Can Temu Really Hide Behind Its Sellers When It Comes to Copyright?

Back in 2023, SHEIN issued proceedings against Temu, still a newcomer to the UK market at the time, alleging that Temu had infringed its copyright by using SHEIN’s product photographs on Temu listings. Temu denied it, and hit back with a competition law counterclaim, alleging SHEIN was deliberately attacking it to protect its market share. That side of the dispute has been sent off to the Competition Appeal Tribunal, due to be heard in March 2027. Judgment on the copyright claim, the more interesting bit for IP lawyers, landed last week in Roadget Business PTE Ltd and another v Whaleco UK Ltd.

SHEIN’s complaint covered 2,559 product listings, with photos taken by its own staff, by suppliers, and by agencies. Temu had already pulled thousands of listings under two interim injunctions. To keep the trial manageable, the court whittled things down to a sample of 20 images, and by the time of trial that had shrunk further to just five, four SHEIN staff photos and one supplier photo.

The backdrop matters here. SHEIN pushes a lot of commercial risk onto its suppliers, who have to produce far more stock than SHEIN typically orders. When SHEIN doesn’t reorder, suppliers are left sitting on surplus goods, and some offload it via Temu, often reusing the original SHEIN listing photos. SHEIN says Temu is far more hands on than a simple marketplace, controlling pricing, promotions and listings, and offering image editing, delivery and warehousing. Temu says its sellers are independent businesses free to sell wherever they like.

On ownership, the case is a lesson in how messy chain of title can get. The one supplier photo in the sample, of a nightdress, was actually taken by a freelance photographer who never signed a written assignment and didn’t know how her images would be used. The court found the minimum rights had passed down the chain, essentially just a non-exclusive licence to use the images, not a right to sue over them. SHEIN later tried to patch this with fresh written assignments once litigation was underway, and after a deep dive into Chinese contract law, the judge accepted these did eventually get the rights to SHEIN, but only barely.

On infringement, SHEIN lost across the board. Its reproduction claim failed because Temu’s servers sit outside the UK, so SHEIN had to argue Temu had authorised users to reproduce the images in their browsers. The judge said no, merely running the website and having standard licence wording in its terms wasn’t enough to count as encouraging or sanctioning infringement. The temporary copies made in a user’s browser were also found to fall within the statutory exception for temporary copies, since the user gains no independent economic benefit from viewing the image.

The communication to the public claim failed too. Even though the images had already been made public on SHEIN’s own site, the judge followed the CJEU’s Peterson v Google decision, holding that a platform doesn’t communicate content to a new public unless it does more than simply making the platform available. SHEIN argued that case was wrongly decided, but the judge preferred consistency with existing case law over departing from it.

Perhaps the most interesting part of the judgment is the hosting defence, under regulation 19 of the E-Commerce Regulations. This defence has been getting harder for platforms to rely on as they take a more active role in what happens on their sites, as shown in the Samsung watch faces case. Here, the judge said it comes down to the platform’s role in relation to the specific content at issue, not its business model generally. On the evidence, Temu succeeded. SHEIN’s claims that Temu actively controls sellers and sets prices relied mostly on blog posts, which the judge treated as weak evidence. Given SHEIN has plenty of suppliers who also sell on Temu, it’s a bit surprising it didn’t produce stronger proof if the allegations were true.

Having lost on infringement, and having dropped three quarters of its sample claims along the way, SHEIN was found liable under the cross-undertaking it gave when it obtained its interim injunctions. The court also accepted it was reasonable for Temu to pull entire listings, not just the disputed images, since it wasn’t practical to leave listings without pictures.

The takeaway for practitioners is obvious: sort out your chain of title before you sue, not during trial. But the bigger issue longer term is probably the hosting defence itself. As platforms get more algorithmic, more hands-on with sellers, and more aggressive with deals and retargeting, they’re edging closer to losing that protection. The EU has tried to deal with this through the Digital Services Act. The UK, for now, hasn’t.