Is it illegal to auction a picture of an item on ebay as long as it is properly stated that the buyer will only receive a picture and not the actual item?

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Is it illegal to auction a picture of an item on ebay as long as it is properly stated that the buyer will only receive a picture and not the actual item?

Asked on June 14, 2012 under Business Law, Massachusetts

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

If the thing you are selling a picture of is itself copyrighted or trademarked, then no, you could not do this: copyright includes the ability to prevent "reproduction" (such as photgraphic reproduction) or "derivative" works (like a new photograph derived from the existing work), while trademark prevents others from using the mark or its image for their benefit.

So, for example: you could sell a picture of a living horse, which you took with your own camera--living animals may not be trademarked or copyrighted. But you could not sell a picture of a someone else's horse painting, drawing, sculpture, photograph, or model, unless the thing you are taking a picture of is in the public domain (e.g. sufficiently old that any copyright has lapsed and where no one has obtained or maintained a trademark in it).


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