McHale Slavin NewsletterMchale Slavin

March 20, 2012

Joseph J. Stafford

Intellectual Property Attorney


TO PIN OR NOT TO PIN   

          From Facebook and LinkedIn, to Twitter and YouTube, social media websites have been redefining the way people connect, interact and do business. With the ability to instantly connect millions of users based on education, profession, interests and hobbies, the social media emergence has been exciting to say the least. Users can post images, videos, music, quotes, and the like for their ever-expanding network of friends and connections to follow along. However, with the enthusiasm and endless capabilities of these innovative sites, users must be aware of the potential risks of (1) copyright infringement or (2) loss of ownership rights of their original work that come with each “post,” “tweet” or even “pin.”

          For example, one of the fastest growing social media websites is Pinterest. Launched in March 2010, Pinterest is a pinboard-style social media site that allows users to post or “pin” interesting images to a personalized, virtual image board, or pinboard, by topic or theme (e.g., art, fitness, travel & places, etc…). The posting of photos, images, clipart, or the like (“Images”) range from those copied from a different website to original Images created by a user. After “pinning” the Images they find interesting, users can share their customized pinboard with others.

          While there are numerous social media advantages to Pinterest, users must be cautious when posting Images because many “pins” are taken from a third party website where the user is supposed to pay for the Image. When a user “pins,” the user is essentially copying a full-size Image to Pinterest’s servers. In these cases, the owner of the copyright in that image may be able to bring a copyright infringement lawsuit against the user, much the same as owners of music brought lawsuits over users who downloaded off Napster or Limewire.

          In order to track the use of a copyright owner’s images, many such owners may place a secret, traceable code in the Image such that when the copyright owner searches for the Image on Google or other tracking program, the owner can quickly determine who is using the image without the owner’s permission. In the case of businesses using Pinterest, such an action could expose the business to potentially crippling damages. In addition, individuals are not immune to such actions and the risk of statutory damages leads many defendants to settle for thousands of dollars just to avoid lengthy litigation.

          Pinterest has addressed these copyright infringement issues by shifting the burden to the user. Pinterest states in its Terms of Use: YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, APPLICATION, SERVICES AND SITE CONTENT REMAINS WITH YOU.

          It is important to note that while Pinterest may be protected under the “safe harbor” provisions of the Digital Millennium Copyright Act (which protects websites from liability for user uploaded content that is promptly removed upon notice by the original content owner), Pinterest users are not afforded the same protection. Moreover, it is likely that Pinterest users will not be able to assert a fair use defense because the images are “pinned” in their entirety and there is likely nothing transformative about them.

          Another important concern arises when users “pin” their own original work to pinboards. By “pinning” their own Images, users grant Pinterest a “worldwide, irrevocable [and] perpetual” license to use that image. Whether it is a picture of an original work of art, or a personal photograph taken on vacation, Pinterest can use it forever. This irrevocable and perpetual license is different than that of most social media sites like Facebook and YouTube, where the license to use the content ends once the content is removed. Therefore, users must be wary that should they “pin” their own original work, Pinterest’s perpetual license allows them “to use, copy, adapt, modify, distribute, license, sell, transfer … and otherwise exploit such [content]” whether or not the user removes it.

          Overall, Pinterest and other social media websites provides a valuable resource for users to create virtual bulletin boards that allow them to “organize and share all the beautiful things you find on the web;” however, users must be vigilant to copyright issues. Each social media website may have unique provisions, but copyright law is the starting point for the users to understand their rights and duties.

 

By: Joseph J. Stafford

Intellectual Property Attorney