Amazon must face a jury over Merch on Demand — after its system binned a rights holder's notices as "fraudulent"

On 14 October 2026 Judge Douglas R. Cole of the US District Court for the Southern District of Ohio refused to grant Amazon summary judgment on claims that its Merch on Demand service directly and vicariously infringed the copyrights of Weekend Warrior Clothing, a small apparel company. Unless the parties settle, a jury will decide.

The service and the claim

Merch on Demand lets third-party “content creators” upload designs. As the court describes it, Amazon then “generates and displays images of those designs applied to various stock products”, lists them at a price it chooses, identifies itself as the seller, and — when someone orders — collects payment, manufactures and ships the product, and pays the creator a royalty. On the court’s example, a standard US T-shirt sold for $19.99 pays the creator $4.89.

Weekend Warrior, founded in 2018 by brothers Tim and Daniel Whelan, sells humorous apparel under the USA Drinking Team brand on its own website. It says creators uploaded copies of its designs: 48 asserted copyrights, about 560 accused listings, and — from March 2020 to at least February 2025 — “over 20,000 discrete orders”. Rather than pursue the uploaders, it “went hunting for bigger game”, in the court’s words, and sued Amazon directly.

What the court decided

• Direct infringement survives. The court adopted the volitional-conduct requirement, under which a platform that merely stores or transmits user-selected material is generally not a direct infringer. But it held that a jury could find volitional conduct here, at least as to products Amazon actually sold — Amazon generates the images, controls price and terms, is seller of record and manufactures the goods.
• Vicarious infringement survives. Amazon can review listings, remove products and terminate creator accounts, and it takes the payment and remits only a royalty.
• Contributory infringement fails. There was no evidence Amazon encouraged infringement, and Merch on Demand has substantial lawful uses.
• Validity is for the jury. Weekend Warrior’s own motion failed because a genuine dispute remains over whether its copyrights are valid. Claims over two designs were dismissed without prejudice.

One note for anyone reading the PDF: the opinion’s short conclusion says Amazon’s motion is granted on “direct and contributory” infringement. The introduction, the analysis and the court’s docket entry all say direct infringement survives; the conclusion appears to be a drafting slip.

The notices that went into the trash

The part of the opinion brand owners will remember is the account of what happened to Weekend Warrior’s notices of claimed infringement.

The first, in May 2021, came from a support address, was signed “Official USA Support Team” and did not name the company or the brothers. Amazon rejected it as incomplete within minutes. Later, its automated process decided Tim Whelan’s contacts were “fraudulent”, blocklisted his email address, and “sent any ensuing emails directly to the trash”. The court noted there is no appeal for a submitter classified as fraudulent — unlike one classified as “abusive”. Amazon removed his address from the blocklist two weeks after the lawsuit was filed, then put it back from June to November 2024.

The court acknowledged the problem Amazon is trying to solve: bad actors file fake notices against competitors, and Amazon estimates a large share of notices are fraudulent. But it described the response here as “dismal”, and said reviewing reports properly, however resource-intensive, “is the cost of operating a service where anyone can upload designs — a system ripe for infringement”. The same facts kept alive the question of Amazon’s DMCA safe harbour: a reasonable jury could conclude Amazon allowed the notices “to fall into a vacuum and go unheeded”, and so had not reasonably implemented a repeat-infringer policy.

What this means for you

For brand owners and creators, the decision is a reminder that the “we are just an intermediary” position has limits when a platform generates the listing, sets the price, makes the product and takes the money. It does not mean platforms are liable by default — Amazon won on contributory infringement, and a jury still has to find valid copyrights and copying.

The practical lessons are about notices:

• A notice is evidence. Every submission, rejection, silence and repeat listing is part of the record that a court may later weigh. Keep them dated and complete.
• Make the notice impossible to misread. Name the rights holder, the registration, the specific listings and your authority to act. Notices from generic addresses with no identified owner are exactly what fraud filters are built to reject.
• Watch for the silent rejection. If notices stop producing any response, the cause may be a blocklist, not a backlog. Escalate through another channel and document that you did.