Pinterest Copyright Questions and Concerns

“The last few months have been a whirlwind here at Pinterest. It’s hard to explain how it feels to go from a small group of people working on a virtually unknown website, to a slightly bigger team of people working on a service that millions of people use every day.” (Pinterest spokesperson to CBS’s WCCO)

Isn’t that statement the truth!  In a busy, busy world who doesn’t love a fast and easy way to share ideas, recipes, fashion and more…hello Pinterest!  It sparked our interest, 12 million of us have flocked to it, and for many of us it became an immediate addiction.  And then the “fine print” was made bold to us:

 “You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Site, Application and Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available through the Site, Application and Services or you have all rights, licenses, consents and releases that are necessary to grant to Cold Brew Labs the rights in such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or Cold Brew Labs’ use of the Member Content (or any portion thereof) on, through or by means of the Site, Application and the Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.”  (From Pinterest’s Terms of Service).

Nobody likes reading the fine print, but interpreting this was scary.  Could we possibly be violating people’s Copyrights?   The super paranoid users took down their boards that had other people’s photos on them.  Others simply stopped re-pinning certain pictures or items.  As a retail business owner I am thrilled at the idea of others sharing linked pictures of my website items!  Advertising for a website can be expensive and anytime we online retailers can get a positive Review or Recommendation of a product, we are thrilled.  I consider Pinterest Pins to be a Positive thing.  For those sites not wanting to share I highly recommend they add the opt-out code to their site – it prevents content from being shared on Pinterest.

Recently, Pinterest addressed the copyright concerns: “Pinterest is a platform for people to share their interests through collections of images, videos, commentary and links they can share with friends. The Digital Millennium Copyright Act (DMCA) provides safe harbors for exactly this type of platform. We are committed to efficiently responding to alleged copyright infringements. We are regularly improving our process internally with the help of lawyers who are experts in the field of copyright.”

I gathered some questions from Pinterest users, and addressed them with local business attorney, Kelcey Patrick-Ferree*

1) What kinds of materials are protected by copyright? Is it necessary to have a copyright notice on something to receive copyright protection?

Copyright law protects any “creative work fixed in a tangible medium of expression.” So for something to be protected it has to be creative (not merely instructions, not merely factual, but something new from a spark of inspiration) and fixed (copyright does not protect a thought in your head or an unrecorded improvisation session) in a tangible medium (and 1’s and 0’s on a hard drive count). Courts have ruled that most photographs are protected because there are certain creative elements involved in taking most photographs: composition, lighting, and so on. (Note that sometimes the subject of a photograph has separate copyright protection, for example if the photograph is of a painting or sculpture.) If the photographer did anything during the development process with a film photograph, or with a photo editing program with a digital photograph, those elements are also protected. But the creative elements are the only protected portion of a photograph. If you want to take a photograph of the same subject using your own creative choices of lighting, composition, and so on, you are perfectly free to do so.

Copyright protection exists at the moment the creative work becomes fixed in a tangible medium of expression. In the case of a photograph, it exists at the moment the photograph becomes fixed on a disk or film. It is not necessary to put a copyright notice on a work to receive copyright protection, though it does make it significantly easier for anyone who would like permission to use the work to find the owner. Likewise, you should assume a photograph or other creative work is copyrighted unless you have been specifically told otherwise.

Copyright registration can add an extra layer of protection for a creative work; if a work is part of the Copyright Office’s database of registered works, people who want permission to use the work can search for it in the database. In addition, a registered work is eligible for statutory damages if there is infringement–that is, the owner does not need to prove that any financial harm arose from the infringement in order to recover money from the infringer.

2) What does a website owner do to show that the site’s photographs can be pinned on Pinterest?

The best indicator is if the website has a “Pin It!” button or other invitation to add content to Pinterest. It is not safe to assume that a Facebook or Twitter Share button indicates Pinterest-friendliness; Twitter did not include photos until recently, and it includes only a link to the original site when a user shares things on Twitter. Sharing something on Facebook will add, at most, a thumbnail. Thumbnail images are generally considered to be “fair use.” Pinterest adds a full-size copy of an image, and that is very different from either Facebook or Twitter.

There are other ways to determine whether you have permission to share a photograph or other creative work. Some sites specifically ask that you share something if you like it (reblog, share, pass it on, etc.). Some sites use a Creative Commons copyright license (you can search for Creative Commons-licensed works here: http://search.creativecommons.org/). Some sites have language in their Terms of Use (the link is usually at the bottom of the page) that make it permissible to share content. You will want to look for the terms about intellectual property and linking. You can try contacting the site owner directly to ask permission. You can also try following brands that you like on Pinterest. If someone pins something that they own (or had permission to pin), you are free to re-pin it.

If you are wondering whether you can re-pin something that was not pinned by the owner of the copyright, things get murkier. The site’s updated Terms of Service, which take effect on April 6, 2012, clarify that users are responsible for making sure that their pins and re-pins are legitimate. You have no way to know whether someone who pinned something asked for permission directly from the copyright owner, but you can go back to the original site and see if the site invites sharing.

3) How can one tell whether a website owner owns the copyright in a photograph?

This one is tricky. It is not always possible to tell whether someone owns a photograph posted to a website, or has the necessary permissions to do so. Look for clues like consistency of style, the type of site, and so on. If you want to be very safe, only pin content from large companies, which are more likely to make sure that they own or have a proper license to what they post, and other trusted sources, such as websites of people you know personally.

It is also noteworthy that the U.S. federal government cannot own a U.S. copyright. Material that appears on federal government websites generally will say whether it is permissible to use it or not–for example, the Smithsonian online archive will tell you whom to contact to get permission to use photos if necessary. You can also find databases of works that have fallen into the public domain because they are too old to be subject to copyright, which lasts for a limited (though long) period of time.

4) What are the defenses to copyright infringement in cases where there was no permission?

There are several defenses to copyright infringement, but very few apply to cases of actual copying, which is what Pinterest users do. The main defense is fair use, which is defined in Section 107 of the Copyright Act. Fair use allows a book critic to quote a portion of a book without being sued for infringement. It means use for certain purposes, including “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” To decide whether a particular use is fair use, a court must consider: 1) the purpose and character of the use; 2) the nature of the copyrighted work; 3) how much of the work was used; and 4) the effect of the use upon the potential market for or value of the copyrighted work.

In some cases, it is difficult to imagine how pinning a photograph on Pinterest could adversely affect its market. For example, a photograph of a product on a retailer’s website is copyrighted, but the act of pinning does not hurt the market for the photo; the retailer purchased it before placing it on the website. In addition, a retailer is unlikely to be upset about someone pinning a photo of its products and driving more traffic to the retail website. Likewise, pinning a photo in order to comment on or criticize either the photo itself or the product would likely fall under fair use. (Pinning a photo with a negative and untrue comment, on the other hand, could get a user into trouble for unrelated reasons like defamation.)

Conversely, pinning a photographer’s work has definite potential for adversely affecting the market for the photo. If you pin family photographs taken in a studio (and you do not own the copyright in those photographs, only the physical photos you have purchased), does Grandma still have an incentive to buy her own copies if she can just look at them on Pinterest? If you pin a beautiful landscape photograph, could that reduce the incentive to purchase a copy to place in a person’s home or office?

I’m sure we will continue to learn more as the site matures, and the interest in Pinterest continues to expand.

*Kelcey Patrick-Ferree is a business attorney focused on internet and social media law. She is active on several social media sites, including Pinterest. You can learn more about her and her practice at www.businesslawmn.com.

Disclaimer: “This post is offered for informational purposes only. It is not and should not be relied upon as legal advice. If you need legal advice on this topic, please consult with an attorney regarding your own situation.”