Tuesday, August 18, 2009

eBay Unreasonably Exploits Your Photos To Sell Other Auctions

Say a year ago you were selling an XBox, a Dynalite pack, or an image of jesus in your chewing gum. eBay has those images stored on their servers (still), and unless you opt out by the end of August, your photo could be used to sell someone elses' widget.

In other words, all of the trouble you went through evenly lighting a subject, choosing the right point of focus, and so on, can be co-opted by eBay to sell someone elses' product. At first, you can expect eBay to do this for free, but over time, as with "enhanced listings", and so on, you'll likely have to pay a fee "for the convenience eBay is giving you of not having to take the photo..." or some other silly reason.

What do you, the photographer get, in exchange for their co-opting of your photo?

(Continued after the Jump)

PHOTO CREDIT, OF COURSE! eBay writes in response to the faq "Is there an advantage for me if my photos are chosen for the eBay product catalog?", answering "If we choose your photos to represent a product in the eBay product catalog, you'll get an attribution including your user ID and a link to your profile page whenever your photo is used on a product details page. This can give you extra exposure to a larger audience of shoppers."


So, I am B&H photo, selling a Nikon D3 kit, and I've paid my employee to photograph it. Now, some schmuck in nowheresville can use that image to sell their own D3. As I said before, eventually, for a fee you can expect. Just what B&H wants, people they're competing with using their own photos to sell against them.


What's worse, is that this is an "opt-out" scenario, meaning that unless you take action and opt-out of this, eBay gets to use them. Further, if you opt-out AFTER September 1, anything that was already selected they get to use. In other words, you may not take away the permission your inactions granted, ever.
To learn more, read here, and to opt-out, click here.

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.


Will Seberger said...

This sucks, but to be complete, Ebay users have been grabbing random photos from around the Web for years to illustrate their sales.

Most, well a significant portion anyway, of the equipment sales have pictures that were taken from manufacturer sites, or places like B&H.

Ebay is a flea market. Always has been, always will be.

Really, their prices (thanks in part to "Buy it now") are often more than retail from legitimate sellers like B&H. I'm amazed they still sell anything at all.

JC said...

Wow, I missed this development entirely. I should read my emails from eBay more carefully, I suppose.

alex said...

Followed their long list of instructions to find that I was already opted-out - I had never visited this area of eBay before but I was already set to opt-out...

Anonymous said...

The main issue with this is that if someone grabs one of my photos (or any other that looks mird like a user shot, rather than a product shot) then it creates the false impression that this is the actual item. I, for example always avoid auctions that use product shots clearly taken by a manufacturer.

So basiclly, eBay makes it easier for Mr. Scumbag to do fraud. Nice.

Nicholas McIntosh said...

Thanks for the heads-up!

David said...

"Ebay users have been grabbing random photos from around the Web for years to illustrate their sales."

That's all the more reason why this is unreasonable. Many eBay sellers use photos that they don't have permission to grant eBay to use. This could be because they themselves swiped them from another site (such as the manufacturer's website for whatever item they're selling) or because someone else took the photo (think of a bride selling her wedding dress by using photos the photographer shot at her wedding).

I assume somewhere in their T&C it says that the seller declares they have the right to grant eBay permission to use the photos, and will indemnify eBay if someone decides to sue.

Rod MacPherson said...

Make sure you follow those steps on ebay.COM, even if you normally use a localized version of ebay.

I normally use ebay.ca so i tried to follow the instructions that John linked to and there was no such option.

I logged into ebay.COM with the same userid etc. and there it was and it was set to the default YES.

..Sneaky eBay.

C. Kurt Holter said...

Good catch. I'd never have known about this had I not read of it here.

photo editing services said...

I have actually had my photos stolen to post an ad, not only that you could tell the ad was fake!

Jonathan Levin said...

Thanks for that, John.

I'm wondering if the opt out is retro-active for all pictures posted BEFORE the date you opt out, or does it just cover the images you post after you have opted out?


Gregg said...

Of the Top 10 Things I'm going to worry about, eBay using my eBay pictures, ranks about #319.

For those that have the time and inclination to become unhinged about these things simply "opt out".

On the other hand, eBay is creating a legal bear trap for themselves. They are operating under the assumption that sellers are using their own images in the first place. Just because the images are in their account doesn't give them the standing to assign usage to eBay.

Also, opt out is great for email, not so much for legal contracts. This might be a pretty mushy foundation if eBay had to go to federal court to defend their position. I suspect this will not go well for them.

eBay is going to do, what eBay is going to do. My father told me,"Never interrupt an opponent when they're stepping on their dick."

Luc Novovitch said...

What strikes me is that by doing that eBay in fact promotes shady, at least, selling practices. How can a potential buyer get an idea of the item for sale if the picture associated is actually showing something that someone else sold?!

Anonymous said...

Thanks for telling me; I don't think eBay gave me notice (at least not in a way I would notice) Off to opt-out.

troyfreund said...

Thanks for the help here, John. Much appreciated!

bpr said...

"So basiclly, eBay makes it easier for Mr. Scumbag to do fraud. Nice."

My thoughts exactly and that's a much more serious consideration than image rights. IMO using images that are not of the actual item, for used equipment in particular, invalidates the auction.

"oh, it's a 35-105 lens in canon fit so I'll use the first image that comes up..." which just happens to be a Canon, then when the buyer gets a Hoya will they be happy?

I bought a camera and lens that were illustrated with shots from the net in this way and had to complain. I thought this was misrepresentation and, fortunately, eBay/Paypal agreed.

sadly this proposal will encourage that sort of behaviour...

Anonymous said...

I think that this new policy will backfire on ebay. Ebay users cannot grant rights they do not own. Follow the logic:

(1) copyright in an image does not exist in an image until the image has been fixed in tangible form (ie: captured or exposed)

(2) copyright ownership does not vest with an owner until copyright in an image exists.

(3) you must be a copyright owner of an image in order to grant rights in that image.

Therefore, if you have not yet created an image, it is not legally possible to grant rights in that image to another party, like ebay.

You can agree to later grant rights in any image that you might create. This creates an obligation on your part to execute a license after an image is created. The point is, the license must be granted *after* the creation of each image (which is when copyright is created and vests with you as the owner).

To make this new policy work, ebay would have to build a licensing eula into every image upload.

Unknown said...

What's even worse is you will be credited for the photo. The typical eBayer will associate your account with the fraudulent activity they just got scammed by.

Papyria said...

Thanks for posting this, John.

I won two lareg content collections, one consist of over 30Gb of old magazine cover photos and another consists of over 35,000 proprietary complete magazine content summaries/references. Both I use to list old magazines on Ebay.

The cost to produce that content is until now approx. $ 200,000, and it is still growing.

Not in a million years am I planning to give Ebay over $200K in value for nothing, so my competitors can ride on my coattails.

It is time to develop a vision for 'paid content; in e-commerce marketplaces, just like Google already does in YouTube and EBlogger.

Those who create content which permits others to make money, shoudl get royalties from the revenues of the users. This will stimulate the making of more and better text and image content, which then again creates more sales.

Currently there is no such system in place. I believe it is largely related to the lack of true legal protection of 'small copyrights'. One cannot sue in small claims courts if one's copyright is violated.

To circumvent this, a clearing house site is needed where small copyright owners can join forces and register their small copyrights while in exchange the site will offer trading of that copyright for royalties AND actual legal protection/enforcement in federal courts if someone violates that small copyright.
That way owners of 'content valuable' product catalogs could register their catalogs of images and text there without having to go through a copyright registration process individually and the entire database would only need to be registered once.
next that site will nede to offer a financial clearing mechanism for to collect a percentage of sales resulted from use of that copyrighted content, probably through some monitoring mechanism, which both provider and user woudl have signed up on.

Jojo KInkaid said...

There is a forum I found on the internet that is free, and helps with Ebay, PayPal, business and the law. Just post any question, the experts will answer it if it has not already been answered!

The forum has a lot of expert advice on it. http://www.modeeworld.com/forums I found advice there about how to avoid EBAY suspensions, get past PayPal limitations, also lots of detailed help on creating your own business, getting past trademark violations, VERO and lots more. Plus general advice on how best to sell on EBAY, what sells the best, how to get the best price for your product, really everything related to EBAY and internet business.

Also advice about how EBAY really works and how PayPal really works. The inside scoop.

Beautiful forum. I was made a moderator of the forum and I love it!

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