A couple years ago, we wrote about a case that involved the question of whether reselling
a legally purchased shampoo bottle was illegal. Basically, the shampoo company only sold to authorized resellers, who sold them to hair dressers, one of whom sold them to a woman who put them up on eBay. The shampoo company claimed that this listing infringed on their rights. It appears that a very similar case is now going on, again involving the same basic fact pattern (shampoo company sells to authorized resellers, who sell to salons -- then another company buys the shampoo from the salon and tries to resell it online). While the court seems to have correctly noted that there's no trademark infringement
in how the seller advertised the shampoo (noting that using the terms honestly, rather than to confuse, shouldn't be seen as trademark infringement), it seems to have totally flubbed the copyright side of the claim, in suggesting that posting photos of the bottle (even though those photos were taken by the seller) potentially may have violated the copyrights of the shampoo company
. The seller argued that it was fair use, and the court wasn't convinced, using a somewhat questionable reading of the "four factors" test of fair use. However, what's more important, as William Patry points out in the link above, this shouldn't even require a fair use defense, as copyright law states:
"In the case of a work lawfully reproduced in useful articles that have been offered for sale or other distribution to the public, copyright does not include any right to prevent the making, distribution, or display of pictures or photographs of such articles in connection with advertisements or commentaries related to the distribution or display of such articles, or in connection with news reports."
That would seem to suggest that it's not a copyright violation to sell a shampoo bottle. The lawyer who made the fair use defense for the seller defended
his argument noting that the court, for no clear reason, required all briefs to be under 17-pages and in a large font. That meant that the lawyers had to choose their arguments carefully, and focused on the fair use argument, because they had won an almost identical case on that argument at an earlier date.