Jonathan Pink — Entertainment, Internet and New Media Partner at Lewis Brisbois, LLP Rotating Header Image

Things Are Getting Pinteresting

It seems enough people pinned about Pinterest’s copyright problem that Pinterest decided to changes its Terms of Service and, more importantly, ditch it anti-self-promotion policy.

Pinterest is a UGC site that allows members to “pin” images they’ve found online and share those images with other Pinterest users (including visitors to the site; you don’t have to be a member to see what is posted there). While that may seem a terrific business plan on its face, taking images without permission will likely violate the copyright interest in that image, potentially subjecting Pinterest’s user to a claim of infringement.

Given the site’s inherent copyright problem, a user could effectively avoid violating U.S. copyright laws only by: (1) creating the posted image themselves; (2) obtaining permission to republish from the copyright owner; (3) taking an image in the public domain; or (4) sufficiently transforming the image so that a fair use defense might apply.

Each of these has (or had) its own problem. Let’s start with the last and work our way up.

Not much has been made of the possibility that a fair use defense could apply to Pinterest users’ pinning of copyrighted images. It bears some discussion.

The Copyright Act is not currently equipped to address the complexity of new media. It is supposed to strike a balance between the artist’s right to control her/his work and the public’s need for access to creative works, a balance that is typically expressed as the “fair use” doctrine. See 17 U.S.C. Section 107; Red Lion Broad. V. FCC, 395 U.S. 367, 390 (1969) (recognizing “the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas”); see also Stewart v. Abend, 495 U.S. 207, 228 (1990).

A strong argument can be made that posting of images on Pinterest, especially where accompanied by commentary and insight, constitutes the type of social, political, esthetic exchange of ideas that the fair use doctrine is designed to encourage. Even if this argument requires a bit of legal-shoe-horning, I think it is fair to say that it is this type of flexibility that doctrine must be capable of if it is to fulfill its purpose as a First Amendment safeguard. See Eldred v. Ashcroft, 537 U.S. 186, 219 (2003). There is no doubt that commentary, criticism and parody are not the only types of expression that provide social benefit and deliver new meaning to a work. See Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1165 (9th Cir. 2007). If so, and if the fair use doctrine is to remains flexible enough to co-exist with contemporary technology, then the use of images in social media should slip comfortably into the fair use “shoe.”

Of course, fair use is a defense. This means that it only applies if and when a suit has been filed. If the goal is to avoid triggering an claim for copyright infringement, then a possible defense may not provide the comfort most social media users are looking for.

That brings us to taking an image in that is in the public domain. This is an easy way to avoid triggering an infringement claim because there work is free for the taking. The only problem is that determining whether an image is in the public domain takes some sleuthing. Generally speaking, images created prior to 1923 are safe. Republish one of those and no one can cry foul. Also safe are images published without a copyright notice between 1923 and 1977. How do you know if they were published without a copyright notice? Not so easy: you have to search the archives to figure this out. Also safe, albeit equally difficult to determine, are those published from 1978 to March 1989 without a notice, and without a subsequent registration. So, while these images may all be “safe” from an infringement perspective, determining whether an image was published with or without an image may be difficult, and those created before 1923 may be too old to interest many social media posters.

So, you’re looking for an easier, fool-proof solution? Ok, one effective solution is to obtain permission to republish from the copyright owner of the desired image. First you have to determine the identity of the owner, then you have to contact that person, and finally you have to obtain their consent. Hey, I said “easier,” not simple. This is because even if you manage to find the copyright owner, she/he may be unwilling to allow you to use their work. This is especially so with a site like Pinterest which states in its terms of use that pinning any image carries with it an implied license permitting any other pinner to repin. Thus, a copyright owner who gives permission to you is, in effect, giving permission to every Pinterest member in the universe to republish as well. Some artists may balk at such broad of a license even if – at first blush — they were inclined to permit republication by you.

Finally, there is the simple and elegant solution of creating the material that one pins. Setting aside your inability to take a decent picture, Pinterest’s had a prior policy that seemed to discourage creating images that promoted one’s own work. Under the admonition “Avoid Self Promotion,” Pin Etiquette had been that “If there is a photo or project you’re proud of, pin away! However, try not to use Pinterest purely as a tool for self-promotion.” I’m frankly not sure why Pinterest had this policy. I suppose the idea was to legitimately share what interests you, rather than to line your own pockets with your own praise for your own work. So Martha Stewart couldn’t have a board for the myriad of stuff she’s trying to sell. But why not? It seems every third pin board contains an image linking to Martha Stewart, so isn’t that the same as her pinning the images herself?

In any event, Pinterest’s newly revised Pin Etiquette does not include this dictate. Instead, it includes the benign “Pinterest is an expression of who you are. We think being authentic to who you are is more important than getting lots of followers. Being authentic will make Pinterest a better place long-term.” Ok. Whatever that means.

I suppose what this means is that they’ve opened to door (a little wider) to members creating and posting their own material. Will this eliminate the copyright problem inherent in the Pinterest business model? No. The risk that UGC will infringe someone else’s copyright is still very high. In fact, I doubt Pinterest would continue to exist without it. But this is a good move in the right direction. In fact, it’s evolutionary: a development that even might insure Pinterest remains viable long enough to turn a profit.

Feel free to pin – or stick pins in – anything I’ve said.

Jonathan Pink is an intellectual property attorney located in Los Angeles and Orange County. He leads the Internet and New Media Team at Bryan Cave, LLP, and can be reached at jonthan.pink@bryancave.com.

Jonathan Pink is a business lawyer with a specialty in copyright, patent and trademark litigation. His clients include many of the biggest names in the automotive and motorcycle aftermarket parts industries, and one of world's largest media companies. He has extensive experience in a wide range of intellectual property and commercial disputes including breach of contract, fraud, and the misappropriation of trade secrets. He can be reached at 949.223.7173, or at jonathan.pink@bryancave.com, and his full profile can be viewed at www.bryancave.com.

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