y Eleanor M. Lackman & Jennette Wiser
The newest trend in social media, with over 10 million members and drawing 11.7 million viewers each month according to comScore, is the virtual scrapbooking site Pinterest. Pinterest allows members to upload their favorite images from the Internet or their computers and share them immediately with other members.
The ability to pin and re-pin photographs creates potential issues under copyright law. Most Pinterest members do not pin photographs that they took, but rather images made by other photographers and artists – mainly content from other websites. Indeed, the functionality of Pinterest makes it easier to pin images from the Internet than it is to post images that the user independently created. Pinterest itself, while requiring the member to be the owner or licensee of the content being uploaded on the site, appears to encourage users to pin images that are not their own. And once the photographs are posted, they can be pinned and re-pinned endlessly by others. This has caused observers such as the Wall Street Journal to ask this week, “Is Pinterest the Next Napster?”
Pinterest does take efforts that aim to prevent infringing use of copyrighted photographs. It maintains a notice-and-takedown policy, and Cold Brew Labs, Inc., which operates Pinterest, has registered with the U.S. Copyright Office as a designated agent for receiving Digital Millennium Copyright Act (DMCA) takedown notices. (Under the DMCA, a service provider that hosts infringing content may avail itself of protections from liability for that infringement if they promptly remove the infringing material after it is reported.)
The terms of service warn members against pinning copyrighted photos. They inform the member that the act of giving credit to the original owner or author is not enough – although “Pin Etiquette,” available on the Pinterest site, requests members to link back to the original source, which presupposes that the member doing the pinning is not the original source. The terms require that the member warrant that she is either the sole and exclusive owner of the content or has all rights, licenses, consents and releases necessary to grant Pinterest the use of the image. Members warrant that neither the content nor the posting or publication of the content will infringe, misappropriate or violate a third party’s intellectual property or other proprietary rights. Members further agree that they take sole responsibility for all member content that such member makes available through the site. Perhaps most serious is that the terms of service require the members to agree to defend, indemnify and hold harmless Pinterest against any claims, liabilities, damages, losses or expenses, including legal and accounting fees, which may arise. In other words, not only does the member have to cover his or her own fees but also Pinterest’s fees, although in a major litigation against Pinterest for contributory infringement, it may be unlikely that members would be on the hook to pay the judgment or legal bills.
Some have suggested that pinning might not be illegal, but that it might be a “fair use” under Section 107 of the U.S. Copyright Act. Fair use is determined by analysis of four factors: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the work used in proportion to the work as a whole, and (4) the effect of the use upon the potential market for or value of the copyrighted work. However, fair use is a fact-specific inquiry reviewed on a case-by-case basis for each image presented, so bright-line rules may be difficult to establish in the case of Pinterest.
Until the courts have the chance to address the issue, some copyright owners have tried to take a positive outlook on Pinterest. Popular newspapers and magazines, for example, have been doing their own pinning. Other content owners have been more creative, including generating contests around pinning their content on Pinterest, as Better Homes & Gardens has done. For those photographers and other content owners who have no interest in Pinterest, they may avail themselves of Pinterest’s recently introduced snippet code, which can be added to websites to stop users from pinning their content. If a user tries to pin something from a website that has added the code, the user will be prompted with the message: “This site doesn’t allow pinning to Pinterest. Please contact the owner with any questions. Thanks for visiting!” This of course will only offer relief to photographers who only display photographs on personal websites, as many third party sites using their photographs may not wish to discourage pinning.
In a recent call with Pinterest, Pinterest claims to be listening to some of the recent criticism regarding its terms and plans to release revised terms shortly.