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Pinterest and Copyright: Lessons in Life and Law

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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.

The pinning process involves making a copy of my photo; Pinterest generates a smaller version of images, and uploads them to pin boards on that site. Pursuant to the copyright law referenced earlier in this article, doing so constitutes "reproducing the copyrighted work," which would be in violation of my exclusive right to do so as the copyright owner. Ergo, Pinterest and the widget enthusiast would be liable for copyright infringement.

At least, that would be the case if Pinterest's Terms of Use did not shift the liability completely onto the user/enthusiast/pinner. But since the agreement shifts liability to the user, the pinner has assumed complete responsibility for the violation of copyright law. As copyright owner, I could sue that pinner for infringement.

Here is where registration with the US Copyright Office becomes important. Had I registered my copyrighted work (my widget photo) with the US Copyright Office prior to the "pinfringement," I could bring suit against the Pinterest user and seek "statutory damages" in the event I couldn't prove exactly how much money her unsanctioned reproduction of my work cost me. I could also seek attorney's fees, but only if I had registered the photo as a copyrighted work before bringing suit. Source: 17 U.S.C. Ch. 4, §§ 411 and 412. (PDF)

Should I sue?

And now, for the distinction between law on the bar exam and law in real life: Why would I ever sue in this case?

If I were to sue, as a business owner I would alienate a brand evangelist, as well as countless others who will learn about my lawsuit and "flame" me online. I would also be wasting the opportunity to harness the power of viral marketing without paying a cent for the privilege.

Make no mistake, Pinterest has a huge and growing following (11.7 million users), and repins currently make up 80% of pinning activity. In other words, my widget photo might well be pinned and repinned dozens of times (if not more), with a link leading back to my website where I sell widgets.

Have I really been damaged because someone reproduced my copyrighted photo in this instance? Assuming I desire website traffic and sales, the answer is clearly no.

Now, let's change the facts and assume that the Pinterest user does not link back to my site, but rather downloads my photo, uploads it directly to the online pin board, and makes no mention of me.

In that instance, I'm not reaping the benefits of free viral marketing, but I'm still not really being damaged, because I'm not in the business of selling photos. I'm in the business of selling widgets.

Even under such circumstances, a lawsuit is a costly and unattractive option. A request that the user take down the photo, or, better yet, link to my website, presents a better option... even in light of the copyright infringement. If this option sounds time-consuming for a busy entrepreneur ... that's because it is.

The better approach is to watermark my photos before uploading them to my widget site. Then, my trademark, my brand name, and maybe even my URL would be prominently displayed in the photo, allowing me to reclaim at least some of the viral marketing appeal Pinterest offers. That would be the case even if someone were to create her own pin rather than linking directly from my site.

* * *

So, although pinning might technically violate copyright law, you probably shouldn't pursue legal process. People pay thousands of dollars to produce viral videos that are never shared. If you manage to create content that people want to share (i.e., "pin"), let them have at it. However, be aware of the potential risks and benefits Pinterest presents.

The moral of the story: Prepare to be pinned, and position yourself to parlay pins into profitable purchases.

(For more on Pinterest, see this infographic and this Pinterest Marketing Kit.)


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Kerry O'Shea Gorgone is instructional design manager, enterprise 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, or you can find her on Twitter (@KerryGorgone), Google+, 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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