To Pin Or Not To Pin: How Businesses Can Use Pinterest And Reduce Their Legal Risks Of Copyright Infringement

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Go ahead.  Let yourself enjoy Pinterest.  Pinterest is a pinboard styled social photo sharing website on which people can share what they find interesting and connect with people in the United States and abroad.  Relatively new, this social media network is extremely popular.  In August 2011, Time magazine listed Pinterest on its “50 Best Websites of 2011” column.  More recently, Mashable reported that Pinterest is a “top driver for retailers.”  Pinterest also has an app for iPhone, and a mobile website.  Consequently, it would be a shame for professionals and businesses to shy away from Pinterest because there are some copyright legal issues surrounding Pinterest.  However, businesses should use it by giving some thought to the images being pinned, and whether they have permission from the owner to use them, or, alternatively, believe they are protected by the “fair use” defense in the Copyright Act.

1.  Legal Challenges Facing Pinterest.

The idea behind Pinterest is to encourage users to surf the Internet and pin photos and material that they find interesting (translation:  sometimes the creative and copyright protected works of other people).   Pinterest explains the installation and use of its “Pin It” button as follows:

“When you are browsing the web, push the “Pin In” button to pin an image.  Once installed in your browser, the ‘Pin It’ button lets you grab an image from any website and add it to one of your pinboards.  When you pin from a website, we automatically grab the source link so we can credit the original creator.”

Notably, these instructions do not say anything about paying a royalty to the original creator or getting their permission in advance to use their image on Pinterest.  It is therefore not surprising that some people are arguing that Pinterest may not qualify for the “Safe Harbor” provision of the DMCA (aka “DMCA 512”) which shields website operators from copyright infringement when they are passive infringers who have taken certain steps to qualify for the safe harbor, and have not encouraged the alleged copyright infringement.

The other story circulating on the Internet concerns Pinterest’s terms of use.   Pinterest states that users agree not to infringe, violate or otherwise interfere with any copyright or trademark of another party, and that the user will indemnify Pinterest for any  costs and attorneys’ fees from any claims.  This term of use can be found on virtually all social networking sites, and, if it has been omitted, then that site may want to update its terms of use.  Less standard, is Pinterest’s reported practice of automatically uploading and keeping in its collection (whether you later delete the image or not) a version of the image to Pinterest.

Pinterest seems to understand it has a problem.  It is offering an opt out system which puts the onus on website owners to create code to prevent their content from being pinned.  This is not a very good solution.

2.  Ways To Use Pinterest For The Benefit Of Your Business, And Reduce The Legal Risks.

Setting aside Pinterest’s possible legal problems, your business can still benefit from Pinterest.  However, your business should do so with some thought behind the legal risks.  In deciding what to pin on your online bulletin board, your business should make an informed decision on whether you want to post only material for which you have permission from the owner, or have first worked through a site such as Creative Commons, or sites that use it, including Flickr and Google.  Alternatively, you may be willing to try and use someone else’s picture, image, drawing, or art (all of which are entitled to copyright protection), and argue that it is a fair use.

The fair use defense allows use of the original work, if the purpose for using the copyrighted work is for the purpose of fair and reasonable criticism.  Some examples of fair use in the preamble to Section 107 include:  “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”  Federal courts usually decide fair use issues by considering the four listed (but not exclusive) factors in Section 107:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for profit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole (with Pinterest pinning, this would usually mean the entire original work but maybe with the size reduced); and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

In applying the first factor, courts will treat parody and comedic use as “criticism” or “comment” but it needs to be a comment on the original work.  Thus, borrowing a song and playing around with the words to make it funny is not necessarily a fair use if it is not being done to make fun of the song itself.  For the second factor, not yet published works would receive more protection than an out of print book.

The fourth factor is generally considered to be the most important of the four factors.  This is because copyright law is designed to provide an economic incentive for new creative works.  A secondary use that threatens this incentive is less likely to be considered a fair use.  Thus, in the context of taking and using someone’s art, courts are likely to look at whether the post on Pinterest supplants the market for the original.  In other words, are people less likely to contact the owner to license her art.  The copyright issue surrounding Pinterest is another example of how businesses can benefit from giving some thought to the legal issues surrounding their social media presence.

How is your business using Pinterest?  Do you find Pinterest helpful for improving your brand, or increasing your sales revenues?  Have any of the legal concerns surrounding Pinterest resulted in you getting off of Pinterest as some businesses have done?

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, her affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication.

Michelle Sherman
This monthly Social Media and the Law column is contributed by Michelle Sherman. Michelle is Of Counsel at Slater, Hersey & Lieberman LLP in Southern California where she is a litigation attorney representing businesses. Michelle also advises businesses on the legal issues surrounding the use of social media by them and their employees, and is the editor and author of the Social Media Law Applied blog.
Michelle Sherman


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