Pinterest might facilitate copyright infringement

One of the attractions of Pinterest is how easy it is to use. But management attorneys caution that it makes breaking copyright law easy too.

Pinterest just makes it so easy, without even requesting uploads (as sites such as YouTube or Instagram do), that the infringement can happen instantly and unthinkingly,” remarked Jonathan Ezor, assistant professor of law and director of the Institute for Business, Law and Technology at the Touro Law Center in Central Islip, N.Y.

Large companies such as the Gap and Nordstrom might use Pinterest as an online referral source. Gap has its own themed pin boards such as “Denim Icons” and “Everybody in Gap.” And if the images are owned by the company, the pinning should be fine.

But when others’ images are pinned, “the copyright issues that arise include both direct and indirect infringement under the Copyright Act,” said Jonathan Pink, an attorney with Bryan Cave in Santa Monica, Calif. Though he said the chances of being sued are low, any employee using Pinterest for work purposes might be liable for direct infringement, and the employer might be liable for direct or indirect infringement, he cautioned.

Pink spoke about the copyright risks of Pinterest at a May 23, 2012, meeting of the American Bar Association Copyright & New Technologies Committee. He noted that Pinterest is a pinboard-style social photo-sharing website that lets users create and manage theme-based image collections, such as travel, fashion, recipes and architecture. Pinners can browse other pinboards, repin images to their own and “like” photos.

According to Pinterest, the site “lets you organize and share all the beautiful things you find on the web.”

Its rise in popularity has been meteoric. Since its beta launch in March 2010, it has grown to more than 13 million unique visits per week, making it one of the 10 most popular social media websites. In addition, Time magazine listed Pinterest as among its 50 best websites of 2011. 

Blog post goes viral

The lawfulness of Pinterest pins and repins wasn’t questioned much until a blog post by Kirsten Kowalski, an attorney in Alpharetta, Ga., went viral in February 2012. In her blog post she explained why she believed that Pinterest usage often violates copyright law.

Pink said that in response Pinterest released a “nopin” HTML metatag to let websites opt out of having their images pinned. And in March 2012, Pinterest updated its terms of service, rescinding a policy that frowned on self-promotion and reversing the company’s claim to ownership over all posts, he added.

Pink cautioned that most users are not getting permission to use an image when they pin or repin. “Absent permission from the author, or unless the work is in the public domain, anything taken—or even repinned—will constitute an infringement of the author’s exclusive rights to reproduce and distribute that work,” he noted.

Possible defenses

In March 2012, Pinterest released a statement saying it was protected by the Digital Millennium Copyright Act, Pink added. This theory hasn’t been tested in the courts to date.

He said users’ possible defenses for pinning copyrighted material include:

• The Copyright Act is not equipped to address the complexity of new media.
• Fair use is supposed to strike a balance between an artist’s right to control work and the public’s need for access to creative works.
• The argument that posting images accompanied by commentary constitutes the social, political and aesthetic exchange of ideas that the fair use doctrine is designed to encourage.

Pink said that pinners can avoid violating copyright laws by obtaining permission to republish from the copyright owner, taking an image in the public domain, transforming the image sufficiently so that a fair use defense might apply and creating the image to be pinned themselves. Also, photos on websites posted by the copyright owner that state expressly “Pin This” or “Share” should constitute permission for that photo to be posted.

Pinterest provides that it “respects the intellectual property rights of others and expects its users to do the same,” Pink observed. But he cautioned that linking back to the original source might not be enough.

“Unfortunately, there is an overall lack of understanding of copyright among businesspeople at all levels, whether involving Pinterest or other uses of third-party materials,” Ezor said. “Sometimes, a company only learns about copyright law when it is accused of violating it.”

Allen Smith, J.D., is manager, workplace law content, for SHRM. 

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