The Initial Problem
In early 2025, an Amazon seller was hit with a series of DMCA takedown notices targeting several top-performing ASINs. The claims alleged that the seller’s product images and copy infringed another party’s copyright. Amazon removed the listings, leaving inventory stranded in FBA and cutting off a major revenue stream during peak sales periods.
Each product’s assets were developed in-house: original photography, custom listing graphics, and proprietary copy. Despite this, automated or repeat notices kept arriving, suppressing the exact same listings again and again.
The Legal Standards: Copyright vs. Patent Confusion
Copyright protects expression—not ideas, functions, or the basic design of useful articles. U.S. courts distinguish between similarity of ideas and similarity of protected expression. For useful articles (17 U.S.C. §101), only separable, independent design elements may be protected.
- Extrinsic test: Objective comparison of specific elements (ideas vs. expression).
- Intrinsic test: The ordinary observer’s “total concept and feel.”
As classic cases like Herbert Rosenthal Jewelry Corp. v. Kalpakian show, copyright cannot monopolize a product “idea” (e.g., a jeweled bee); only the original artistic expression is protectable. In this dispute, the notices tried to use copyright to police product design—a patent-like claim that copyright does not grant.
Counter-Notices and Amazon’s Process
Under the DMCA (17 U.S.C. §512), a seller can submit a counter-notice asserting the material is non-infringing. Unless the complainant files a lawsuit within 10–14 days, Amazon should restore the content. In this case, reinstatements occurred after each counter-notice—only to be followed by new, duplicative claims targeting the same ASINs. That pattern is a hallmark of DMCA abuse and violates Amazon’s Seller Code of Conduct.
The Damages Caused by False Takedowns
- Suppression of high-velocity ASINs during peak periods
- Stranded FBA inventory and extra removal/restocking costs
- Wasted ad spend on listings that were offline
- Added storage fees and lost Buy Box momentum
- Account Health deterioration and increased suspension risk
The seller incurred thousands in direct costs and long-term ranking damage from repeated, meritless takedowns.
Why False DMCA Notices Are Illegal
“Any person who knowingly materially misrepresents that material or activity is infringing… shall be liable for any damages, including costs and attorneys’ fees.” — 17 U.S.C. §512(f)
Knowingly false notices can expose the filer to damages and fees under federal law, and repeated weaponization of notices can breach Amazon’s policies against harming competitors.
Our Strategy and Actions
- Evidence Dossier: Original RAW images, design files, work-for-hire agreements, and assignment/ownership documents.
- Legal Review: Identified defects in notices; explained non-copyrightable elements and separability issues.
- Counter-Notices: Filed §512(g) counter-notices with sworn statements and identity/contact details required by statute.
- Amazon Escalation: Documented repeat abuse; sent targeted letters to Amazon Legal and Policy teams.
- Compliance Program: Implemented SOPs for IP asset management and rapid response for future events.
The Outcome
Listings were restored, Account Health stabilized, and a paper trail established for further remedies. The seller adopted a preventative IP playbook to deter future abuse and accelerate any needed reinstatements.
Lessons for Amazon Sellers
- Own & organize assets: Keep originals, contracts, and licenses for images, graphics, and copy.
- Respond fast: File counter-notices immediately when a takedown is false.
- Escalate patterns: Repeated claims on the same content warrant legal escalation.
- Know the limits: Copyright ≠ patent; ideas and useful-article designs are not protected as such.
- Use counsel: Attorney-supervised filings and escalations carry more weight with Amazon.
Related Resources
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