|Hilary JM Topper|
Within the last couple of weeks, there has been a lot of controversy over at Pinterest. First, the social networking site, which acts as an online bulletin board with stuff you love to “pin,” changed its look. The site, which at first looked as cluttered as my offline bulletin board, now has a clean, striking look. Larger images on top are followed by smaller images on the bottom, and each bulletin board looks a little like a Google+ Hangout.
Secondly, a wedding photographer/lawyer, Kirsten Kowalski, posted her original photographs on her Pinterest page. Soon thereafter, she took them down because she claimed that pinning her artwork on Pinterest is copyright infringement. (Personally, I think the whole thing was a publicity stunt to get people to look at her Web site, which I, of course, did right after the incident.)
Pinterest does have a long-winded copyright policy right on its site, which states that it is not responsible for individuals infringing on copyrights or other intellectual property rights of others. They have good reason to do so—they are doing this to avoid getting sued.
But what about the individuals who want to pin a piece of artwork or a book cover on their boards? Are they really violating copyrights?
Copyright law creates an exception for the fair use of copyrighted materials. It is not a violation of someone’s copyright if it is being used in a manner covered by the fair use doctrine. For example, if Kowalski kept her photographs on Pinterest and you decided to repin her work, all you would probably need to do is make a comment as part of the pinning for it to become part of Fair Use. Section 107 of U.S. Code states that “reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship and research.”
Although Fair Use is never actually defined, there are several tests to determine whether a use is fair.
Is the use for commercial or nonprofit purpose?
What is the nature of the work being used? (Are you posting a full film, photo, TV show, song, etc.?)
Are you using the whole work or just a part of it?
How does the use affect the marketplace? (If you are posting a book cover, you are not giving away the work.)
The easiest way to avoid copyright issues is to use your own photo. If you don’t own the photo, make sure you give credit to the photographer. If you have a small business, be careful of what you pin.
To protect yourself from copyright infringement on Pinterest, or any other social networking site for that matter, make sure that you comment on the work you put up. When Pinterest asks you to “Describe on your pin…,” that means to comment on your pin, which should help to protect you via the Fair Use act.
You will notice that on all of my pins, I say something about the images—why I like the pin and why it’s important to me. All of these things combined will help avoid copyright infringement.
Lastly, in this digital age, does any of this really matter? If the copyright holder is posting their materials anywhere on the Web, aren’t they giving up the right to claim that someone else violated their copyright?
The question is, if a photographer, artist, jewelry designer or any other creative person decides to launch a Pinterest page, isn’t he/she doing this to promote his/her products? And if so, isn’t it a good thing for others to repin the work to spread awareness? I think so, don’t you?
Hilary JM Topper, MPA, is the president and CEO of HJMT Public Relations Inc., a public relations, social media, event planning and graphic design firm celebrating its 20th anniversary. She is the author of Everything You Ever Wanted to Know About Social Media, but were afraid to ask, and is the president and founder of the Social Media Club of Long Island.
8 responses to “Stress-Free Pinning: The Ins and Outs of Fair Use and Pinterest”
Why would you place anything you would not want re-pinned on Pinterest? As for other intellectual property I’m sure there are ways to protect the owners interest without all this fuss. I have been to sites where photos do not pull up when I hit pin. No problem. I assume they do not wish to share those items. People do not want to take responsibility for taking care of their own business and securing their property, too bad. Do not punish the world for a few people’s laziness. I am always as careful and obliging to give credit even when not expected from the owner. I say Pin away! And “step up” to those who place their property on a web-site. Duh!
“…all you would probably need to do….” and “…which should help protect you…” is not much reassurance. This doesn’t really give any guidance at all. It is still unsettled.
First, copyright owners do NOT give up their copyright if they post copyrighted work to the web. That is just a wrong understanding of copyright law. Second, the Pinterest terms of service to which users agree asks them to warrant that they have the right to pin the items they pin. It’s not completely clear that just commenting on someone’s copyrighted work is covered by the fair use exemption, so it’s not clear that users are not violating copyright law by pinning work they don’t own.
This was a poorly researched piece and should have ncluded comment from lawyers at ASMP, PPA, NPPA, and other professional photography organizations, not from a PR person who only appears to want to sell her clients Pinterest consulting services!
I have to agree with Steve Lubetkin, in that this is a very incomplete article, and this issue is just going to continue to get complicated for pinterest.
Steve – Thank you for your comments. I just wanted to clarify that I don’t believe that posting on the web formally eliminates copyright protection. The reality is that once something is posted on the web, in today’s internet environment, people are posting and re-posting without regard to others’ copyright. It becomes nearly impossible to enforce copyright laws in the current environment.
I agree with you that commenting alone may not be enough to evoke the fair use doctrine. However, as stated in my article, commenting is one of the considerations for determining fair use.
Lastly, this article is not meant to be a definitive legal treatise on Pinterest and copyright law. If you are looking for that, check out the ABA web site. Instead, my piece is written to highlight an important topic and summarize the considerations on both sides of this developing issue.
Seems to me that this is just the latest front on an issue that has existed as long as the internet. The record and film industry have had to deal with this issue since napster and file sharing. I agree with Ms. Topper,copyright aint what it used to be. Fair Use is the pintrest user’s best defense in the unlikely case that a private user is sued. Since the case has not come up yet, all one can do, as Ms. Topper recommends is comment, use as little as possible, etc. IMHO her article is well thought out and researched. Looking forward to more of her work!
The only controversy there is over Pinterest was started by people like you who don’t understand the internet or social networking.
Pinterest never had a copyright problem, nor it’s users. But, it’s users, a whole generation infact, do have a problem with copyright. It’s antiquated. It’s out of touch with the way society circulates ideas. It’s dumb.
If Pinterest has a copyright problem, then so does Facebook, Twitter, Tumblr, Reddit, Yahoo, Google… in short, the whole internet.
Get on board with the 21st century or go away.
This is a test comment.