I wish every Pinterest user could read your article!

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

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!

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.

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.

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!

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.