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Pinterest and Copyright: Lessons in Life and Law

by Kerry O'Shea Gorgone  |  
March 26, 2012
  |  21,073 views

In this article, you'll learn...

  • How Pinterest shifts blame to users for violating copyright laws
  • Why you should or shouldn't take action if your content is shared via Pinterest

Law, as learned for the bar exam, is different from law, as it affects everyday life. The current hubbub over the terms of service of Pinterest, a popular image-driven social network, provides a perfect "fact pattern" to illustrate the difference.

First, the creator of an original work (or the person who commissioned the work, if it's a "work for hire") automatically owns copyright in it, whether or not she registers the work with the US Copyright Office. Registering your work, of course, has its benefits, some of which are especially significant in the Pinterest example... but we'll get to that in a moment.

Copyright comprises several exclusive rights and powers pertaining to creative work. Often referred to as a "bundle of rights," copyright means the owner has exclusive rights to do the following:

  1. Reproduce the copyrighted work (make copies).
  2. Prepare derivative works.
  3. Distribute copies to the public.
  4. Perform certain kinds of works publicly (e.g., plays, dance routines, movies).
  5. Display the copyrighted work publicly (e.g., sculptures, paintings).
  6. Perform the copyrighted work publicly by means of a digital audio transmission (for sound recordings).

Source: 17 U.S.C., Ch. 1, § 106. (PDF)

Copyright inheres the moment I "fix my original work" in a "tangible medium," which might mean doodling my portrait on a napkin, taking a photograph, or typing my novel into my laptop. Electronic files are "fixed" for that purpose. Source: 17 U.S.C., Ch. 1, § 102. (PDF)


Here's where things get 'Pinteresting'

Let's say, I'm an entrepreneur who sells widgets. To market those widgets more effectively, I take attractive photos of them and post them on my website. A widget enthusiast who is unaffiliated with my business starts a pin board on Pinterest and "pins" one of the photos from my site.

For this example, let's assume that the enthusiast "pins" the image directly from my site, which means that the "pin" will link to the page that displays that photo on my site.


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Kerry O'Shea Gorgone is director of product strategy, training, at MarketingProfs. She's also a speaker, writer, attorney, and educator. She hosts and produces the weekly Marketing Smarts podcast. To contact Kerry about being a guest on Marketing Smarts, send her an email. You can also find her on Twitter (@KerryGorgone) and her personal blog.

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  • by Christine K. Mon Mar 26, 2012 via web

    Great article. I do have a question about copyright law as it relates to Pinterest. If I, as a Pinterest user, pin a food photograph linking directly to a recipe I want to make and *comment* on it (e.g., "Beautiful photo of a roast I want to make this week!"), wouldn't I be covered under Section 107 - Fair Use if the photographer tried to sue?

  • by Megan C. Mon Mar 26, 2012 via web

    I cancelled my pinterest account until they change their terms of agreement.

  • by Kerry O'Shea Gorgone Mon Mar 26, 2012 via web

    Hi Christine,
    The food photo is copyrighted, as is the recipe itself (though you're not posting the recipe -- just linking to it). Fair Use is a defense, so you don't get to assert it until you've been sued. Some people say it's a "shield" as opposed to a "sword." It is also heavily fact driven, and whether you profit from use of the copyrighted material is only one consideration. Bottom line is that you can't be protected in advance from suit based on "fair use," and litigating can be an expensive proposition, so there's definitely a chilling effect on expression that happens.

    The likelihood of a suit is remote, in my opinion, because you are an individual as opposed to a business, though the owner might ask you to take down the photo. In my view, that's also unlikely, because you're driving traffic to their site, but you never know: some people can be overzealous.

  • by Jeanne Mayeux Mon Mar 26, 2012 via web

    Nice article Kerry. This made me think, what if you post some pics that are not yours as an individual or even as a student under fair use and then 10 years later you own a lucrative business. Can your business be sued for posting those pics? What if you can't find them but the copyright owner does find the infringing pics?

  • by Margie Sutherland Mon Mar 26, 2012 via web

    In your example you're assuming that the entrepreneur who sells widgets copyrighted his / her photos. The individual who sells the widgets may have a patent for the widget but not necessarily the ownership of the photo that was taken of the widget. It all depends on what the entrepreneur actually owns.

    And in terms of pinners taking and distributing that alleged infringed photo, the liability isn't completely on the pinner. Pinterest has not done enough to protect themselves by amending their Terms of Service to enhance indemnification. Pinterest owns the technology that holds or maintains the public viewing of the alleged infringement, and to boot automatically gets a license to use that infringement by the sheer nature of their TOS.

    In addition, if any lawyer chooses to take on a copyright lawsuit based on a potential pin infringement, they will go after what will be the most lucrative to themselves and their client. That will be Pinterest in most cases - they have the funding and they are rapidly growing.

    Pinterest is almost, in and of itself, a virtual museum of sorts. Think of a reproduction of a famous modern painting, for example, not in the Louvre but in another famous museum. Who would the artist sue? The place that holds the painting, the person who tipped them off that this replica was available, or the person who sold them the replica?

    Bottom line is pin wisely, use watermarks when necessary, but Pinterest aka Cold Brew Labs is not off the hook for potential IP infringements. By its sheer nature and the medium they provide it is simply not possible for them to be fully indemnified by the pinner.

  • by Brittany L. Mon Mar 26, 2012 via web

    Great article. I think most people would love to have their content go viral - as with any online medium all users need to be respectful and always share the original source!

  • by Heather K. Mon Mar 26, 2012 via web

    Thanks for the insights Kerry - this was a great article. I know a lot of individuals and companies are looking for answers regarding use of Pinterest.

  • by Phil Barnhart Mon Mar 26, 2012 via web

    The "no-pin" meta tag Pinterest is relying on just doesn't cut it. Rather, Pinterest, Facebook, Tumblr et al should designate some simple tagging structure similar to robots meta and robots.txt - for example, calling it "do-share." If I love the publicity, I can add a "do-share /" to my robots.txt file and be done. Or "do-share /public/iimages" would allow just the images in that directory to be pinned or tumbled. In addition, add a meta tag to the robots meta - "do-share." And finally, add to the x-robots header standard to recognize "do-share" response headers.

    Don't take my stuff unless I say its okay.

  • by Alison Gilbert Sat Mar 31, 2012 via web

    Dear Ingrid,
    I want to thank you for the information that your blog post on Pinterest provided. It was so helpful that I used it as part of my documentation material on a post I published called, digitalbrandmarketing.com/2012/03/31/pinterest-part-three-the-perplexed-pinner/

    I discuss some of the current concerns about copyright law infringement and sponsorship of popular pinners as well as those earning straight income from this platform. I welcome you feedback, comments, discussion and suggestions.

    Sincerely yours,
    Alison Gilbert . . . in hot pursuit of blogging self-pinterest!

  • by Alison Gilbert Sat Mar 31, 2012 via web

    Sorry for the mistake Kerry. I have been on the computer too many hours and I mistakenly wrote 'Ingrid' instead of 'Kerry'. My apologies.

  • by Chris Mon Apr 2, 2012 via web

    Excellent article.

  • by Alison Gilbert Tue Apr 3, 2012 via web

    Margie Sutherland is right on the mark in my view. The whole copyright issue with Pinterest is a boondoggle and it appears that the Pinterest founders have not done their home work. Has anyone heard that they are going public? It was on the TV news but one never knows about the reliability of certain TV sources. Any info would be greatly appreciated from Sean or anyone reading this with a documented source.
    Thank you.

  • by Wade Tue Apr 3, 2012 via web

    In this litigious society, there will certainly be a few that figure out how to make money suing people. Anywhere there's a hole in the law, there's an attorney ready to manipulate it. Pinner beware.

  • by Alison Gilbert Tue Apr 3, 2012 via web

    Wade,
    I agree with you as well as Margie Sutherland. I definitely think this is new grass for the litigators to feed on. I am curious but unfamiliar with what Christine K. (first comment) was referring to when she mentioned 'Section 107 - Fair Use". Does anyone know what that is?

    There is no doubt that the issue of copyright violation is going to stir up quite a bit of discussion in the legal community. It has already been an issue of concern to those of us who pin and have some consciousness about the dangers of improper 'Pin Etiquette'

  • by Phil Barnhart Tue Apr 3, 2012 via web

    Christine's mention of "Fair Use" refers to the section of US Copyright law that provides exceptions copyright infringement. It is the most misused and misunderstood section of the copyright law. It protects (some) purely academic use, criticism of the actual work in question, parody, minor reproductions by teachers or students, and incidental inclusion in a news report or news video. It most definitely does NOT cover use in Pinterest. Wikipedia has a fairly substantial and accurate explanation of this.

  • by Alison Gilbert Wed Apr 4, 2012 via web

    Thanks Phil for your comment and thorough explanation of "Fair Use". What are you feelings about what is going on with Pinterest and copyright law, their Terms of Service and the vulnerability that pinners have?

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