Kirsten Kowalski of DDK Portraits wrote a blog post about why she “tearfully” took down her Pinterest boards. The reason she gave was her concern over copyright infringement and the liability she felt she had opened up. Her blog post went viral, including an article on the ABA Journal about it, in part (I believe) because she is a lawyer. (Full disclosure: She graduated from my legal alma mater, Cumberland School of Law in Birmingham, AL, at least 5 years before I did.)
Since the post I have received a number of questions from friends about whether Pinterest is copyright infringement and whether they can be sued because of their Pinterest boards. The short answer I have given to my friends is that Ms. Kowalski is, in my view, being overly cautious. The longer answer is below. (Scroll down to the bottom for the conclusion and how you can best avoid copyright issues with Pinterest.)
Pinterest doesn’t commit copyright infringement, people commit copyright infringement
First, let’s look at what you do with Pinterest. Pinterest members can “pin” images to virtual post boards using a smart phone application, the Pinterest website, or a browser plugin. Pinterest’s use etiquette recommends that you cite the source of the image. This citation should be more than just a link back, but a description of who made it and where it came from. The citation should also be back to the primary source of the image, not a secondary source. Pinterest users are even encouraged to point out when a “pinned” image is not well cited.
Pinterest is not per-se copyright infringement
This is not copyright infringement on its own. If you use the Pinterest iPhone application to take a photo and pin it to one of your Pinterest boards then you have not committed copyright infringement. This is the clearest example of when using Pinterest is well within copyright law. You took the picture, you are the picture’s author, and therefore you own the copyright to the picture.
Pinterest can be used for copyright infringement
Pinterest can, however, be used for copyright infringement. If I take a photo created by someone else, and therefore copyrighted by someone else, and upload it to Pinterest without the copyright owner’s permission then I may have violated copyright law. Copyright gives the copyright owner the right to distribute their work; copyright law limits when a non-copyright owner can distribute someone else’s copyrighted work.
Fair Use—Why Pinterest isn’t evil and we’re not all copyright criminals
Ms. Kowalski recognized that fair use may be the key to the copyright issues facing Pinterest. She’s correct. She is incorrect, however, as to the way it applies to Pinterest.
Fair Use and Pinterest generally
Ms. Kowalski cites the Copyright Act in her post when she analyzes the fair use issues facing Pinterest boards. Nevertheless, she only glosses over this important part of copyright law.
Section 107 of the Copyright Act allows the fair use of a copyrighted work. Fair use is not defined. The reason it is not defined is that fair use was a doctrine developed by the courts to balance copyright law against our first amendment right to free speech.
Section 107 lists some uses that might be deemed fair. This list is not exclusive or exhaustive. Section 107 further lists a number of factors courts may use:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit 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; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.1
This list of four factors is not exclusive. Courts may consider more than these four factors when determining whether a particular use may be deemed fair use.
Ms. Kowalski then focuses on a single case in her blog post: Kelly v. Arriba Soft Corp., 336 F. 3d 811 (9th Cir. 2003).2 The Arriba Soft case was a lawsuit by a photographer against a search engine who used thumbnails of images in an image search. Think of what happens if you search Google for images. The court in Arriba Soft found that the use of these thumbnail images was fair use.
This is a good result for Arriba Soft, for Google, and for Pinterest. It means little for the users of Pinterest. The Arriba Soft decision is unlikely to have a no bearing on whether a Pinterest user has committed copyright infringement by uploading a photo to a Pinterest board.
Fair Use Probably Applies to Most Pinterest Situations
Let’s quickly look at the four non-exclusive fair use factors as applied to Pinterest boards.
First, most Pinterest boards are not for commercial use. Most boards are personal. In fact, Pinterest focuses on the personal use of boards as tools for design or remodeling inspiration. Ms. Kowalski, the photographer/lawyer who took down her Pinterest boards, called them her inspiration boards in the title of her post. The fact that most Pinterest users create Pinterest boards for non-commercial, personal reasons weighs heavily in favor of the Pinterest user in a fair use analysis.
Second, the nature of the copyright work are images. These may be photographs, or illustrations, or paintings, or any image in a digital form. Here the fair use analysis favors the owner of the images copyright.
Third, and similarly to the nature of the copyrighted work, the subsantiality of the copying favors the copyright owner. When you copy an image you tend to copy it completely. Thumbnails modify the image by degrading it in order to make it smaller, but the copying is still substantial. This favors the owner of the copyrighted image.
Fourth, and similarly to the first factor above, the effect of a Pinterest board on the market for or value of the image is limited. In fact, it can be easily argued that the market for the image will be expanded through its appearance on Pinterest. This heavily favors Pinterest users in a fair use analysis.
These factors, and whichever additional factors a court might apply, must be applied to the use by the Pinterest user in a lawsuit against a user—not to Pinterest’s use of the image copy. Therefore, fair use analysis under Arriba Soft is not as helpful as the analysis found in other copyright cases. Finally, =the personal use of most Pinterest boards will weigh heavily in favor of fair use in these cases.
The DMCA safe harbor provisions protects Pinterest from lawsuits and therefore may render the applicability of Arriba Soft moot
Ms. Kowalski focused on Arriba Soft. When it comes to protecting Pinterest, however, the DMCA safe harbor provisions protect Pinterest far more than Arriba Soft. You may have heard of these safe harbor provisions before—they are the basis for the DMCA takedown process.
The DMCA roughly divides websites into two categories: service provider and content provider. Service providers do not create content. Rather, they allow their users to create content. This is the classic social media website such as Twitter, Facebook, and Pinterest. This can also include sections of a website, such as the comments section at the end of this blog or an article at the N.Y. Times.
Content providers create content. This blog post falls under the content side of the DMCA—as do the articles at the N.Y. Times and Wall Street Journal. Ms. Kowalski’s blog post is an example of the content side of things as far as the DMCA is concerned.
The DMCA provides a safe harbor for service providers, such as Twitter, Facebook, You Tube, and likely Pinterest, when it comes to copyright infringement. The reasoning is that because these sites provide a service rather than create content, they should not be liable for how people use that service. Therefore, when a user using the service uploads a photo or video or song that violates copyright, the service provider can choose to follow the DMCA safe harbor provisions and, if they do so, not be held liable for the actions of the user.
In contrast, a content provider creates content. If this content violates copyright, then it stands to reason they should be held liable for the infringement. Thus, the DMCA safe harbor provisions place the risk of copyright infringement lawsuits on the party creating content, not on the company providing a service that allows the content to be published.
The DMCA safe harbor provisions require a service provider to register a DMCA agent with the copyright office. Then, if a copyright owner believes a user of a service has violated copyright, the copyright owner sends a DMCA takedown notice to the service providers DMCA agent. The DMCA agent then ensures a copy of the notice is sent to the user, and the user is afforded a chance to respond. In the meantime the content can be taken down.
Pinterest actually has a page devoted to copyright and the DMCA process. If you are a copyright owner and feel someone is infringing your copyright on a Pinterest board, then you can visit this website and fill out a form to electronically send a DMCA takedown notice to Pinterest’s DMCA agent.
The DMCA means it is unlikely Pinterest will be sued, or can be sued, over your Pinterest boards
One of the main worries of Ms. Kowalski is that she will be on the hook for Pinterest’s legal fees. The indemnification language in the Pinterest terms of service is fairly standard. Further, this language does mean you would be potentially liable for any fees Pinterest incurs from a lawsuit based on your actions using Pinterest.
However, the DMCA makes it unlikely that Pinterest can be, or will be, sued for your use of their website. Pinterest, as a service provider, can avoid liability by following the requirements of the DMCA. You can still be sued, your Pinterest account and boards can be deleted, but Pinterest won’t be liable for your actions.
The indemnification language is designed for really odd, outlier situations. For example, if you hack someone else’s Pinterest board, do something to inflict severe emotional distress, and that distress causes your victim to kill themselves, then you can bet the Plaintiff’s attorneys going after you for wrongful death will try and attach Pinterest as a party. This is an extreme example, and it is extreme examples such as this that the indemnification is intended to catch.
Avoiding copyright issues on Pinterest
The easiest way is to use your own photos. If you own the copyright to the photo you upload then you have no copyright worries. This, however, is not how Pinterest is truly designed to be used.
So the next best thing is to properly cite photos. Making sure you properly attribute photos and images you use on Pinterest will make it more likely that your Pinterest board is acknowledging the original author and likely copyright owner. Further, you are providing a potential economic benefit to the copyright owner by referring potential consumers back to them.
You should also use your Pinterest board for non-commercial purposes. Most Pinterest users likely do this already. However, more and more businesses are beginning to jump on the Pinterest train. If you are a small business using Pinterest, be careful how you do so!
Finally, remember the old term “de minimis non curat lex.” This is latin for “the law does not concern itself with trifles.” If your use of an image on Pinterest is non-commercial, if you properly cite the image and refer back to the copyright owner, and you are using it to express yourself, then you will have a strong fair use argument. Further, it is not only the law that does not concern itself with trifles—most copyright owners also do not concern themselves with trifles.
Ms. Kowalski is being overly cautious in deleting her Pinterest boards. Part of it is her great respect for copyrights—something she likely has as a photographer. However, her concern is overblown when it comes to the actual law.
Is it possible for Pinterest to be used for copyright infringement? Yes. However, Pinterest doesn’t commit copyright infringement, people do.
Which leads to the concerns of having to pay Pinterest’s legal fees in a copyright infringement case. This is unlikely because of the DMCA. Pinterest is a service provider under the DMCA and therefore is protected by the DMCA’s safe harbor provisions. Accordingly, Pinterest cannot be sued for the copyright infringement of its users—only the users can.
Finally, remember that Pinterest is a tool. It is a great tool. It is also a tool that can be misused. Most of us intuitively know when that misuse is occurring.
EDIT: Further Reading on Pinterest and Copyright
Andrés Guadamuz of the University of Edinburgh writes about how the copyright concerns over pinterest are overblown at his blog, TechnoLlama: http://www.technollama.co.uk/pinterest-and-copyright.
Connie Mableson at DMCAHandbook.com writes in more detail on the DMCA and Pinterest, and how Pinterest can improve its DMCA process: http://www.dmcahandbook.com/2012/02/changes-needed-to-pinterests-dmca-policy/.
Dave Fagundes, a law professor at Southwestern Law School in Los Angeles, has written a thoughtful and in-depth analysis of the fair use implications for Pinterest users at it regards the fourth, non-exclusive factor above (“effect on the potential market”) over at Prawfs Blawg. My post glosses over this analysis, Professor Fagundes goes into greater detail. Read it if you want to know more about the craziness that is copyright law and fair use.
Nancy Sims at the University of Minnesota Libraries has a great post comparing the Pinterest terms of service with the terms of service for other social media websites. She also has a clarification post on some of her points. A great read for those interested in how new media like social media affects copyrights.
- 17 U.S.C. § 107, Copyright Act of 1976 § 107. [↩]
- You can read the Wikipedia summary of the case here, and you can read the whole case here courtesy of Google. [↩]