Amazon Merchants Liable for Third-Party Photographs

Amazon merchants can only create new products if they are not already listed on the platform. If a product is already listed, the product offering is created via inventory management. However, the unchecked adoption of the existing offering can lead to liability for potential copyright infringements. Amazon merchants are liable for third-party photographs, as the Regional Court (LG) Cologne confirmed.

The claimant was a photographer whose photo book was offered by an online merchant, inter alia, on Amazon. The photo book had already been offered on Amazon previously. There was therefore an existing product page and an ASIN. Photographs taken by the photographer were used as product images for the offering. The Amazon merchant "attached" itself to this offering and ultimately sold one copy of the book.

The photographer saw in the offering a violation of her copyright and sent a cease-and-desist letter to the Amazon merchant. The merchant rejected the claims. He himself had no opportunity to make changes to the product page. This could only be done by the platform operator or by the person who first created the corresponding ASIN.

LG Cologne confirms: Amazon Merchants Liable for Third-Party Photographs

By means of judgment of 22.08.2022 – 14 O 327/21 the Regional Court (LG) Cologne confirmed the liability of the Amazon merchant as perpetrator of the copyright infringement.

The panel proceeds on the basis that there is perpetratorship in the case of merchants who "attach" themselves. This follows from the fact that the seller publishes an illustrated sales offer on an internet sales platform in his own name, even though he does not have complete control over its content.

The court holds the corresponding case law of the Federal Court of Justice (BGH) in the fields of competition and trademark law to be transferable to the copyright situation. The risk that the platform operator may use photographs without sufficient authorization is not generally unforeseeable for the merchant. This risk is therefore also attributable to the merchant.

The court traces the perpetratorship of the Amazon merchant to the placement of the sales offer under the already existing ASIN and the product page. The merchant always had the option to end the copyright infringement or not to start it in the first place.

Conclusion

Amazon merchants are liable for third-party photographs when they attach themselves to existing ASINs and product pages in order to distribute their own product, as perpetrators of any copyright infringement. This means that the photographer can demand from you not only an injunction, but also damages.

The fact that merchants cannot edit an existing product page is, according to this decision, not sufficient as justification. If the platform operator does not modify the product page in response to any request by the merchant, the merchant has the choice not to offer the product on this platform. If he does so nonetheless, then the placement of the product constitutes the corresponding action.