Why deleting your Pinterest boards over copyright concerns is an overreaction

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.

Conclusion

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.

  1. 17 U.S.C. § 107, Copyright Act of 1976 § 107. []
  2. You can read the Wikipedia summary of the case here, and you can read the whole case here courtesy of Google. []

12 Comments

  • I agree with your fair use analysis and that the lawyer who wrote that article about Pinterest went too far.
    However, I wonder if a user even needs to reach the fair use analysis. When I use Pinterest, it asks me to insert a URL. I typically insert a URL of a web site and Pinterest subsequently pulls the image and links it. So here’s my question: if all I am doing on Pinterest is sending a link to a website that contains an image, how is that a copyright violation? If I link to a NYT article on my blog, I am fully within rights to do that. However, if I reprint the entire piece with no commentary, insight, etc…it probably violates copyright even if I link back.
    I understand that if I take a screen shot of photographer’s work online and upload that screen shot, it’s pretty straight up copyright violation. But if I just send the link and Pinterest does the rest, I’ve not done anything wrong. Have I? My guess is that’s why Pinterest tries to shift liability to users — because what Pinterest is doing (i.e., pulling the image and putting it on its own machine) is arguably problematic, not the user. I also tink that it would be difficult for Pinterest to enforce its TOS on indemnification when it is creating the problem, not the user. Anyway, I have not see any analysis of this particular issue.

  • Ms Elefant,

    Good to see you commenting. As a solo practitioner, I know of you and your work for us solos.

    The question is what Pinterest does with the linked images. Does it copy it to their server? My understanding is that they do.

    In this sense, you are not asking Pinterest to link to the image as you are linking to a NYT article on your blog. The image is actually being copied to Pinterest.

    A Pinterest user could arguably have individual liability because they are directing Pinterest to do this. In this sense, Pinterest is acting as the user’s agent. Further, the Pinterest TOS clearly states that users are only uploading and linking to images for which they own the copyright or have a legal right to use on Pinterest. Therefore, you are violating Pinterest TOS if you do not have a right to use the image. For this reason, Pinterest is not the one creating the problem—the user is the one creating the problem.

    Accordingly, the TOS is probably enforceable in these situations. Further, the indemnification is designed to ward off attempts by the Defendant to plead in Pinterest as a co-defendant. (Which would probably fail because of the DMCA provisions.)

    The greatest likelihood of Pinterest facing copyright legal troubles is through secondary liability for inducement in the same vein as MGM Studios Inc. v. Grokster. A brief background on secondary liability can be found on our good friend Wikipedia here: http://en.wikipedia.org/wiki/Secondary_liability#Kinds_of_secondary_liability

    In short, while the Pinterest TOS is likely enforceable regarding indemnity, I do not see indemnity coming into play because of the DMCA. Therefore the risk is borne entirely by the user. As long as the user can pass the fair use analysis with their Pinterest boards, they should be fine. Lastly, I do not see many people going after Pinterest users for this. (However, I have had to deal with what could be described as “photo copyright trolls” on behalf of some clients in the past. A quick Google search on Getty Images lawsuits can give you an idea of what they do.)

  • Thank you for your extensive analysis of this issue. Your piece was above and away the most thorough and even handed discussion. I do tend to agree that people who are linking to book covers on Amazon or photos of merchandise will probably not have an issue. I also wonder how many images online are actually registered as copyrighted – isn’t the registration what triggers damages? I’m sure that photographers copyright their photos, but wonder if individual users or bloggers are doing the same.

  • You have to register your copyright before you can bring a lawsuit, but you do not have to register it before you can be damaged by infringement. Registration prior to infringement (and putting a copyrighting notice on the work) can give you the right to ask for statutory damages, however.

    What this means is that many general bloggers would have a harder time proving their damages. In the end they may end up with an injunction and some nominal damages, perhaps attorney fees. (Which are discretionary and meted out by the court hearing the case.)

    One thing to consider, however, is a related issue facing creative artists which use Pinterest and other social media websites. Social media websites require users to grant licenses to use the works they upload. These licenses are quite broad. The uploaded work (such as images, or music, or whatever) can often be used however the social media website desires. They can also be sub-licensed.

    I have read some analysis of Pinterest’s licensing from photographers and Etsy-type folks. It’s spot on. The long and short of it is this: If you want to retain tight control on the dissemination of your photos or other works, then don’t distribute them on social media websites. Distribute them on your own blogs and websites you control.

    But that’s always been the case, frankly. I remember these same concerns over Typepad and Blogger from the writers creating blogs. (And it’s one reason I run my WordPress blog on my own website—more control.)

    And thanks for the kind words Ms. Elefant. I think the Technollama blog post is also quite good at analyzing the fair use aspects of Pinterest.

  • [...] Why deleting your Pinterest account over copyright concerns is an overreaction. [...]

  • Morena wrote:

    Hi,

    I was searching on the internet for articles such as this to find out more about the copyright issues of Pinterest.

    I am a law student from Europe so I don’t know the full extent of the US copyright law and there is something that I don’t fully understand. Let’s say that person A takes a photo of something and posts it on his/her website. Person B likes this picture and puts it on Pinterest without permission from person A. According to Pinterest’s terms of use, by using their site, person B acknowledges that he/she is the owner of the picture or has the right/licence to place it on Pinterest AND gives Pinterest permission to exploit the image by way of licensing it to others or selling it.

    So if person A posts a picture online and person B posts it on Pinterest, Pinterest is allowed to sell the picture to a clothing manufacturer like H&M who will print the picture on thousands of shirts to sell in their stores.

    How can person B transfer a (copy)right to Pinterest that is not his/hers to give away?

    And is there anything the original owner of the photo (person A) can do about this? I mean, person A has no interest in suing person B but rather would like to sue Pinterest or H&M for damages / lost profits etc.

    It’s not the pinning of pictures that worries me but what happens with them after that…

    I would love to hear your thoughts on this!

  • Great question. And this is a problem for Pinterest. The reason their terms of use are written that way is that many social media sites can run into problems when they try to advertise their services or monetize certain aspects of their products. Facebook does something similar to this. Also, some social media sites create application protocol interfaces (APIs) that allow third parties to mashup the social media website’s data in interesting ways. In order to do these things, Pinterest needs to have certain rights.

    As to the copyright issue, if a user has a fair use right to the photo then they have the rights to use it. This meets Pinterest’s terms as I read them. They do not, however, have the right to grant Pinterest a right to use the picture by selling it to a third party for use on products (such as to H&M for a print on an outfit).

    There is a basic maxim in property and contract law: You can only transfer as much rights as you possess. Therefore, a Pinterest user can only transfer rights that they possess, and a fair use right does not extend to selling the work to third parties.

    In short, Person B above cannot transfer the 9copy0right to Pinterest that is not Person B’s to give away. Nothing changes that.

    Person A in the above example does have a remedy. Pinterest is violating copyright if they sell the work to a third party, and Person A will have an independent cause of action against Pinterest.

    There is the question of whether Pinterest will be able to recover attorney fees against the individual uploader. Their Terms of Use, as Mrs. Kowalski points out, tries to create the right. However, I doubt Pinterest will be so cavalier to incur liability in the way outlined above. Pinterest won’t avoid having to pay attorneys under the Terms—they simply have a right to potentially collect back the fees from a user. Potential is the key word—this clause very well might not be valid under some state laws, and even if it is a Pinterest user likely won’t have the money capable of covering the court costs.

    Even more to the point, the Pinterest user didn’t violate the agreement if they had a fair use rights to upload the photo, and therefore the attorney fees provision of the terms should not be applicable since it was Pinterest’s own actions—not the actions of the user—which created the liability.

    In short, Pinterest shouldn’t engage in risky copyright behavior of this type. There are, however, ways Pinterest can sublicense the work to third parties such that fair use rights are not violated and no liability attaches.

    Finally, I think the big issue with Pinterest for creative artists—both Pinterest users and others—is the very concern you brought up: Pinterest’s use of works uploaded to the service for commercial gain.

    How will they do this? Will they sell pictures to third parties to put on clothing prints or on bags? Will they license them to advertisers who advertise on Pinterest (as Facebook once did with Facebook photos)? Will they sell them to Postcard makers? More importantly for a creative artist, such as a photographer, what rights are you giving away if you upload your works to Pinterest?

    When I advise photographers on social media I try to explain to them the risks and the rewards. Some photographers are very protective of their works and do not want the distributed except by that photographer. The value they see in their work is in the actual photograph.

    Some photographers place the value in their work on the services they provide. Portrait sittings, wedding and event photos, photos for advertising products, et cetera—the value is in the service the photographer provides in order to create the work.

    Both are valid views on the value of a photographers work. For the first person who places the value in the photograph itself, they will not want to promote their work through social media sites except with extreme care. For the second person who places value on services, promoting their work as broadly as possible, through social media sites and other sites, is more important than careful control of their photographs.

    I apologize for this comment being so long. I am running around and helping with a wedding this week and I did not have time to write something shorter and more succinct.

  • Elena Gomez wrote:

    Thank you for this post and the comments. I am commenting as a creative. I thought Pinterest was great and it was always lovely to see our worked pinned until I read about the copyright issues recently and then came across a Pinterest app for turning favourite pins into books and posters. What next? Imagine the effect on an illustrator/printmaker who sells prints, in the least emotionally. No amount of credits and link backs to our site can make up for the injustice of Pinterest just helping themselves to our artwork off the backs of good intentioned pinners !

    Creatives should not have to use the opt out code on their sites, there should be an opt in code, especially considering the rate at which social sites like this are popping up. I have no trouble with life style shots being used at all, I doubt anyone selling anything would, but complete flat artwork is a real problem. I’d be very happy for my work to be kept to pins only and I can see how great Pinterest is for the general user, but for people like me it is potentially devastating. I don’t think Ms. Kowalski is over reacting but I do appreciate your post, and the comments, being one of the best I have read on this subject.

  • Ms. Kowalski was over-reacting as to her own liability for copyright infringement. That was the substance of my post.

    You are correct that there are interesting problems for creative artists when it comes to their own work on Pinterest. My post focuses on the risks to Pinterest users.

    If your work is being improperly used by Pinterest—or any website—in violation of copyright you have the right to issue a DMCA takedown notice. Further, you have a right to press your copyright claims with Pinterest itself as it pertains to their use of your work for direct commercial gain.

    Nothing in my post should indicate you do not have these rights. If it does read that way, I apologize for the lack of clarity.

    Pinterest does have some copyright issues to face when it comes to providing more services to its users. One service you mention is one that turns favorite pins into books and posters. (Is this a Pinterest service, or a third party service?)

    The copyright issues this creates is no different than those faced by any printer. If I were to take a number of images to FedEx Kinkos, a franchise printing company here in the U.S., and had them made into books or posters then I would still need the right to do so. Further, the printer has certain duties to ensure that I have that right.

    Similarly, Apple’s iPhoto includes options for creating books, postcards, and more from the photos in iPhoto. If you do this then you have to confirm to Apple that you have the right to create this work. Many other online-based printers work this way.

    The question is whether Pinterest can fashion their service such that they meet these duties and obligations to make sure the user trying to create the book or poster has the rights required to do so.

    This is to say that the problems created by Pinterest’s efforts to provide services to its users—such as the creation of books and posters—are not new problems facing the creative industry. Rather, they are new manifestations of old problems (or a new iteration of the same problem created by other companies).

    As for the opt-out code, nothing in U.S. law requires Pinterest to create that code. However, it is a good-faith effort to address the concerns of creative artists as to Pinterest pinning. This solution may not the best, but it does indicate Pinterest is listening to the concerns of creative artists and trying to find a way to satisfy their needs and the needs of Pinterest users.

    Hopefully Pinterest’s efforts along these lines will continue.

    Thank you for reading the blog and I wish you luck with your creative work!

  • Elena Gomez wrote:

    You are right, I have side tracked from the points you were making ! Many thanks for your considered response on this other issue, it’s very useful, food for thought and greatly appreciated. To answer your question, it’s not clear without joining the app (which in vain I don’t want to encourage by adding the link) whether it is a Pinterest service or a third party service.

    I’ll leave you to do what you do best and will follow with interest !

  • Jennifer Nelson wrote:

    John, this was a well thought out, calm analysis. Will you be reviewing the new TOU posted today? I am curious to hear what another lawyer thinks of them (frankly, I think they are even more of a muddle in their attempt to be ‘friendly’).

    I wish every Pinterest user could read your article!

  • Thanks for the comment! I have not had time to read them yet. My wife gave birth to our second child on the 12th and I have been working around that. Thanks for the heads up, however—I think a followup post may be warranted.

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