This is the judgment in the copyright liability trial between the Claimants (“Shein”) and the Defendant (“Temu”).
Shein claimed that Temu infringed the copyright in its photographs of Shein-branded clothing in relation to a total of 2,559 product listings on Temu’s UK page. The photographs fell into three categories: (1) Photographs taken by photographers employed by Guangzhou Shein, a subsidiary of the First Claimant, and subsequently assigned to Shein; (2) Photographs taken by photographic agencies and subsequently assigned to Shein; and (3) photographs taken by suppliers and subsequently assigned to Shein. The Court had ordered the copyright trial to proceed by a sample of 20 works, split between the three categories. At trial, only 5 of the 20 works remained in issue, of which 4 were employee works and 1 was a supplier work.
At trial, Shein’s ownership of the relevant copyright was challenged only in respect of the remaining supplier work, the Strawberry Nightdress. Bacon J ultimately found that Shein acquired title to the copyright and equitable title to any accrued rights of action and that its claim under said equitable title was not procedurally barred in the circumstances. Title passed from the freelance photographer under an assignment post-dating the taking of the photograph and then under the ongoing Framework Agreement between Shein and the supplier.
Bacon J also rejected Temu’s defence that Shein’s case in respect of the Strawberry Nightdress constituted an abuse of process. Shein did not have a firmly grounded suspicion on specific facts that it did not own title in the photographs of the Strawberry Nightdress.
Shein’s case on infringement at trial proceeded under ss17, 20, and 23 CDPA 1988. As to Shein’s case that Temu authorised infringing acts of reproduction by web users who viewed the photographs, s28A permitted those temporary reproductions because they did not have independent economic significance. In any event, the provision of a retail platform on which infringing images may be uploaded combined with evidence of some infringements on the platform was insufficient to constitute an act of authorisation. As to Shein’s s20 case, Bacon J held that Peterson v Google had been correctly decided, and that liability under s20 for an intermediary requires a deliberate intervention in full knowledge of its consequences, in the sense of requiring an awareness that the specific works at issue are infringing works. Bacon J also dismissed Shein’s secondary infringement claim on the basis that Temu did not have sufficient knowledge that the photographs were infringing articles. In relation to the Strawberry Nightdress, Bacon J further found that the supplier had consented to Temu’s use of the photographs.
Bacon J went on to consider whether the hosting defence would have applied if Temu had been found to have infringed Shein’s copyright. It was held that Temu was an intermediary for the purposes of the hosting defence, that Temu did not have the necessary actual or constructive knowledge to disengage the hosting defence, and that Temu had removed the photographs expeditiously from the Temu UK website.
Accordingly, Shein’s claims of copyright infringement were dismissed.
Temu’s counterclaim under Shein’s cross-undertakings given to secure two preliminary injunctions succeeded. Bacon J held that Shein’s notifications under the orders were a dominant and effective cause of Temu’s losses occasioned by the removal of the listings from the Temu UK website.
Benet Brandreth KC and Mitchell Beebe appeared for the Claimants, instructed by Freshfields LLP.
[2026] EWHC 2165 (Ch)
