When it comes to the fiercely competitive e-commerce retail space, building a strong brand that resonates with consumers is critical to success. Whether your e-commerce business is a brand of fashion items, household goods, or electronics, branding is what separates the serious players on e-commerce marketplaces from the rest.
A great deal of hard work, passion, and creativity goes into building an e-commerce brand. From designing a logo, creating a clever brand name, writing a slogan and product descriptions, to multiple other considerations, an e-commerce business’s branding is of paramount importance.
Equally important, however, is bringing your team up to speed on the basics of copyright and trademark law.
It is no secret that e-commerce marketplaces such as Amazon are rife with shady third-party sellers peddling billions of dollars worth of counterfeit goods. What’s more, it’s not uncommon for shady sellers to scoop up the intellectual property – including branding elements – of rightful owner/creators and using it for their own unauthorized content and product listings.
One example of this is in the case of an artist named Susie Ghahremani, who found her artwork being used on Amazon to sell a line of jewelry. This case underlines the importance of understanding your rights as a copyright holder to protect your brand. One element of copyright law that all e-commerce brands should be educated on, is the concept of “fair use.”
What is “Fair Use”?
In almost all cases and jurisdictions, using copyrighted material without the permission of the rights holder is considered an infringement. On most e-commerce marketplaces, the unauthorized use of copyrighted materials is grounds for an investigation by the platform. There is just one exception, however, known as “fair use.”
The United States Copyright Act allows the fair use of copyrighted content “for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.” Under U.S. law, copyright on any given material stands from the date of creation until 70 years after the death of the creator. Copyright laws in other countries are similar, but it’s prudent that you stay on top of copyright laws in all of the countries in which you operate.
Key Word: Transformative
Fair use is often used as a common defence against copyright infringement claims. Fair use is generally considered to be the use of copyrighted materials for comment, criticism, or parody. A key word in determining whether the use of copyrighted materials is “fair”, is “transformative.”
What is “transformative” use?
The use of copyrighted materials can be considered transformative when it is altered to the point that the original author can no longer claim ownership of the material. Some examples of this include the writing of fan fiction, the “remixing” of music, and the use of memes on social media.
This doesn’t mean, however, that all “transformative” use of copyrighted material is fair game. Several factors can determine whether the use falls within the criteria of fair use:
- The Purpose and Character of Use: Whether or not copyrighted material is used for commercial or non-commercial purposes is perhaps the most important distinction in determining fair use. If a work is used for monetary gain, then chances are that this will not qualify as fair usage since its main purpose is auxiliary (to turn a profit) instead of independent creative expression.
- The Nature of the Material: The nature of the material in question is also considered. Specifically, courts will examine whether the use of copyrighted material was creative or factual. Using copyrighted material in a field like marketing, for example, which involves creativity would be less likely to support fair use claims than something that is strictly factual and non-fiction such as the writing of a biography or a history book.
- The volume of material used: Another factor determining fair use is the amount of material used in comparison to the overall volume of the source material. In a case where only a small amount of material is used from a larger work – for example: a 10-word quote from a 10,000-word novel – a claim of fair use would be favoured. Cases where the “heart” of the material is found to be used, would often favour the rights holder. The “heart” of a work is generally considered to be the most memorable or impactful element. For example: the chorus to a popular, catchy song.
- Market impact: The fourth factor considers if the use of the copyright material impacts the holder’s income and its target markets. This factor examines whether the defendant’s activities may harm current markets, but also if they could cause any harm to potential ones that might be exploited. For example: if a copyright holder’s intellectual property is used by a competitor selling products in the same market, this would weigh heavily against the fair use argument.
The bottom line: As a brand owner, it is essential to protect your own copyrighted material while at the same time, ensuring that materials used in marketing, branding, and other initiatives do not infringe on another copyright holder’s rights.
Brands operating in the e-commerce space should ensure they are conducting thorough research to ensure that any images, product descriptions, videos, and other materials are protected, while also keeping tabs on competitors to ensure your IP isn’t being used without permission.
The fair use of content in the e-commerce space is often a concept that nefarious actors will attempt to take advantage of. This is why brands must continue to educate themselves about fair use and how it might impact their intellectual property strategy in the digital age.
