Copyright Infringement?

Have you ever encountered ebay or another company removing a stamp for copyright infringement? Doesn't the USPS own the rights to the image used? How can reselling selling a stamp violate a copyright? We recently had Warner brothers complain about Harry Potter stamps and the marketplace removed them.

https://about.usps.com/forms/ps8676.pdf

Note section C.
Don

I think that form is intended to use the image of the stamp on a T shirt or poster etc.

That's an error by ebay in not understanding the "first sale" or "exhaustion" doctrine, at least for purposes of the US. See 17 U.S.C. 109. Warner Bros' rights are exhausted after the first sale of an article bearing images that are subject to Warner Bros copyrights. That is, Warner Bros has an infringement claim, if at all, against USPS. Once Warner Bros has authorized and licensed USPS to reproduce the copyrighted work in a physical article like a stamp (and presumably collected a fee), Warner Bros cannot demand or collect damages from downstream resellers of the article. This is why the record companies cannot sue resellers of vinyl record albums; they have been fully compensated via the first sale of a record to the original buyer.

ebay should not have taken down the items but likely has no offshore clerical staff who understand this issue, they just receive a complaint with an original image, match it to the ebay listing, see that it's the same, and take down the listing.

Edit: Added statutory citation.

That sounds correct from what I have read.
Unfortunately the marketplaces do not care if they hurt sellers.

Exactly, ebay has been overzealous with this for a long time. IIRC, A woman named Tabberone or something like that took it all the way to the supreme court.

She was selling things like ceiling fans with the blades covered with legitimately bought authentic MLB team fabric and ebay kept taking her listings down just because MLB asked them too.

"Settlement! We have signed a Tabberone Settlement Agreement with MLBP whereby they agree to leave us alone and we agree to drop the lawsuit"
http://www.tabberone.com/Trademarks/MLB/MLB.shtml

Just now checked and found 171 Harry Potter listing under USA Stamps.

Warner brothers hired an outside firm to go through listings or by doing Google searches etc.

Interesting. Then Warner Bros is likely unaware and innocent while the outside firm overstepped its authority or has an employee who doesn't know what they are doing. These outside firms earn a fee from the copyright owner or a percentage of the settlement paid by the offender for every takedown, so they have an incentive to cast the net wide. Depending on how much time you want to spend on this, you could consult with counsel about making a counter demand to the outside firm. Enforcement of copyright beyond the allowable bounds of the law can be "copyright misuse," a form of anticompetitive behavior that can be an antitrust violation. Depending on the number and scale of the demands, a class action contingent fee law firm, state attorney general, FTC or DOJ could be interested in this. You'd have to get personalized advice after explaining all the facts to someone experienced in competitive behavior claims on behalf of consumers.





This post comprises generalized bloviation. If this post was specific legal advice to you, it would be followed by a bill.

Interesting thread & appreciate the info. We had a similar thing happen last year on Etsy with a Dutch poster stamp. We did send an email to the French firm who initiated the removal, received a form reply - and then decided it wasn't worth the aggravation over a $5 item and moved on. Which is what I suspect most people do.

I sent an email to the complaining party and waiting to hear back. Thanks for the advice.

No need for thanks, as I didn't provide advice, merely musings to the clouds. If you want advice, hire a lawyer.

Stuart,
By chance did you reach a resolution on this matter? We were flagged by Sesame Street for selling the Cookie Monster first day cover. We're not sure if it's because we used "Cookie Monster" in the title. Seems based on the info in the thread we should be able to use whatever images of our FDCs that we took ourselves.

I never heard back from Warner brothers.

Were you able to re-list the item? Ours has been taken down automatically because of the request and we can't re-list it unless, it seems like, we contact the offended party and they dismiss the request. But perhaps we misunderstand.