupid. I would no. America stool everything it owns. The language, the land, its citizens, its money, its mesuring sistem, and its ideas. And they didn't steel the best. They stole the worst.

        Stupid people.

         

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          Mark (profile), Oct 7th, 2006 @ 3:06pm

          Re: Spelling

          The language wasn't "stolen" at all. In fact, because "America' was originally 13 colonies of England. As for the measuring system.. england (and most of europe) uses the metric system, America uses imperial. We have our own money, and after 200+ years, how could we -steal- anything. This article isnt about theft, its about copyright infringment (false claim imho, due to the "fair use" doctrine)

           

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            John Duncan Yoyo, Oct 8th, 2006 @ 1:47am

            Re: Re: Spelling

            Oh much of the english language was stolen from other languages. There is a wonderful quote from James D. Nicoll that sums it up. "The problem with defending the purity of the English language is that English is about as pure as a cribhouse whore. We don't just borrow words; on occasion, English has pursued other languages down alleyways to beat them unconscious and rifle their pockets for new vocabulary."

             

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          Mavyak, Oct 8th, 2006 @ 7:35am

          Re: Spelling

          We certainly didn't steal our grammar or spelling from you. Maybe we should assimilate your country for its own betterfication.




          author's note: Betterfication is my best Bushism to date. rofl!

           

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      citygirl, Oct 8th, 2006 @ 11:39am

      Re: use of the English language

      I wish Americans would learn to spell and communicate in their own language.

       

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    Grandfather Time, Oct 6th, 2006 @ 7:37pm

    Utterly

    Stupid..... but amusing, none the less.....

     

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    John Bailey, Oct 6th, 2006 @ 9:33pm

    Help them to help themselves.

    You could always post your empty shampoo bottles back to them. After all, you wouldn't want to risk some unsavory person photographing the bottle on a land fill or somehow trespassing on their intellectual property. So let them dispose of it in the way they see fit. The image of thousands of empty shampoo bottles mounting up in their post room strikes me as quite funny.

     

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    Louis Barnett, Oct 6th, 2006 @ 9:54pm

    Beck Shampoo

    Those people at Beck must be Idiots If what they claim is true 3/4 of the the Items sold on E-bay are illegal because they show brand name and picture of item if you bought the item it belongs to you if they don't like it Beck why don't you buy it back from this poor woman who might make $ 1.00 .Your picking on this poor woman because you can't sell your junk Shampoo why don't you go find the guy in your office who just stole a company pen and fire him that would be better use of your time.__ck YOU

     

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    Anonymous Coward, Oct 6th, 2006 @ 10:09pm

    camera phones in the shampoo isle

    just imagine all the guys going to the grocery store and picking up a bottle of shampoo for their girlfriend/wife, and send a camera-phone pic to their wife to ask wich she wants...

    heads must explode at shampoo companies everywhere at that thought...

     

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    satan, Oct 7th, 2006 @ 1:04am

    Don't buy

    Don't buy this shampoo, let them know you will never buy their shit again.

     

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    Saf1, Oct 7th, 2006 @ 2:13am

    wtf

    guys, people sell "copyrighted" stuff on ebay all the time. y r they complaining now?

     

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    John, Oct 7th, 2006 @ 2:41am

    shampoo

    I am going to buy a few bottles of this stuff and sel it cheaper then i bought it and see what the company says to me. no law says you cant buy something and take a loss. Now, lets see what they say.

     

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    foofdawg, Oct 7th, 2006 @ 5:53am

    Used cars?

    So does this mean that auto-trader can't post pictures of used cars any more? The manufacturers have agreements with the dealerships, and only let them sell their cars.....

     

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    hoeppner, Oct 7th, 2006 @ 7:21am

    software is differnt as when you instal it you "I Agree" to their contract.

     

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    firemeg, Oct 7th, 2006 @ 7:35am

    eBay Sucks for Allowing This

    This has been going on for some time now all across eBay. Since eBay introduced the VERO program, it has gotten worse. Now these companies have eBay on THEIR side of this issue. The list of items outlawed, banned, etc. on eBay grows on almost a daily basis, and for a multitude of reasons.

    Recent litigation from companies such as Tiffany, Vuitton etc. have only increased the problems. Many eBay customers (eBay Sellers) are reporting that eBay has started pulling high end items from auction, items like Rolex watches and Tiffany jewelry. Many times the sellers actually bought the merchandise themselves and have the Tiffany store receipts to prove it.

    The funny thing is that eBay is cracking down on copyright law and intellectual property rights offenders, yet eBay Inc. may be one of the biggest offenders in the world. eBay is still in the middle of a full blown supreme court hosted trial over technology that eBay more-or-less admits that it stole from MercExchange and have implied that MercExchange doesn't deserve to have the patents, simply because they weren't using the technology and eBay was (after stealing it). They are also involved with a couple of other copyright lawsuits dealing with technology that eBay and/or Skype stole.

     

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    Amos, Oct 7th, 2006 @ 7:48am

    Vague

    Techdirt LOVES oversimplifying issues as if everything is clear-cut and obvious. The article doesn't really specify that she bought the item at a retail store. One of my clients is a professional hair stylist and is able to buy products like this at special stores at special prices, with the caveat that the product is ONLY for professional use (ie, using on customer's heads). I imagine it would be a lot easier to make a profit reselling products that you buy for sub-retail prices in the first place. It would basically BE retail (buying at dealer wholesale, selling with markup).

    I'd bet there's a 50/50 chance that this is happening...and when their "private investigator" discovers her source it might be the end of the story.

     

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      Lathered, rinsed, forgot to repeat, Oct 7th, 2006 @ 3:00pm

      Re: Vague

      "One of my clients is a professional hair stylist and is able to buy products like this at special stores at special prices, with the caveat that the product is ONLY for professional use (ie, using on customer's heads)."

      "Professional use" my eye! It's all marketing hype and snazzy packaging to justify higher prices. Retailers are in on the scam.

      The manufacturer doesn't give a rip about this gal, and they know they can't win in a courtroom on this one. They just want the word out that they will take action so they can add that to their schitck.

       

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      Anonymous Coward, Oct 7th, 2006 @ 8:40pm

      Re: Vague

      I'd bet there's a 50/50 chance that this is happening...and when their "private investigator" discovers her source it might be the end of the story.
      Have got something to back your accusations up, or are you just casting aspersions?

       

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      Cleverboy, Oct 9th, 2006 @ 9:14am

      Re: Vague

      Techdirt LOVES oversimplifying issues as if everything is clear-cut and obvious.
      Huh. I haven't noticed. Anyway... I agree that this is over-simplified.

      As someone who has worked with companies like SmartBargains.com, who has had to be very CAREFUL about what brands they use to advertise a sale with, I know its something that matters. A lot of times you see commercials where they'll advertise "brand name" *somethings* at wholesale prices. They'll say "we can't show you the name, but this is a great X product. The initials are H.S. *wink*."

      Companies are concerned, and rightly so, about brand dilution. Powersellers on eBay are recognizing huge profits on brand-name merchandise with level-competition being a keyword away, and this woman is just another person caught in the frenzy of brands not wanting their retail customers (shop owners) to lose sales to organized power-resellers on Internet auction sites.

      I AIN'T saying its right... but that's where its coming from. It's not crazy new fangled weirdness, its age old, just seeing the light of day weirdness.

      Hey... for something else amusing... you know how Disney throws its flicks into "the vault" to control price surges on their old movies (like "the Lil Mermaid")? If you go searching for a new copy of Snow White online, you're unlikely to find one from an authorised reseller... but if you search on Amazon.com, Amazon immediately and automatically hooks you up with third-party resellers... completely getting around Disney's "vault" system. I was laughing about that the other day. Must keep Disney execs awake all night thinking about it.

      Disney: We're sticking this in the vault if you don't buy now!
      Customer: So what?
      Disney: SHIT...taki mushrooms!

      And the war rolls on... manufacture controls on selling is a genie out of its bottle. Not really going back in, but the fight isn't going away. The whole "educational software" and "OEM" struggle in the software market is painful to watch though.

       

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    teknosapien, Oct 7th, 2006 @ 8:07am

    umm ok

    I really don't seen how this company would have a claim. If I buy a car drive it then sell it in a publication with a picture is this also considered a copyright infringement. I would hope that the only copyright infringement would come from say using their commercial in your selling of this product. Clearly from the definition of a copyright this was not an infringement from http://www.copyright.gov/circs/circ1.html#wci
    What Is Copyright

    Copyright is a form of protection provided by the laws of the United States (title 17, U. S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

    *

    To reproduce the work in copies or phonorecords;
    *

    To prepare derivative works based upon the work;
    *

    To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
    *

    To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
    *

    To display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and
    *

    In the case of sound recordings*, to perform the work publicly by means of a digital audio transmission.

    In addition, certain authors of works of visual art have the rights of attribution and integrity as described in section 106A of the 1976 Copyright Act. For further information, request Circular 40, Copyright Registration for Works of the Visual Arts.

    It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright. These rights, however, are not unlimited in scope. Sections 107 through 121 of the 1976 Copyright Act establish limitations on these rights. In some cases, these limitations are specified exemptions from copyright liability. One major limitation is the doctrine of “fair use,” which is given a statutory basis in section 107 of the 1976 Copyright Act. In other instances, the limitation takes the form of a “compulsory license” under which certain limited uses of copyrighted works are permitted upon payment of specified royalties and compliance with statutory conditions. For further information about the limitations of any of these rights, consult the copyright law or write to the Copyright Office.

    *Note: Sound recordings are defined in the law as “works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work.” Common examples include recordings of music, drama, or lectures. A sound recording is not the same as a phonorecord. A phonorecord is the physical object in which works of authorship are embodied. The word “phonorecord” includes cassette tapes, CDs, LPs, 45 r.p.m. disks, as well as other formats.

     

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    Brian, Oct 7th, 2006 @ 8:33am

    Bzzzt! Incorrect

    "software is differnt as when you instal it you "I Agree" to their contract."

    Hoeppner, clicking a button called "I agree" is NOT agreeing to a contract. Furthermore, maybe I didn't even install the software? Do I still agree with this "contract" if the item is still in the box, sealed and never opened?

    Of course not. But explain that to ebay after Microsoft pulled a few of my auctions....

     

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    Michael Haney, Oct 7th, 2006 @ 8:57am

    Abolish the DMCA

    All the more reason why the DMCA needs to be abolished. It was originally intended to be used as a way to protect the rights of intellectual property owners but its become a tool for greedy corporations to curcumvent and even eliminate competitiors. All the reports I've seen about the DMCA so far have shown that the law is being severely exploited for underhanded purposes. This weapon neeeds to be taken out of their hands.

    When the Democrats take over Congress this November write your Democratic Congressan or Congresswoman and let them know you want the DMCA Abolished.

     

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    anonymous, Oct 7th, 2006 @ 11:23am

    copyright claims...

    I agree with the conclusion about the first sale doctrine. Even if she is reselling on a large scale, as long as the shampoo company got their money, they really can't argue. However, about the photograph part, I'm not certain that I agree. First, she may not own the shampoo. It really depends on the terms of the sale. Think of computer programs. You get a license to use it when you buy it. That license allows you to do certain things. You don't have complete ownership rights so there are certain things you can't do. Second, the photograph itself doesn't seem to be the problem, but the fact that she is using it to advertise and sell the company's product. This is a terribly small scale, but imagine of you could create advertisements for products that were not authorized by the owner. It could hinder their success in business. They have the right to control the display of their product. While this certainly is a small case and probably not worth the company's time, the overall notion of controling how your product is percieved by the public is important and should be protected.

     

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      Who me?, Oct 7th, 2006 @ 11:34am

      Re: copyright claims...

      I was always taught that unilateral contracts, that is a contract in which only one party dictates the terms, were not enforceable. I never have understood how so many unilateral contracts exist in todays market. Insurance, software, and music industries are just the most talked about. I have no idea what to do about it but I think we are a long way down a slope leading to a type of forced consumerism where the buyer must participate but has no say in the terms of use and never owns anything.

       

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        anonymous, Oct 7th, 2006 @ 2:39pm

        Re: Re: copyright claims...

        It's not a unilateral contract. They offer terms and you accept on those terms. It's not a negotiated contract, but that doesn't mean it's not bilateral. What you can do about it is to not buy a certain product...or try to negotiate your own license with Microsoft. I agree it kind of sucks, but you have the choice not to buy it. Price of convenience.

         

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        Anonymous Coward, Oct 7th, 2006 @ 8:45pm

        Re: Re: copyright claims...

        I was always taught that unilateral contracts, that is a contract in which only one party dictates the terms, were not enforceable.
        That used to be, but things change. Most judges these days are corporate lap dogs.

         

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      John, Oct 7th, 2006 @ 1:13pm

      Re: copyright claims...

      You have no right over how others display your product. I can sell a certain product and someone else can buy that from me and resell it with their own advertisement. As long as they don't use the ad that I made, they are not doing anything illegal. They could make a picture of someone taking a crap on my product and post it all over the internet and there is nothing I could do about it.

       

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        anonymous, Oct 7th, 2006 @ 2:49pm

        Re: Re: copyright claims...

        "You have no right over how others display your product. I can sell a certain product and someone else can buy that from me and resell it with their own advertisement. As long as they don't use the ad that I made, they are not doing anything illegal. They could make a picture of someone taking a crap on my product and post it all over the internet and there is nothing I could do about it."

        So say for example you are a movie star. Your product is your image. If someone took an advertisement you posed for and altered it to make it seem that you were advertising something that you were not, you can sue for misappropriation of your image. Companies, like famous individuals have the ability to protect their goods to the extent that they may be improperly appropriated and used in ways that they were not initally intended to be.
        If you are thinking about tabloid photos right now, let me just say that, barring enthical conduct by overzealous paparazzi, those are photos of famous people actually doing what the picture shows. I am talking about possibly altering the item. You have the ability to control your advertisements.
        And, looking at your "crap" example...that could be problematic if it were being used as an ad for something, like a competitor product. However, if someone just wanted to crap on your product for the fun of it and make a photographic record, that would not be illegal...that would be art.

         

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      Mark, Oct 7th, 2006 @ 3:37pm

      Re: copyright claims...

      Why is it that we are watching these companies dollars and cents for them? Why are we so much up in arms if a company "could" lose a potential dollar? If we continue with this logic then we as consumers just automatically shoulder any burden these companies perceive. If the company offers a product for sale then you not buying it could be perceived as a loss, no? Looking at a product and making fun of it (if you seem to perceive it as humorous) would be defamation, no? How about if there are potential customers around and because of your mimic they change their minds on that purchase, the company should hold you liable, right?

      Companies are beginning to be like babies they bitch and whine, instead of the government telling them to shut up the consumers are told to bear their burden and we take it. How many more 'injustices' can these companies find before they knock on your door demanding money from you?

      You say that these companies have a 'right' to control how your product is perceived? Really? I would like you to reply to my comment and explain this. To begin perception is just your opinion of something. So if your perception of a product or a song on the radio is controlled by the license holder or owner then you should not be allowed to perceive the song as not good, right? As you state this is an important and should be protected by these companies. At what point should you be allowed to say or think that the qualities of one product differ from what is advertised ?

      If it is truly their right to your perception of their product then why should we be given a choice on brand a,b,c? Really, do you have a right to choose as a consumer? Is your choice based on how you perceive the product?

      Basically I am just curious how strong you support your convictions. Do you really believe these companies have these rights? If you make something and sell it off for a price do you have the right to determine the products life after you made money from it? What does it really mean to pay for something? What should we really get when you give money in exchange?

      I am looking forward to your enlightenment...

       

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        anonymous, Oct 8th, 2006 @ 8:39am

        Re: Re: copyright claims...

        Deepest apologies for the confusion. You are completely right that anyone can dislike or have a negative opinion about a product. They can publicly state their opinion about that product. Companies CANNOT stifle criticism. I think we have some governing document protecting that one.

        What the company can protect is how their own affirmative advertisements and advertising efforts are appropriated by others. A shampoo bottle is more than a container. Its label is an advertisement. Its contents or bottle could be patented. Its name or logo could have trademark protection. If those things are altered or or appropriated and used in commerce, it is probably within the company's right to control those uses under Title 17. However, you could take any portions of the product that are not protectable and make your own advertisement with them and use that as an image in conjunction with your criticism or bid for sale.

        The right of the company is not to "determine the product's life" after it is sold, it is to determine how your products or advertisements are used to affect future sales of your goods. This does not mean there cannot be criticism of something, or that you can't like it, or that you shouldn't have a choice between differing items. The focus is on how you use the company's intellectual property when you decide to affect commerce with it.

        As far as the truth in advertising problem, I'm not as certain. I'm certain there is statutory or common law guidance on when the qualities of a product impermissibly differ from what is advertised. Though it is probably not a bright line rule.

        I hope this explains my argument to some extent. I like the discussion. Keep it coming.

         

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      krached, Oct 7th, 2006 @ 8:57pm

      Re: copyright claims...

      The first sale doctrine applies to the bottle, and the company cannot use copyright to prevent that sale. The problem is that the label is copyrighted. Case law clearly supports the proposition that labels may be copyrighted. By taking a picture, then duplication has occured. The bottle can be sold, but the seller may not take a picture to assist in doing so.

      As for using fair use, Techdirt seems to like to throw around the idea that fair use is clearly covers the situation. One, fair use is a defense to infringement. During litigation, the defendant bears the burden on showing fair use. As for being clearly covered under the fair use doctrine, 17 USC 107 states:

      "Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."

      I do not see a situation where fair use is covered. Techdirt seems to think fair use = a little bit of infringement and this is not the case.

       

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        teknosapien, Oct 9th, 2006 @ 12:31pm

        Re: Re: copyright claims...

        Does this mean if I resell my car I cant show the car company logo which is also protected under this assumption?

         

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          anonymous, Oct 9th, 2006 @ 1:05pm

          Re: Re: Re: copyright claims...

          Really good question. I'm guessing there is some exception, or if not, car companies don't want to sue people who have purchased their automobiles.

          Maybe it has something to do with the fact that it a used good. If I have time, I'll look into some case law and try to find an answer. It's a good question.

           

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        gone to the dogs, Nov 12th, 2007 @ 10:00am

        Re: Re: copyright claims...

        You guys are missing something. this is not just about big business.

        I own a home based business. Doing very well with it.

        Our products are being sold on the Internet and Ebay at cost and below cost. Our products our stolen everyday while being shipped.

        Because they are not using company photos to promote the products on the internet, there is no legal action that the company can take.

        This will put alot of the people who are contracted to sell for this company out of business.

        Including me.

        There must be a law to protect us, dont you agree?

         

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          WMV, Dec 3rd, 2007 @ 7:45am

          Re: Re: Re: copyright claims...

          I deal with companies like this everyday. They have no leg to stand on. As long as the re-seller comes into the possesion of an item in a legal manner (not stolen or illeagally copied) they have the right to re-sell the item for whatever price they choose. The main issue with these companies is the price these items are being sold for is less than their MSRP. They require their "authorized" retailers to sell for a minimum price, but if not bound by their contract a person can and will undersell this price. They may not make as much profit per item, but will make up for it in additional items sold. When given the choice between the same exact item, how many times have you bough the less expensive one?

           

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      Dealt_soul, Apr 4th, 2008 @ 6:34pm

      Re: copyright claims...

      I resell a wide range of things. First off when you by wholesale or even retail of a shampoo bottle, there is no contract on that bottle. And even if there was then that would mean that no one but that company can sell that product. No store or anything can sell it for them not walmart, kmart not even cvs. The only contract to resellers is that you do not share the wholesale price that you pay, and the catalogs and your resell account that you have open with them, they have rights of that and thats it. On another note. to publish a pic of the catalog pic then you would have to have permission to post it, but permission for your own pic the answer is no.

       

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    Who Me?, Oct 7th, 2006 @ 11:26am

    Copyright

    Isn't nearly everything in stores today copyrighted? Does this mean that I can't resell anything and that I really don't own any of the things I've bought? This is just plain nuts! This is another example of Corporate mentality. The Corporate heads feel no responsablility to either their customers or their employees, only to the stock holders and for maximizing the corporate profits regardless of the societal cost.

     

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    Matt Gonzales, Oct 7th, 2006 @ 2:43pm

    "All you read and
    Wear or see and
    Hear on TV
    Is a product
    Begging for your
    Fatass dirty
    Dollar"

     

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    ehrichweiss, Oct 7th, 2006 @ 3:18pm

    design patent..

    The bottle would be a design patent, and that's not something that's copyrightable. One couldn't sell their own brand of shampoo with their bottle design but nothing prevents someone from taking a picture of it and reselling it.

    There should be plenty of precedents on the subject available online.

     

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    Dan, Oct 7th, 2006 @ 3:26pm

    Ummm...okay

    I'm just a bit surprised to (in 43 previous posts) hear no commentary to the effect of "why the hell would anyone buy or sell a bottle of shampoo on eBay?".

    Seriously, somebody needs to start eBay Anonymous for these people.

     

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      TLC, Oct 8th, 2006 @ 7:39am

      Re: Ummm...okay

      I agree, why would anyone wnat to buy a bottle of shampoo or have a bid war for it when I can go to COSTCO or SAMS and get it by bulk cheap..crazy people with nothing better to do.

       

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    Husa, Oct 7th, 2006 @ 9:04pm

    B.S. happens to more then shampoo sellers

    I outright purchased several satellite boxes and the cards that go in them about 6 months ago. I then put them on ebay and immediately was told that I was infrindging on dishnetworks rights and they pulled my auctions as well. It's all a bunch of bs, if you cant sell something on ebay that you own, how is ebay still in business?

     

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    Tashi, Oct 7th, 2006 @ 10:05pm

    Blank, cover or pixelate the label, state the product in the description and state the stupid reason why the label is blank. Problem solved. Nonetheless, it is incredibly frivolous and a horribly draconian precedent. This could in effect apply to everything resold.

     

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    Jerry, Oct 8th, 2006 @ 7:54am

    Shampoo

    ok so if I try and resell my FORD truck I cant take a pic. and post it Ford and GM are all TM rightso anything we buy then try and resell we cant take pics of if its TM this is going to be good

     

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    Jerry, Oct 8th, 2006 @ 7:55am

    Shampoo

    ok so if I try and resell my FORD truck I cant take a pic. and post it Ford and GM are all TM rightso anything we buy then try and resell we cant take pics of if its TM this is going to be good

     

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    taxciter, Oct 8th, 2006 @ 8:28am

    The Ultimate "Solution"?

    Make your own shampoo.
    Problem is, both government and industry will make it very very difficult to buy the ingredients.
    This is because only a corporation or a very smart person has the sense to mix shampoo without poisoning themselves and others. Further, unless shampoo is properly colored, scented, and surrounded by a bona fide well-designed container, it can be extremely dangerous to our economy.
    After all, stupid people are a national treasure and must be protected from ingredients. And initiative.

     

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    What the, Oct 8th, 2006 @ 8:47am

    Shampoo

    just a thought here, almost if not all companies have a copyright, trademake, or something. So if I took a picture of my Ford Mustang, netowkring equipment, or what ever the case. Am I not doing the same as the she did with the shampoo thus almost everything should be pulled.

     

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      anonymous, Oct 8th, 2006 @ 9:21am

      Re: Shampoo

      I've been thinking about that same thing. Notwithstanding my arguments about the impermissibility of doing this, it happens all the time. I'm thinking perhaps that it is just not generally worth the company's time time go after one time resales where a picture is taken. Generally, a company should get more benefit from such resales than harm.

      It could be that although they have the right, companies just don't enforce it all the time. For example, it is illegal to hang things from your rearview mirror when the car is in motion (even those handicapped signs you get at the DMV...go figure). However, cops don't generally enforce this law. But it is often used as a basis for a stop when there is some other reason the cop wants to pull you over.

      I'm curious as to whether the company got after this woman for a one bottle resale or whether she is doing something more. Suits aren't generally filed over one bottle of shampoo. The original article says she planned to "make some money selling salon hair care products online." Sounds like a business. While this is probably legal, I still wonder about the photograph. The bottle is probably no longer protected, but the label might be copyrighted and the name could be trademarked.

      The claims as outlined in the original article do seem to go a little far, but I dont' think 17 USC 113(c) solves the problem. While the bottle might be deemed a useful article, the label probably is not.

       

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    Kimberly Ann Kubalek, Oct 8th, 2006 @ 10:11am

    ridiculous legal situation

    Buying health and hygeine products on Ebay is just stupid. You have no way of knowing what is in there! Good luck suing Ebay or the--dare I suggest it--manufacturer?!--when all of your hair falls out and you discover something was added to the product.

    Additionally, EBAY in general is so rife with problems no educated person still sells or shops there. Thank God for EBAY there is an endless supply of stupid people to keep them in business.

     

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      dealt_soul, Apr 4th, 2008 @ 6:55pm

      Re: ridiculous legal situation

      Well it sounds to me that you are really edumacated with ebay, you must have been there countless times.

       

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    DrZook, Oct 8th, 2006 @ 12:27pm

    empty bottle for sale...

    Is it just me or doesnt anyone else wonder at the virtues of buying an empty shampoo bottle?

     

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    Jay, Oct 8th, 2006 @ 1:03pm

    Shampoo for sale

    OMG, what if she's a TERRIOST trying to trick us into buying her innocent bottle of shampoo!!! Then when we open it........BOOM!! Now who do we sue???

     

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    Jason, Oct 8th, 2006 @ 3:08pm

    wtf

    What the hell brand of shampoo is this? I'll make DAMN sure to NEVER purchase anything from them OR their parent company, and cause a big scene to everyone I know.

     

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      hairdresser, Oct 25th, 2010 @ 11:11pm

      Re: wtf

      The product is AQUAGE and it's by SalonQuest who sends harassment letters to anyone selling their product outside of a salon. They are afraid the general public may wash their hair in an improper way I guess...

       

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    fatpuppy, Oct 8th, 2006 @ 4:21pm

    Shampoo for sale...

    What about eBay Motors. Are the automakers going to come after all of us who decide to snap a photo of our cars when we put them in the used car ads in the paper, or eBay or any other online listing? I think not.

    The shampoo company sold their product, end of story for them. They should only be concerned (and happy) with the fact that someone bought their product. Resellers (whoever that happens to be) purchase at a discount and RESELL. They sign the contract, not this lady who happened to buy it off the shelf from the reseller.

    Bottom line is this lady spent money to buy a product form a seller. With the exchange of money, the seller doesn't have the right to then tell this lady what she can or can't do with her product. If she wants to sell it,let her, if she wants to bury it in the back yard, so be it. If she wants to bath her dog in it, then god forbid we get in her way.

     

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    identicon
    SteveK, Oct 8th, 2006 @ 5:16pm

    The Demise of Shampoo

    This is what you get when you put attorney's on retainer or even worse, put them on staff. Read Ebay's disclaimer and refer back to line one of this comment for further intrigue. Genetically speaking in 50 years shampoo will be sold only at seaworld, bald will rule.

     

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    P.D.F., Oct 8th, 2006 @ 8:14pm

    I have an idea!

    What happens if she takes a picture of the bottle of shampoo after she bludgeons some of these copyright lawyers in the head with it. Will the company still believe that the bottle is still under their control? Will they believe that it is a violation of infringement if their trademark is leaves an imprint on the aformentioned lawyers forheads?

     

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    Anonymous Coward, Oct 8th, 2006 @ 11:40pm

    Why;s this guy so cereal

     

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    The infamous Joe, Oct 9th, 2006 @ 4:16am

    I'm no expert

    I'm no expert or anything-- I'm certainly not going to be quoting articles or paragraph from some legal text, but it seems to be that all this "It's copywrited" and "It's trademarked." mumbo jumbo ignores what those something: She's not selling the shampoo as her own creation.

    Now, I may be wrong, but to be actually doing something wrong, she'd have to change the name of the shampoo to something close enough to the actual name of the shampoo that it would confuse the "average" consumor (Trademark) and/or ditch the bottle completely and claim it's her own home-made shampoo and sell it in a different bottle (Copywrite).

    Am I wrong?

    As for whoever posted the "english language" posts-- perhaps your country should sue our country for copywrite infringement-- and you should stop being a troll.

     

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      identicon
      ResumeOfSteveSnow, Jan 18th, 2007 @ 5:10pm

      Re: I'm no expert

      ---------------------------------------------- Resume of Steve Snow · Phone: 970-300-4770 ---------------------------------------------- stevesnow10@hotmail.com ---------------------------------------------- Work Experience: · Sales leads for clients using Internet Resources. · Solving almost any job any data from any program source. · Create/Fix/Change/Convert Databases. · Display your data on your website, any numbe of pages in html/PHP/ASP. · Graphs, Maps, Charts, Diagrams, Pictures, Photos, and Graphics in Database and Reports. · Mail Merge of Databases/Information/Spreadsheets/Programs. · Create reports from Data such as PDF, Spreadsheet or HTML. · Fill out Website Forms authomatically, or gather intelligence from them. · Exchange data from any number of programs, including websites. · Create inter office communication between cities/locations using Internet. · Inventory, Sales Lead, Accounting, Statistical Database Creation. · Meetings with employees to understand their needs/solution they wanted. · Training of personnel in all above systems. · Write software to perform the above jobs. · Problem solve any data question/problem you may have. · Transfer data between any number of unrelated programs, including websites. · Merge Data from unrelated programs and databases. · Test your entire website for errors by automatically filling in all your webforms on all your webpages. · Screenscrape, Webscraping, and Datamining from the internet straight to your custom databases. · Chief Developer and programmer for above with 30 years experience. · References available on request. ---------------------------------------------- Skills: · All VB/VBA,COM/ActiveX,DOM,SOAP, .NET · All SQL programming, Oracle (incl. PL/SQL),MS Access,SQL Server,Sybase · XML,HTML · All database access methods, ADO (ActiveX Data Objects),DAO (Data Access Objects),Microsoft Jet, ODBC · Operating systems, Windows NT 4.0 / 2000 / XP,Windows 95 / 98,ndows 3.1 / 3.11 ---------------------------------------------- Availability: · By the job or task/requirement (bid). · Contract or Independent Consultant · Full or part time Employee. · Can fly in and be available for "Live" meetings on short notice. · Remote desktop (anywhere in the world, using XP Pro and above). ---------------------------------------------- Bondable/References · SECRET Clearance (US Government) · Fully bondable · Non-disclosure/Confidentiality Agreements. ---------------------------------------------- Education · US Military, includes "SECRET" Clearance, University, Trade Schools & Certifications. ---------------------------------------------- Citizenship · Us Citizen. ---------------------------------------------- Vehicle/License · Class "A" License ---------------------------------------------- Special Mention · Can sign a waiver to not use your Company's Medical Insurance Policy (Already covered by US Veteran's Administration Medical Insurance)

       

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    Anonymous Coward, Oct 9th, 2006 @ 7:27am

    only uneducated people use ebay? i have a college degree in engineering, and i use ebay all the time. when i can get a dvd for under 5 bucks, under 7 w/shipping, i'll take that. i've only had 2 problems out of the hundreds of auctions i've been involved with. so you can take that uneducated statement and shove it where the shampoo bottle is.

     

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    Aquage sucks, Oct 10th, 2006 @ 4:55pm

    Ban Aquage products

    Threatening this poor lady with copyright violation is a desperate act by Aquage. Let's help them go under by banning all their products.

    STOP USING AQUAGE products NOW

     

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    Thoney, Oct 12th, 2006 @ 11:24am

    For Real?

    I looked for the source of this article on line and could only find references back to the poster Grg Beck. Is this real or made up and if it is real where can it be verified?

     

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    |3331373|3|_||3, Oct 25th, 2006 @ 7:41pm

    EBay not just fopr idiots

    there is a wonderful system inplace for making a decent prfit on EBay, all you need is to set up 2 accounts, a legitimate one and a fake one based in some hole where they don't care to enforce forgie laws. then you place bds using your reakl account,. then go through and post a load of random high bids for the same items, making sure you also hit a lot of other peole over and over again. When ut turns out that your forgien account is fake, you get to pay your price for the items that you bid for. The only problem is that you need to keep making new forgien accounts.

     

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    Miss DePoint, Nov 11th, 2006 @ 6:10am

    Reasonable expectations

    I think the Manufacturer should have every right to control the image of their product. Imagine buying a bottle of shampoo made by "X" manufacturer from ebay reseller "A" only to have your hair fall out after using it the first time. You'd of course blame the Manufacturer for this unfortunate event not realizing that the ebay reseller "A" has replaced the shampoo with some at-home concoction and has passed it off as someone elses. The Manufacturer could then face a very expensive lawsuit from the person who has foolishly bought product off the internet (aka unauthorized seller).

    The manufacturer is LESS concerned with the fact that Jaime Olson will make $1.00 and MORE concerned with the fact that she may unknowingly compromise the image of their company. This is true for any Name brand -- There should be a reasonable expectation of a manufacturer of any product to control its own image.

    Also, there is a big difference between reselling topical items (i.e. Shampoo, lotions, beverages, makeup, etc.) and inanimate objects such as toys, pet bed, cars, computer software. You'd have to be a special kind of crazy to buy a shampoo from an unknown, possible unreputable person on the internet. SERIOUSLY!

     

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    George Mart, Nov 16th, 2006 @ 9:30am

    hello

    POOP

     

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    MrStock, Jan 4th, 2007 @ 10:45am

    Rubbish

    There is always an exclusion in copyright law for selling a product. How on earth can some one sell a product without advertisinig it? These lawyers should knlow better and have teir bottoms slapped. Really it's elementary.

     

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    sherri, Apr 20th, 2007 @ 1:44pm

    Aquage

    This has been some very good reading! I used to sell Aquage on my website until they sent lawyers after me and threatened me with lawsuits toward everyone who ever bought it for me. Good grief...at the time I was too dumb to know any better and they scared me into taking it offline. Funny thing...now, it is on every beauty product website. I feel this company is a total joke.

     

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    Scott Randolph, May 21st, 2007 @ 9:37am

    Reselling of products online

    I regularly and routinely sell companies' products online this way. If I purchase something from a company's legitimate seller/reseller, at the price they are advertising/selling it for and I choose to sell it for ANY amount (even less, at a loss to me), there is not one thing they can do about it. If that were the case, no one would ever be able to advertise/sell a used car (or anything else for that matter) on the private market! How absurd!

     

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    Ken, Jul 16th, 2007 @ 12:53pm

    Question about this

    Hey all,

    I have a question maybe someone could answer. IF, this woman purchased the shampoo, put it in her own bottle with her own name, could she resell the product under her own brand name without the manufacturerer's permission?

    If so, could she do so for a use other than hair shampoo? Say it was also good for removing pet stains from carpets for instance? Could she buy it and repackage it for this other use?

     

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    Ken, Jul 16th, 2007 @ 1:05pm

    VERO dept. at E-bay

    I had this happen to me. A company that I purchased an $800 Real estate marketing program from, contacted the "VERO" dept at ebay and claimed this was software that I was licensed to use only. Ebay immediately pulled my listing that had multiple bids on it without ever asking my side of the story. First there was no software at all, just manuals and c.d.'s. All original. No mention was ever made that I was buying a license to use only, and that I couldn't resell it. Anyway, I filed what's called a counter notice with e-bay, that gives the company 10 days to sue you or the auction goes back up. They didn't respond, I sold it. Ebay is a bit of a joke in this area. Anyone can claim you don't have your First Sale Doctrine right as an American to resell something you purchased because they don't want any secondary market and they want to control it. Luckilly this is America. If this happens to you and you know you did nothing wrong, file the counter notice and make them sue you to pull your bottle of shampoo off the shelf. Like someone else posted, are they going to sue a different person every day. That could get expensive, especially when they lose.

     

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    C. Taylor, Aug 27th, 2007 @ 10:40pm

    Thank God for Companies that protect their professionals.
    You should Not be able to sell professional products without a license or a store front. Just as you would like to make a profit so do the salon owners that pay for their licenses their business expenses, Payroll , payroll taxes and their education Fair is Fair!!

     

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      Dealt_soul, Apr 4th, 2008 @ 6:46pm

      Re:

      Really when you by wholesale you have a right to sale any product that they offer for people to sale. Some wholesalers require a deposit that is refunded when a amount of sales is made, so really if you have paid for a resell lic. and the account then you have all the right in the world. What just because you have a salon you dont want others to sale the product?? Afraid that others can sale it better?? Everyone can __uk off on that subject. "Fair is Fair" thats right.

       

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    sherri, Oct 28th, 2007 @ 6:40pm

    re: Protecting the Professionals..

    If the "professionals" did their job, then customers wouldn't have to go online to search for the shampoo in the first place!

     

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    kate fish, Feb 20th, 2008 @ 9:59pm

    can one buy bulk and then relabel repackage it and

     

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      store sales, Mar 27th, 2008 @ 10:50am

      Re: can one buy bulk and then relabel repackage it

      I would like to know this also. But I can not find the answer. Does anyone know?

       

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    kate fish, Feb 20th, 2008 @ 10:09pm

    Can one buy a bottle of shampoo relabel with own company logo and then resell it.

     

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    store sales, Mar 27th, 2008 @ 10:48am

    resale

    There have been several questions on relabeling merchandise and reselling it. Can this be done?

     

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    Scott, Apr 5th, 2008 @ 9:34am

    Who the flick buys shampoo on ebay??

     

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    kate fish, Apr 18th, 2008 @ 4:20pm

    re re checking for comments on relabelling shampoo or other products with own label, can one do this legally. Please does anyone know this..... thanks katefish

     

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    Graham, May 4th, 2008 @ 1:38pm

    That's bull, because everyone sells shit on eBay, and of course, pictures of tags, etc. are taken of products, and sold without questions. It's funny how we live in a society where people are suing companies for millions, and now what, a company is going to sue over bs. IM PRETTY SURE THEY ARE GOING TO HAVE A BIG SETTLEMENT- they are just going to drop more ducats on a lawyer, than what is to be made.

     

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    Hair Guru, Jun 27th, 2008 @ 6:05pm

    I have been through this before

    You absolutely 100% can sell anything that you want after you have purchased. As a matter of fact there is a huge company in New York that buys product from the Redken and Nioxin distrbutors and done this very thing. They have sued several times and have won each one.

     

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    Miss Hairstyle, Jul 4th, 2008 @ 2:41am

    Hmm

    Dodgy!

     

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    Betty Boo, Oct 25th, 2010 @ 11:04pm

    Aquage Sucks

    It's not an Ebay issue, It's a Salonquest issue. Aquage is known for harassment at all levels. They want the consumer to see their product as "exclusive". Yeah right...do a Google search for Aquage and you will find the product ANYWHERE. They spend thousands scaring people into not selling their product. Ridiculous!

     

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    Tianung, Oct 14th, 2011 @ 5:06pm

    Turn the table

    Quite often it is possible to turn the table on the company issuing the threat by sue-ing them in return for harassment.

     

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    wereontoyou, Jan 6th, 2012 @ 1:02pm

    Dirty Company

    Salonquest is a horrible company who treats their employees like dirt! Full of high paid executives who cheat, steal, lie and have no morals. A very dirty company!!!

     

    reply to this | link to this | view in chronology ]


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