Jamie Olson from California bought some Aquage shampoo, made by SalonQuest, and offered it for sale on eBay. Her eBay listing included her own photos of the product.
Soon after, a private investigator hired by SalonQuest, emailed Olson, demanding the she stop selling the shampoo.
You are displaying copyrighted Aquage containers in your advertisements," which, according to the private investigator, is a "violation of SalonQuest's legal rights under the federal Copyright Act.Olson, however, refused to cancel her sales in response to Aquage's threatening email. This week, she got a second email from the company's private investigator:
"On September 7, 2006, this office contacted you on behalf of SalonQuest concerning your unauthorized sales of Aquage products on eBay. Despite being formally notified that you are violating SalonQuest's legal rights, you have continued to list additional Aquage products on eBay. Also, you have continued to display copyrighted Aquage containers in your advertisements, yet another violation of SalonQuest's legal rights under the federal Copyright Act.
"SalonQuest would prefer to resolve this issue amicably. However, unless you immediately and permanently discontinue your sales of Aquage products on eBay and through any other unauthorized channels, SalonQuest has authorized us to forward this matter and your file to its legal counsel for further action.
Of course, the reason SalonQuest is going after Olson isn't because they don't want her to take photos of the shampoo bottles. It's because they want to control the secondary sales market, and they are trying to use copyright law as an excuse.
It argues that it has contracts with its distributors limiting resale of products only to licensed vendors. Therefore, it claims that reselling its products is a breach of its contracts. But Olson never entered into a contract with Aquage. She just bought the shampoo at a store and is now trying to resell it. Aquage's contracts with its distributors doesn't give it the power to control the entire secondary market for its products.
For now, Olson isn't backing down. Here's her latest eBay auction for Aquage stuff.
Update:
Fred von Lohmann, Senior Intellectual Property Attorney, says:
Saw the BoingBoing post about the copyright threats based on the photos of the Aquage shampoo.
Aquage doesn't have a legal leg to stand on. There is a clear exception in the Copyright Act that permits people who are selling or advertising a product to make and display photos of the the stuff they are selling, precisely to stop this kind of effort to control secondary markets. The exception is set out in Section 113(c) of the Copyright Act:
"(c) 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."
Fred
