Trouble in the Land of Pinterest

by Azita Mirzaian

Lately, it seems like not a day goes by without a friend, colleague, or co-worker referencing an obsession with the site Pinterest.  Pinterest is a social media site that functions as a virtual pin board, allowing users to “pin” up images from the internet of food, clothing, craft projects, interior design ideas, hairstyles, and even inspirational quotes.  Users can organize their pinned images on various “boards,” personalizing them with comments, and then can share their boards with their friends.  Pinterest’s popularity has grown exponentially since its launch in 2010, a fact that is likely attributable to the satisfaction that comes from organizing and saving all of the neat things that the seemingly-infinite internet has to offer.

But in recent weeks, Pinterest has been attracting negative attention for its terms of use policy.  The trouble began a few weeks ago when an Atlanta-based lawyer blogged about her decision to take down her Pinterest boards due to her concern that they may be violating copyright law and putting her at risk for being sued.  Because Pinterest hosts images culled from all over the internet, it’s often unclear whether or not the images’ copyright holders have given permission for, or even have knowledge of, the copying of the images.  Furthermore, Pinterest’s terms of use  include a limitation of liability clause, in which users agree that any risk arising out of their use of the site remains with them, as well as an indemnification clause, in which users agree to indemnify Pinterest in the event that it is sued for the users’ activities.

Users who had already agreed to Pinterest’s terms of use (and who among us hasn’t hastily agreed to a click-through agreement without actually reading it?) and were actively using the site were surprised to discover that the terms of use seem to throw the user under the bus in the event that the user’s pins violate copyright law.

But it turns out that Pinterets’ terms of use are fairly similar to those of other social media sites such as YouTube and Tumblr.  The notable difference is this:  unlike most other social media sites, Pinterest is basically built around the idea that users should be able to share interesting art that they don’t own.  In fact, the site’s “Pin Etiquette” page explicitly discourages users from pinning their own artwork and using the site as a tool for self-promotion.  In light of this, it seems odd that the site’s terms of use explicitly prohibit users from posting or uploading content that infringes, misappropriates or violates a third party’s copyright – it seems pretty clear that, given the basic premise of the site, the majority of the images pinned WOULD violate someone’s IP rights.  And although a fair-use argument could be made to defend the pinning, it’s a weak one; the user comments that accompany pins (statements like, “This wedding dress is so beautiful!” and “I can’t wait to try this recipe!”) are not really legitimate criticism or commentary within the meaning of section 107 of the Copyright Code, and they likely would not satisfy the four-pronged test that courts use to assess fair use.

Pinterest’s founder, Ben Silbermann, has been doing his best to respond to the recent backlash against the site’s terms of use and apparently is working with his lawyers to find a solution to the problem.  And really, it’s not yet clear how big of a problem it is and how much of a risk Pinterest users are taking by indiscriminately pinning images to their Pinterest boards; although the people who own the copyrights to the images on Pinterest certainly could sue the site and its users for copyright infringement, there haven’t yet been stories in the news about artists suing users over copyright-infringing sharing, a la Napster.  And Pinterest is doing its best to keep copyright-holders happy – the site strongly encourages users to credit their sources, and  it features a page with instructions on how copyright-holders can report a copyright infringement in accordance with the Digital Millenium Copyright Act.

Still, until these issues are addressed (by Pinterest or by relevant case-law), risk-averse Pinterest users may want to consider limiting their pinning to creator-uploaded content only, providing legitimate comments or criticisms for each image pinned (in an attempt to strengthen any potential fair-use argument that exists), or, sadly, abstaining from pinning altogether.

Azita Mirzaian is a California-licensed attorney who earned her J.D. from the University of Southern California Gould School of Law.  Her areas of interest include copyright protection, trademarks, and other intellectual property matters.

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Filed under Copyrights, Internet Law

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