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MIT Tech Review hails Pinterest's terms of use as a genius-level copyright dodge. And while that may be so, its position is disingenuous to the point of irony.

The problem is that "sharing whatever you like" and copyright infringement are, well, sort of the same thing. Especially as Pinterest encourages people to use "nice big versions" of what they find, and to "share from more than one source".

On one hand Pinterest makes it easy to grab images from all over the Internet, even though the terms of use say that's something users will never do.

I've already started a pin board to track the legal issues ahead for Pinterest. But thanks to the terms, using Pinterest could end-up landing me in court for doing so. And that has a few smart users backing off from this hot new social network.

If you'd like an overview of Pinterest, see my earlier post: What Is Pinterest? And Why Should I Care?

But if you have a legal orientation, or care about copyright because you're an artist, or are managing the visual elements of trademark, don't go away. This is where Pinterest becomes intriguing.

The site does not take the expected step to argue that the images on Pinterest are commentary, and part of a discussion that should be protected by the Fair Use doctrine. There would be all kinds of inconsistent rulings, and Pinterest would have a weak hand.

So far the site has done everything it can to finesse the copyright issue

The set up: Pinterest wants you to use others' images

From the very start, Pinterest encourages you to share. In the welcome note it says you should share images from "more than one source". It talks about being "nice" and repinning others' images. It makes a tool so you can easily post images you like from all over the web. As I've said however, this, and copyright infringement, is the same thing.

Shocked, shocked to find copyright infringement

So instead, it relies on its terms of use to 'ensure' — and by that I mean a wink and nod — that all images are owned by the users who post them.

So millions of users, using browser add-its for grabbing photos, are of course just doing this on their own websites, right? And if they're not, Pinterest would be shocked. Just as Captain Renault in Casablanca was shocked to find that gambling was going on within the casino. 

By clicking “Accept", users are saying they “either are the sole and exclusive owner of all Member Content that they make available through the Site, Application and Services or they have all rights, licenses, consents and releases that are necessary.”

Furthermore, if you do have those rights, you just kissed them goodbye by posting the image to the site, as per this section of the terms:

By making available any Member Content through the Site, Application or Services, you hereby grant to Cold Brew Labs a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content only on, through or by means of the Site, Application or Services.

And then the terms turn to your responsibility if ANYONE sues Pinterest for an image you posted. The terms put you, the user, on the hook to “defend and indemnify” Pinterest and its owner.

So, the instructions may be wrapped up in the guise of sweetness and sharing, but the terms of use are the exact opposite. Fortunately for Pinterest, the terms are far less prominent than the bookmarklet that quickly turns 'newbies' into copyright-infringing terminators.

Start the first pinboard for Pinterest lawsuits

Galen Moore at the Boston Business Journal wrote about his foray into Pinterest, in an aptly named article How your business could get sued for using Pinterest. He posted images that real estate firms had sent to the paper of new buildings in Boston. But on reading the terms, he noted that though he had the "use" of the photos, he wasn't their owner and couldn't grant others the right to sub-license them. 

Of course, even if Mr. Moore had taken the photos himself, images of creative works such as a buildings or paintings can have underlying copyright issues that would suck us down a new wormhole. Let's just agree than many (and by that I mean most) images on Pinterest aren't being posted by their copyright holders.

Kirsten Kowalski who is a lawyer and professional photographer, wrote an even better titled post: Why I Tearfully Deleted my Pinterest Inspiration Boards. Her review of the terms of use, and concluded that "repinning" the images of others falls under this "grant of license" - so that while the service encourages you to repin other's work, their TOU forbids it without permission.

Is taking down your Pinboard is an over reaction? You can decide. But if you think about this for more than 90 seconds, that puts you among a very small portion of Pinterest users.

Pinterest's disingenuous copyright bet

So what if Pinterest users are infringing copyright, in spite of the terms of use that says users own image rights? 

Pinterest has developed "nopin" tags to help those that want to keep their work/content off of Pinterest. The site is gambling that only a small minority of content owners will notice any infringement and request removal of their work.

In most cases, Pinterest is spreading the fame of things people like, and often providing SEO-rich links back to the sites they're taken from.

All of this is based on finesse, born from a shambolic set of terms that has users and Pinterest both subscribing to the total fiction that users own their own copyright.

The entire Pinterest user experience promotes unlicensed use of images, something its terms prohibit absolutely. Do Pinterest's legal people ever even look at the site? Sure, that's where the winks come in.

Since users don't read the terms, they go on generally missing the alternative reality of the agreement they've entered into.

And the presumption seems to be that most content owners will be glad to have their work curated on the service. Perhaps they'll get a link, some traffic, some fame, or even karma.

Besides, who can the sue? Isn't Pinterest a start-up with no clear revenue plan? We'll cover that in my next post, which considers whether all this pinning is good business...

Dave Wieneke

Published 14 March, 2012 by Dave Wieneke

Dave Wieneke leads Digital Strategy at ISITE Design, and is a graduate lecturer on Digital Marketing at Northeastern University. He writes on the future of digital marketing at UsefulArts.us and he can be reached through Twitter and LinkedIn

 

22 more posts from this author

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Mark Gavalda

I'm not sure why would Pinterest be a bit different from YouTube? Or Flickr for a better example. If they can handle copyright issues, P will be able too.

over 4 years ago

Dave Wieneke

Dave Wieneke, Director of Digital Strategy - ISITE Design at www.UsefulArts.us

YouTube has had some pretty high profile copyright issues too. This isn't a block from business success, but for both firm's they have a significant legal challenge.

As noted, I have a Pinboard dedicated to Pinterest's legal issues -- where I copy articles discussing the risk of copying things (like the post) on Pinterest.

You can find it at:
http://pinterest.com/usefularts/pinterest-and-the-law/

over 4 years ago

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Tina Cook

Thank you for the great post Dave and bringing attention to this copyright issue. You write masterfully.

It's not cool to disrespect another person's copyright, however its dressed up and disguised. There is a simple solution - create your own content to share and you won't be infringing anyone's copyright.

over 4 years ago

Dave Wieneke

Dave Wieneke, Director of Digital Strategy - ISITE Design at www.UsefulArts.us

Tina, thanks for the kind words...and props to the editors at econsultancy for making this happen.

Unlike music and motion pictures who are highly organized around copyright defense -- the same really isn't true of images.

So, there's a real legal issue here -- but since there isn't an industry ready have to fight 'til the end on this, my believe is copyright is a "consideration" but not a block to Pinterest's success.

Though their terms of use are a fantasy disguised as as a contract, which I hope we can call them out on, its likely just dumb but not fatal. ;> (and some might say both clever and necessary to win.)

Time will tell.
>d

over 4 years ago

Philippa Gamse

Philippa Gamse, Adjunct Professor at Hult International Business School

Dave - you didn't comment on the part that says that Pinterest can take something that I created (so no copyright issue), possibly alter it, and use it with or without my name on it to make money for themselves - forever! Do you think this will ever happen - or did they just put that clause in the terms of use in case I happen to pin the next Mona Lisa?

over 4 years ago

Lawrence Ladomery

Lawrence Ladomery, Founder at automatico

And before Pinterest there was Tumblr... enabling content regurgitation.

Call me old fashioned but I think the old-school model of having to ask for permission to publish someone else's IP works fine.

But that's because - as I get older and slow down - don't quite see the value of a gazillion repins of the same gazillion images. But that's just me.

And for Pininterest to provide a tag to opt out... when the hell did I opt in?

Pininterest is fun. I'm on it and so is my wife. But I am now concerned about kissing away right's to pics of my baby daughter.

over 4 years ago

Dave Wieneke

Dave Wieneke, Director of Digital Strategy - ISITE Design at www.UsefulArts.us

Hi Philippa -

Its funny how this works. The lawyer who wrote the terms likely wanted the "maximum grant" of use rights for their client, with a fewest possible obligations to them.

Of course we never expect those with such rights to use them, until they do. My friend Anna B. found her personal name and email subject lines as part of a Gmail promotion on CNN....and if I recall correctly, their TOU supported this. It was quite a shock to her.

See the post on this:
http://usefularts.us/2010/11/29/google-privacy-gmail-cnn/

Now I'm not saying if the Pinterest's TOU supports this or not -- but it wouldn't be hard to imagine them licensing the use of the gazillion images they now "have rights to" to sub-licensees. Sort of like Shutter stock, but they got their library of images free, by running a social network.

Sure, this is a crazy idea. But I'd be really surprised if someone at Pinterest didn't consider this a long time ago...and that they might reconsider it in the future.

Until there's clarification, probably from courts, Pinterest feels like a typical, social network "no rights zone".

over 4 years ago

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Jenny

On the face of it Pinterest seemed like a fantastic idea, but as more and more articles arise talking about the rather circumspect copyright issues, I am becoming slightly less enamoured.

My particular gripe is how in the 'pin etiquette' it says to 'avoid self-promotion'. Well in order to do that by definition you would have to pin other people's images or work, but as we now all know, that then infringes copyright!

To pin or not to pin, that is the question.

over 4 years ago

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Frank Puscher

I know we Germans are pretty special on that issue but i spoke to a media lawyer on a conference in cologne today and from his view pinterest "IS" completely illegal. Its not only the pins itself. Every repin carries the CR infringement in it, so it´s the users who might be getting sued by lawyers, not the platform itself. And i bet brands would refrain from playing pinterest with that risk in it. Getty Images is going after every CR case pretty strictly, even if you only post parts of an image. It costs about 2000 Euros per post per image but only if you´re a first timer.

If you reuse content from other websites, it might happen, that the photographer granted CR to the publisher just for this single site, not for facebook, nor pinterest.

And one additional comment to the reusage by pinterest. From the standpoint of German CR-regulations one can not grant CR to pinterest for images one hasn´t had the CR oneself, so the platform would face the same problem that every user has on the long term: find out where the image really comes from. What a hazzle.

over 4 years ago

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Joyce

Seems to me that is just about everything on the internet. Agree with Ben, just about everything is getting duplicated and then beyond duplicated. You get articles that have been written and the articles get spun, so it is basically the same article just reworded somewhat. Usually the somewhat makes absolutely no sense. Also as far as the pictures, seems like if they are on the internet, anyone can copy those and re-post and so on and so on.

over 4 years ago

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Simon Newsam

Fascinating Dave, thanks. I've been waiting for this before deciding how our agency could best use Pinterest.

It's focused my mind on ownership. While we are in the business of actively trying to distribute client material such as photographs in a PR capacity, we try to keep copyright (in fact that often lies with the photographer in the UK but in practice that's just a technicality).

I think all we can do is use this for our own images that we really want to distribute and be mindful of the fact that we don't own them any more.

over 4 years ago

Dave Wieneke

Dave Wieneke, Director of Digital Strategy - ISITE Design at www.UsefulArts.us

This post and our discussion is cited in today's Washington Post. (Its a mention which is part of a larger article - and its one you helped drive....and that Econsultancy helped incubate.) ;>

http://www.washingtonpost.com/blogs/innovations/post/yahoo-facebook-and-the-wisdom-of-shakespeare/2010/12/20/gIQAFXEAGS_blog.html

over 4 years ago

Michael Rolfe

Michael Rolfe, Digital Marketing Executive at Koozai Ltd

IMO, the latest iteration of websites like Pinterest and apps on mobile devices offer convenience, neat features and attractive interfaces coupled with draconian, punitive terms and conditions which far outweigh the benefits.

It's all under the radar right now but once the digital noose is tight enough to make convictions a shoe-in, the law business will have no problem persecuting in droves.

If i were a law firm specialising in this, i would ask government to streamline such obvious offences, the benefit for govt being the large fines that could be placed upon the 20-35 yr old women of the southwest, and so on.

over 4 years ago

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Amy Lynn

I appreciate you letting the world know that there may be serious issues tied to the use of Pinterest. I too believe there are many legal issues associated with the use of Pinterest that need to be ironed out within their user agreement before the masses should feel comfortable. I just don't think many understand the possible implications of their actions. See my article for more information. http://thelawsoffashion.com/make-sure-you-are-taking-these-3-precautions-or-delete-your-pinterest/

over 4 years ago

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Member General Public

I re-pin. I do not pin. As far as I am aware, each picture I re-pin has been originally pinned to Pinterest legally by the owners of those images who agreed to Pinterest's terms and conditions and therefore the pictures are now in the public domain (or the 'pinterest domain'). This belief, I would hold to be true until a time when someone difinitively announces (someone with clear authority) that this is not the case. At that time, I would make the decision to close my pinterest account. And, considering the fact that I only re-pinned pictures that were, to the best of my knowledge, legally part of the public domain (or at least the 'pinterest domain'') I can't see where I would be liable for other's (alleged) improprieties. What say you?

about 4 years ago

Dave Wieneke

Dave Wieneke, Director of Digital Strategy - ISITE Design at www.UsefulArts.us

Quite a bit of life is enabled by denial, especially social media.

It gets us over privacy concerns, and the last commenter takes the same path of denial I often do over copyright. And I think for us as individuals he's got a good position -- because were not attractive lawsuit targets, and we'd stop use.

But companies and people who don't want to risk legal action should just avoid this path. Its based on denial.

If you use an image and its rights were not cleared (even if another represents to you they were) the owner's beef has a beef with you, the infringer.

In my limited experience - a judge will let them win their case if they can prove the right kind of use, and that the plaintiff really is the owner. Then they'll let you take on the bother of going after who ever falsely represented the image was cleared.

That's a bother for us as individuals....and career limiting as employees. So use denial with care....its unlikely anything bad will happen to us....but that doesn't make it risk free, especially at work.

about 4 years ago

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jenny warner

What a relief to see this post - I cannot thank you enough. I thought that I was going a bit mad with copyright jargon. I am a middle-aged woman - not selling, no business, no expansion plans but someone who naively liked to share photographs of things that she had made on Flickr. That was nice...hundreds of people saying how nice my things were...tra la la. Everything in the garden was rosy. I was busy showing people how to make things (I do have a real job by the way!). Along comes Pinterest - I had no idea that hundreds of my photographs were merrily being taken (not 'pinned' what a rubbish euphemism that it!) by it's site. Pinterst informs me that is cannot remove my photographs via Flickr (too vast to track down) - so I set up a blog (Pinterst can deal with removing those photographs from its site) - only to find, blow me down, every single day those photographs were being taken too. All emails to Pinterest go carefully unanswered.

Thank you again - if I knew how to sue I would!

Kind regards
Jenny

about 4 years ago

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jenny warner

RE: previous message - that should have read 'its site'! Standards slipping!
Kind regards
Jenny

about 4 years ago

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Robert Reeves

I am really glad you wrote this post. I always had my thoughts about Pinterest and copyrighting, so thank you for sharing your thoughts!

over 3 years ago

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Ronald Miller

For the life of me, I don't know how to use Pinterst in a way in a meaningful way. But, to be sure, I see the word lawsuits... I have no desire to even consider using one of their pictures.

over 3 years ago

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