Product images are a key tool for affiliates but they can raise concerns about copyright. Do affiliates need permission from the copyright holder? What do you need to consider, and what do you do if there is a complaint?
Product feeds are an important tool for affiliates, making important product and pricing information available in a machine readable document. Merchants provide the URL of the image in the feed, and affiliates publish them on their website.
Most networks and platforms make the product image compulsory – merchants have to provide an image for every product. However, while the merchant might have permission to use the images on their own website, but what about making them available for publishers to publish?
It is probably fair to say a lot of e-commerce sites can’t say for sure if they have explicit permission to use every product image they list. Larger retailers with legal teams are probably more compliant, but the long tail of small to medium retailers may be less prepared.
In cases like these, it is possible that the manufacturer or official agent for a product may object to their product images being used without explicit permission. Professionals in the affiliate industry no doubt think that is nonsense, but it can cause friction when they don’t understand the affiliate relationship. You can understand how it may be a bit alarming discovering these images for the first time without understanding the context.
It is rare for this to cause an issue but it does happen. There have even been instances where lawyers have contacted affiliates to get images removed or even to claim for damages. A few aggressive ‘content protection’ agencies make a living out of this sort of thing, sharing the from fines and lawsuits revenue with the copyright holder.
They have been known to target merchants and affiliates, so it is a challenge for the whole industry.
What do I need to consider?
I’m not going to recommend massive changes based on a very small risk, but have a quick think:
- Do you sell products from a supplier who is known to be over protective?
- Did any product images that you use on your own website come with any usage conditions?
- When you made your images did you just rip them off the Internet without really thinking about where they came from? (Be honest…)
- Did you blatantly steal your product images from a competitor?
If the answer to any of these questions is “yes” you might want to think about what the real risk is. In extreme circumstances consider changing the images you provide to affiliates.
The ‘fair use’ argument
The armchair lawyers amongst us are probably screaming BUT ITS FAIR USE. It would be lovely if it was that easy.
Fair use is a copyright theory that permits for limited use of copyrighted content without consent. Eligibility is complicated and the laws vary by depending on the country, but generally ‘fair use’ applies to uses like commentary, critiques, news reporting, teaching, academic works, or research. The definition does not usually specifically include (or exclude) ‘for profit’ uses.
In some cases, the idea of fair use may be used as a legal defence to defend the use of copyrighted photographs, but it is certainly not a magic ‘get out of jail free’ card. If someone is contesting your use of certain images, it is likely that they have considered fair use and decided it does not apply.
It happened to me! What do I do?
I would love to give you a definitive course of action, but if someone does make legal threats then you need to seek some proper legal advice.
In most instances you should seek advice before you make an official response, but it shouldn’t count against you if you discretely contact your network or the affiliate representative for the brand for clarification. It could all be a misunderstanding and a quick chat could be all that is needed to make the problem go away.
If that doesn’t work the only advice I can give is to lawyer up. I would hate to make things worse by telling you to do the wrong thing.
One thing to note – once a brand empowers a copyright protection agency to act on their behalf, they may not have any say in who they persue or take action against.
Remove the image
It goes without saying that you should remove the contentious images from your feed / site immediately. Bear in mind that some affiliates “cache” or copy product images to their own server so you might need to reach out to your publishers to eradicate them completely. It may be more effective to completely remove the entire product (not just the images) from your feed.
You should also ask your web or SEO team to exclude the offending images from tools like Google Image Search (usually done by editing your robots.txt file).
Remove from Google image search
It is likely that anyone searching for copyrighted images will use search tools like Google, so if it isn’t visible you are less likely to be targeted.
If Google Image Search isn’t a core part of your SEO strategy you could also consider excluding product images en-masse as a preventative step.
In an ideal world…
If everyone took these steps all parties would be protected to some degree.
Networks / feed providers:
- Ask advertisers if their images are signed off before they launch the feed.
- Place responsibility (but not liability) for checking suitability of product images on the merchant.
Retailers:
- Take responsibility for the images (and other information) in your feed.
- Take reasonable steps to check the product images on site and in the product feed are safe.
- Add a statement to the T&Cs and privacy policy making no claim over copyright of any third party images.
Affiliates:
- Double check when you aren’t sure – especially for manufacturers who are known to be unreasonable/fussy (Apple).
- Add a statement to the T&Cs and privacy policy making no claim over copyright of any third party images.
This article was written as part of the Beginners Guide to Awin Access. As it became longer it was moved to its own article. You can find even more information on this topic in the book Affiliate Management for Self-managed Programs, available on Amazon.