Social media has a new kid on the block, and its name is Pinterest. Seemingly out of nowhere, Pinterest has become the fastest website ever to receive 10 million visitors in a month.
The concept is fairly straight forward; basically, Pinterest is an online pin board that allows users to pin images, text and videos to personalized boards that they create. Those boards may be personalized according to themes selected by the user and can be populated with works taken from all over the internet. For example, a user may create a board entitled “Dream Vacations” and pin images found on various websites of beaches, hillside cities and the Taj Mahal. Users pin works to their boards by use of a “Pin It” tab installed on users’ tool bars. Whenever users come across works they simply click the “Pin It” tab, and that work is pinned to the user’s board. Users may also re-pin works that they like from the boards of other users and may chose to follow other users whose boards they like.
Typically, users collect images or images of other content that they like—text and videos—from various sites across the web without concern for who might own and have licensing rights to these works. Needless to say, all of this pinning and re-pinning raises numerous legal questions regarding copyright and privacy rights.
Generally speaking, the owner of a copyright has the exclusive right to use, reproduce, license and profit from the images, pictures and other creative works they create. Importantly, a copyright owner has the right to decide how—if at all—their work will be used. The impermissible use by another of a copyrighted work is typically infringement, unless such use is permitted “fair use” which is a limited exception recognized to further the free exchange of ideas without impairing the present or future economic value of the work. Copyright holders profit from extending licenses to others to use their works. If works are used or re-produced without a license, the copyright holder may be entitled to damages.
Pinterest’s business model certainly appears to be problematic when viewed from this intellectual property perspective. Pinterest encourages its users to “organize and share all the beautiful things you find on the web.” Even the simplest transaction on Pinterest may result in copyright infringement. For example, a user who maintains a board of his or her dream travel destinations finds a beautiful picture of the Colosseum in Rome taken at sunset from the website of a photographer. The user clicks the “Pin It” button on their browser and the image is pinned to their board. What seems like a simple action may be direct infringement of the copyright held by the photographer. Pinterest asks users to credit the source of images it pins, but doing so doesn’t necessarily cure the infringement because the user has not obtained permission to use the image. Additional problems arise when users credit inaccurate sources and deprive the authors of appropriate credit as well as the ability to promote the work.
Pinterest arguably facilitates the violation of privacy rights as well; in particular, a person’s right to publicity, by allowing users to pin images of people. A person has the right to control the commercial use of his image. For example, if an actor or athlete has licensed his image for use by Warner Brothers Studio or the NFL, that license does not extend to users of Pinterest and those that pin those images may violate that person’s privacy rights.
Pinners and Pinnees Beware
Pinterest is likely protected from liability under the safe harbor provisions of the Digital Millennium Copyright Act (“DMCA”), which provides immunity to service providers for acts of copyright infringement by customers who use their service. Nonetheless, Pinterest has implemented additional protective measures. Its Terms of Service (“TOS”) require Pinterest users to certify that they “are the sole and exclusive owner” of all content that is pinned or that “you have all rights, licenses, consents and releases” necessary to grant Pinterest rights to the content. The TOS further require users to represent that the content that they pin does not “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.” Users agree to furnish Pinterest with a “worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license” to use, sell, copy, transfer or distribute the works pinned by its users. It is highly unlikely that the millions of users of Pinterest obtain these licenses and representations that Pinterest requires of its users. Nonetheless, pinning continues and pinners increase their susceptibility to claims of infringement.
Pintrest users are not as able to insulate themselves from potential liability. If Pinterest subsequently sells or distributes images pinned by a particular user, the user may be liable for infringement. In addition, users who pin images taken from the web may be subject to infringement claims from the copyright holders whose content is infringed. Notably, small businesses owners who use the web to sell and advertise their products stand to miss what are already very limited opportunities to license and profit off of their works. They have a big incentive to bring infringement claims against users of Pinterest.
Pinterest has provided some protection for the copyright holders whose works are pinned, but it may not be enough. Pinterest offers an “opt-out” code that allows websites with copyrighted works to prevent Pinterest users from pinning images from the copyright holder’s website. Users who attempt to pin images from the websites that make use of the “opt-out” code receive a message stating, “This site doesn’t allow pinning to Pinterest. Please contact the owner with any questions. Thanks for visiting!” The efficacy of this “opt-out” code is questionable, since Pinterest is new and copyright holders may not be aware that the code is available. In addition, the existence of the code might result in the unintentional grant by the copyright holder of an implied license to pin for the pinner. The grant of an implied license to use copyrighted materials has been found in similar situations. In Nevada, the owner of a website containing copyrighted material failed to make use of widely available code that would enable him to prevent the display of images from his website on Google. The court found that the website owner’s failure to make use of the code resulted in a grant of an implied license to cache and display images from the website to Google. Copyright holders who fail to employ the “opt-out” code offered by Pinterest may similarly be at risk.
Pinterest Not Completely Out of the Water
Despite the DMCA and its TOS, Pinterest may not be able to shield itself completely. Immunity under the DMCA might not be available should Pinterest start to monetize the pins. Pinterest has experimented with several revenue options including advertising and embedding affiliate links to pins featuring goods from retails sites like Target and Amazon. If someone clicks on the link and purchases a product featured in the pin, Pinterest may make money from the transaction.
Additionally, claims for contributory infringement (for inducing infringing behavior,) may start to proliferate, and courts could perceive Pinterest as they did Napster and find that the service Pinterest provides compels infringing behavior. The Napster court found that Napster’s service, which allows users to exchange and download copyrighted music files from their computers, encouraged and assisted the infringement of its users and that Napster had actual and specific knowledge of the infringement. The court also found that Napster derived a financial benefit because the infringing material attracted additional customers to the service, thereby increasing its customer base and ultimately its revenue. The service provided by Pinterest arguably is comparable to Napster, and Pinterest certainly benefits from the increase in traffic and marketing opportunities.
Should I Use Pinterest?
Whether folks – particularly the risk averse (looking at all lawyers out there) among us – should use Pinterest in light of these concerns is an individual question. Pinterest provides a unique and socially useful service that inspires creativity, yet places an important responsibility on its users. Whether this responsibility is too much to ask from the typical consumer remains to be seen, but if Pinterest is to survive, users must evolve and adapt to the new digital media platform. That means users of Pinterest must learn to comply with the TOS of the site and to obtain permission before using certain images that may infringe on the intellectual property rights of others. It also means that small business owners should recognize the possibilities presented by Pinterest and take steps to protect their intellectual property (opt-out), while at the same time being open to free publicity or licensing of their works for display to the large (and growing) audience of Pinterest users.
Big businesses such as large retail chains should view Pinterest as a gold mine as Pinterest combines consumers with similar interests and tastes in one place. Companies that would benefit from this should open accounts and create boards with lasting imagery for its customers and products. Doing so might create a buzz about certain products and drive traffic to Pinterest boards and their websites. All companies must ensure that they make use of their own images, or images they are licensed to use, to avoid any infringement issues.
Pinterest must also be open to adapting and evolving. Just as Pinterest allows for copyright holders to opt out of having their works pinned, it should work toward developing mechanisms for users to obtain permission, or limited licenses, from copyright holders in order to pin works on Pinterest properly. That way Pinterest can at least provide some protection to those who are most important to the site: the users.
Many thanks to Paul Pittman, out of our D.C. office, who contributed greatly to the research and drafting of this article.