SHEIN V TEMU – The case of The Strawberry Nightdress

SHEIN have just lost a copyright infringement it lodged against Temu, and of the sample infringements submitted before the court, the most interesting is The case of The Strawberry Nightdress. In short, SHEIN suppliers produce tons of new designs on a regular basis.

They’re produced in small quantities, listed on SHEIN and if they sell then further supplies are manufactured. If they don’t sell they no harm, they’re simply delisted. But what then happens to the remaining stock? In The case of The Strawberry Nightdress, 900 garments were made but SHEIN only sold about 200 of them before delisting the product.

The manufacturer had commissioned a freelance photographer to take product shot, and to dispose of the remaining 700 garments used the same photos. SHEIN didn’t like seeing their product shots on Temu, especially as some for other products had been shot by SHEIN staffers.

So they issued thousands of takedown notices… and as Temu won’t allow a listing without an image each takedown notice effectively torpedoed an entire listing. Importantly in The case of The Strawberry Nightdress the freelance retained ownership of the product shots.

As with all court cases, the ruling was much more nuanced that this short summary of the Strawberry Nightdress photographs, but it does raise interesting questions… do you use the same product shots on multiple sites and when does ownership of the product shot become that of the marketplace, if it ever does?

The ruling effectively said that Temu prohibits the uploading of copywrite material and had not way to verify ownership of the images SHEIN claimed it owned, and so as a platform storing information for a recipient of their service Temu were not liable.

All ecommerce retailers and indeed brands should ascertain who owns their product shots as sooner or later they’re likely to be used on the secondary market. And if you’re using brand images, you can’t assume that the brand actually owns them!