In a recent High Court decision involving the online fast fashion retailers Shein and Temu, several copyright claims brought by Shein against Temu over the alleged unauthorised use of product photographs have been dismissed.
The claims related to the use of photographs by Temu for product listings, the use of which Shein alleged was an infringement of copyright owned by it in the images by way of reproduction of the photos, authorising users to reproduce the photos (by viewing them online), communication to the public, as well as a secondary infringement claim for use of the photos to advertise products online.
The circumstances in which Temu came to using the photographs in question is important here. Shein operates under an original design manufacturer model, whereby suppliers create individual product designs for Shein, then the products are listed using photos taken either by Shein employees, an agency or by the supplier themselves. Suppliers often have unsold stock which they sell via other platforms, such as Temu. Whilst Shein has since prohibited this, it means that listings that were on Temu often used the same photographs as those on the Shein website.
Due to the volume of photographs included in the claim, the court opted for a trial by sample. Of the five photographs used in the trial, four were taken by employees of Shein and one was a supplier photograph. It was found that Shein did not have copyright in the supplier photograph, as the supplier has commissioned a freelance photographer to take the photo, who thus had first ownership in the same and had no knowledge that the photo was for use on Shein, meaning Shein had no enforceable rights in the photo, other than a non-exclusive licence.
The claims in the photographs taken by employees failed also. Shein dropped its claim based on reproduction due to jurisdictional issues as its servers were not based in the UK. The argument based on Temu’s alleged authorisation of its users to reproduce the photos was dismissed following Temu’s successful use of the temporary copies defence as well as the fact that users viewing such images did not count as ‘authorisation’ for users to reproduce them. The claim based on communication to the public was dismissed as the court found that there was no deliberate intervention by Temu with the aim of providing access of the works to public. Similarly, the secondary infringement claim was dismissed due to Temu’s lack of knowledge that the listings could have been infringing.
Temu brought a counterclaim against Shein for earlier wrongful takedowns of listings based on alleged copyright infringement in the photographs, for which the court found Shein to be liable in line with the above.
This case highlights the difficulty in establishing platform liability and the risk of intellectual property enforcement without a verified chain of ownership in the UK.
If you have any questions on the above, please do not hesitate to contact the team at McDaniels Law on 0191 281 4000 or legal@mcdanielslaw.com.
