There’s been lots of buzz lately over Handmade at Amazon. And almost every Facebook group I’m a part of has a thread about this new service. These threads cover the potential plusses and minuses, but also include a couple myths.
I don’t see my role as helping you decide if something is a good or bad business decision. I see my role as giving you the tools and resources you need to understand the legal side of things. I want you to be able to make an educated decision.
I assumed that Amazon would lump Handmade at Amazon under their existing seller’s terms of service. This terms of service is something I’ve read dozens of times and so I didn’t bother to re-read it.
I couldn’t see how it would impact the makers that chose to sell on their platform any different than Etsy.
But then the service launched. And I got told by makers time and time again that the Amazon policy was stealing their copyright. And that Etsy’s policy was so much better. So I pulled back out both policies and compared them side-by-side.
What is the difference between Handmade at Amazon terms of service and Etsy’s?
What you are agreeing to by using both services
To make it a little easier to find the legalese in the terms of service, I’ve included the (legalese).
What kind of license you are giving them
You are giving the service a non-exclusive license to use anything you upload onto their site.
They clarify that the kind of license you are giving them:
- does not require them to pay you a royalty for use of your content (royalty-free)
- lasts forever (perpetual)
- cannot be canceled (irrevocable)
- allows them to grant these same license rights to someone else (sublicensable)
- covers the whole world (world-wide/throughout the world)
What you are giving them permission to do
Now that they’ve told you what kind of license you are giving them. They then turn to what you are giving them permission to do.
Both services have permission to:
- use
- display
- duplicate
- modify
- change
- distribute
- convert your content to any format they choose
I’m sure you are thinking, “they don’t need all those rights!”
But here is why they are asking for them.
- They need the right to use and display your content so that they can show it to my computer when I navigate to the website.
- They need the right to duplicate because when I load your image onto my computer I am making a temporary copy of it.
- They need the ability to modify and change your content because of the different aspect ratios of their apps and websites. They also need the ability to translate your content into other languages so that your shop is available to all buyers.
- They need the right to distribute your content so they can include it in their newsletters, on the homepage, or help promote your products.
- Finally, the lawyers want them to be able to convert it to any format they choose. So if they decide to print postcards or we start having computers in our brains they don’t have to come back and get your permission to use your work there.
What you are promising them
Next we move onto what both services make you promise them.
You promise that:
- you own the content you are uploading or have permission from the copyright owner to upload it
- no one will claim the content you uploaded is their content or that it hurts them or their business
- if the service gets sued, you’ll pay their legal bills (indemnify)
- that the service is not financially responsible for any content you upload (no liability)
So why do they need you to make these promises?
Let’s pretend you hire a graphic designer to create your logo and website. She creates something you love. A couple weeks later, your shiny new website goes live. Then a couple months after the launch of your website you get a nasty lawyer letter. And this letter claims that your designer stole the logo and website.
Who should be required to pay the legal bills? You? The designer?
I think most of us would say it’s the designer’s responsibility. The designer created the design. You had no knowledge that they stole it, so why should you pay out of pocket for it?
The same is true for these services. They didn’t create the content, so they require you to promise that it’s yours. And require you to back up that promise by putting your money where your mouth is. Or in other words, if you don’t keep your promise, then you have to pay the legal bills.
The bottom line
The bottom line is both of these services are asking for pretty much the exact same rights. Etsy’s are just written with a little less legalese than the Handmade at Amazon ones.
One Handmade at Amazon terms of service difference
However, there is one important difference with the Handmade at Amazon terms of service. And that difference is how Amazon deals with your content once you choose to upload it to their service.
An Amazon detail page
When you create a product page, you create what Amazon calls a detail page. This page is permanently added to the Amazon catalog. And this page will remain even if you no longer are selling your products there (or if you sell out of your product).
Additionally, under the Amazon seller’s terms of service:
- you give Amazon and its affiliates (including other sellers) a license to use your content within the Amazon service
- other Amazon sellers can list the same product against the detail page you created
This mean that if you upload an image to Amazon, then you give permission for it to be used by Amazon and other sellers. And you cannot use the DMCA takedown notice procedures to get the image off that seller’s page.
For example, say you list a product on Amazon Handmade. A few weeks later one of your wholesalers takes your photo from your listing and posts it on their listing. Because you have posted the photograph to Amazon, you cannot get the image taken down.
Or your wholesaler might list herself as an alternative seller for your product. And as long as they are selling the exact same product as your listing, you cannot stop this. The only way you can stop it is if they are selling something that isn’t an exact match.
Ultimately, it’s your own decision if selling on this platform is good for your business. But don’t claim that you aren’t selling on Handmade at Amazon because the terms of service are so much worse than Etsy’s.
Just don’t claim that you aren’t selling on Handmade at Amazon because the terms of service are so much worse than Etsy’s.
Will you do me a favor? Will help me dispel the stories about these terms of service by sharing this post with your community?
Worried about the Handmade at Amazon terms of service? @kiffaniestahle breaks down what they mean.Click To Tweet
Thanks so much for “translating” each entity’s ToS. Very helpful and I will be tweeting-
Thanks so much Tammy! I’m glad that it helped you understand the legal jargon!
Thanks, Kiffanie! The back and forth about this topic has been confusing and frustrating, thank you for clearing it up in a simple, understandable way!
Yes Kayla, there’s been lots of doom and gloom on a couple Facebook groups I’m a part of. So I’m happy that it helped you clear up any confusion!
Great post! Thanks for breaking it down, I figured there would be nuanced differences but it’s great to have someone better at reading TOS’ opinion!
Yes Terri, in this case understanding the differences requires a nerdy love of legalese and contracts! Which luckily I have.
Thank you this great! I still have one clarifying question. When you say “The only way you can stop it is if they are selling something that isn’t an exact match.” would that mean if a company tried knocking off my product I could get them to take it down because it’s not actually the same mug? I’m just trying to protect myself from getting ripped off still. It’s really interesting to point out that your wholesalers could be your competition on Amazon! Amazon really is a whole new beast to figure out!
Kaitlin, Amazon would help you stop them from linking to your product detail page. They’ll help you do that because what they are listing is not an exact match of the item listed on your detail page. Amazon wouldn’t help you stop them from creating (or posting) the mug on their own detail page. If they create a knock off mug, you (and probably your attorney) will have to contact them directly to stop. Does that make sense?
Yes it does thank you!
Thank you for taking the time to dissect the policies of these 2 large small business selling platforms. Businesses get a much higher traffic rate by being part of these websites which draw traffic that surpasses what an individual site would receive. Ideally some businesses move into a position where they maintain a prominent standing in searches and selling!!!
Kathy: While these platforms can be great for small creative businesses, they also can be too heavily relied upon. Arianne Foulks wrote a really great post on the Aeolidia blog about how you can use these platforms but still have a safety net.
I’m confused why you would mention wholesalers in an article about H@A?
What does handmade mean?
All products available in your Handmade at Amazon store must be made entirely by hand, hand-altered, or hand assembled (not from a kit). Products must be handmade by you (the artisan), by one of your employees (if your company has 20 or fewer employees), or a member of your collective with less than 100 people. Mass-produced products or products handmade by a different artisan are not eligible to sell in Handmade. (Source: http://services.amazon.com/handmade/handmade.htm)
While wholesalers might not be able to list their products in the Handmade section, they can list items in other sections of Amazon. As such, the issues with them using the photographs you post on your Handmade listing and using them to sell your product in another section could come into play if one of your wholesalers chose to do this.
Am I blind, or is there a link somewhere to the Amazon Terms of? I’m curious to find the wordage defining “Your Content”.
The link that I was using now is re-directing! Sorry about that. I’ve updated it in the post, but you can also see it here.
This is very helpful, thanks. I thought the TOS seemed similar, but your point about the one difference seems worrisome. You said, “…A few weeks later one of your wholesalers takes your photo from your listing and posts it on their listing. ” As a photographer, selling my prints that I print myself, is it even possible for another Amazon seller to take my image I upload and sell it? Or am I more at risk (on Amazon or Etsy) because my product is what you see and not pottery for instance?
Laura: They are only getting a license to use the photographs that you upload within the Amazon site. There’s not any license to go out and print them or sell digital copies of it.
You can do your part in decreasing the likelihood that this will happen by keeping the size of the image on the smaller end and the dpi low. But yes, photographers and painters run a bigger risk of this happening than 3-D artists.
Kiffanie, thank you so much for taking the time to help us all with this. Its very kind of you!
I am still not getting the “one important difference” so I hope you don’t mind me asking more questions!
Lets say I am a wood carver and I upload a photo of a carving I made.
That means that I give permission to Amazon and other sellers to use my photo, correct?
Then you write “A few weeks later one of your wholesalers takes your photo from your listing and posts it on their listing.”
I am confused about “your” wholesaler.
When one opens a shop on Amazon ones gets wholesalers? Why is it “my” wholesaler?
And then you write “Or your wholesaler might list herself as an alternative seller for your product. And as long as they are selling the exact same product as your listing, you cannot stop this. “
So let’s say I have carved a dog and I place a photo of it. The wholesaler has permission to take my photo, put it on his/hers list, carve exactly the same dog and sell it? Isn’t this a violation of copyright?
So basically this “one important difference” says that we give permission to Amazon and any other seller on there to copy and sell our stuff?
And call me naïve but if a wholesaler sees my carved dog and wants to copy it, why does he also have to use “my” photo of it?
What am I not getting here?
I was also wondering if by any chance you knew if on Amazon one has to be legal in order to join them? I am googling the question and getting nothing!
Thank you very much in advance!
Nikolas
Nikolas:
Sorry for the confusion! That example was meant to demonstrate how someone who has an existing wholesale account might be impacted by this provision. If you don’t have wholesale accounts, then this wouldn’t apply to you. I’m not sure if (or how) this provision will impact small creative businesses, but I know that it’s been a huge problem for some mid-sized companies I work with.
Uploading photos gives permission to anyone within the Amazon platform to use the photo to list the EXACT same product that you produce. I buy the carved dog from you and then rather than taking my own photos, use your photo to sell the carved dog I bought from you to another person. Uploading photos does not give them any license or permission to copy the product within the photo. You are correct that is still copyright infringement.
And I don’t know what checks Amazon does to learn if your business is legal, but I assume they make you warrant as part of the terms of service that your business has all the required legal paperwork in order.
Thank you for posting this! I was recently accepted to sell on Amazon Handmade and became so intimidated with their contract, I didn’t move forward. I genuinely thought that they were asking my permission to duplicate or modify my work (not content). Now that I know it pertains to images or product description, I feel more comfortable moving forward.
No problem Carla! I’m so glad it relieved your concerns and helped you make a decision about posting on their platform!