Tuesday, July 10, 2012

Pinterest and Copyright: Should you be afraid?

I'm not normally one for wordy blog entries, but the issue regarding the use of Pinterest is one that I think is important for all artists to explore.

There has been a lot of talk around the internet regarding Pinterest and artist copyright.  Many artists are choosing to block their images from being pinned, seeing it as a direct assault on their copyright, or worse as being a gateway to their images being used for the commercial or personal benefit of others.  Why has Pinterest raised these concerns where other forms of social media seem to fly under the radar?

The concern started when Kirsten Kowalski posted this article back in February in which, as a lawyer, she explores the legality of using Pinterest.  (Incidentally, Kowalski does not state what branch of law she practices and does not state that she is a specialist in contract or copyright law).  She uncovered much of concern in the Pinterest Terms and Conditions (you know, the fine print that just about no one reads). The essence of her findings were:
  • Pinterest passes on the liability of copyright infringement onto the pinner.  Basically by agreeing to the Terms of Use you are entering a contract into which you avow that you have all rights to the images that you have posted or, at least, the permission of the creator and/or owner of the image.  This means that if someone decides to sue for copyright infringement you will have to pay for your own defence and will have to cough up any compensation awarded by the court.  The kicker is that you have also agreed to pay for Pinterest's defence if a lawsuit is also brought against the service provider.
Terms such as these would make anyone baulk if they were actually likely to be acted upon.  It is important to note that other user generated sites have similar (virtually identical)user terms and conditions, including You Tube, Facebook and Tumblr, Twitpic and Google +.  These types of contracts are standard fare for lawyers whose job it is to “protect” their clients.

Kirsten Kowalski has raised the issue of direct copyright infringement when using Pinterest stating:
  • Pinning images may not fall into the category of fair use because they are not low -resolution thumbnails, but rather the same full resolution image as the original.
Many have pointed out that this presents a conundrum as Pinterest  discourages the use of its site for personal promotion (via your own images) and therefore it is hard to fathom how you could use the site without using other people's images.

N A Sims has written a wonderful article regarding the legalities of Pinterest and other social media sites that includes a more thorough examination of the subject of fair use.  She provides links for articles that explore this topic in more depth. 

Others were concerned by this clause:

“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…”  (this content gleaned from here).

Kirsten Kowalski raises some ethical issues and comes to the conclusion that pinning other people's images without first seeking their express consent is "morally, ethically and professionally wrong".  This falls into the arena of personal opinion and I will address it in my next post.

It is worth noting that since Kirsten's article was first published Pinterest sought her input into the reworking of the site's Terms and Conditions.  Since that time the word "sell" has been deleted, although Pinterest claims it never had any intention of selling anyone's content.  In this article from the Washington Post Pinterest states:   

“Pinterest is a platform for people to share their interests through collections of images, videos, commentary and links they can share with friends. The Digital Millennium Copyright Act (DMCA) provides safe harbors for exactly this type of platform. We are committed to efficiently responding to alleged copyright infringements."  (You can read the complete statement here).

They make it sound so benign, but is this just corporate sleight of hand, or is the danger of using Pinterest being overstated.  For all the alarmist articles out there there are an equal number of articles espousing the advantages of Pinterest.  In my next blog post I will reveal some of the pro-Pinterest arguments and where I stand on the subject.

Pin It


A Glass Artist said...

Required reading:

Copyright infringement lawsuit; Roni Loren

Marta Brysha said...

thanks Glass Artist. I think the photographer in this case should spend more time trying to promote his art and selling it than suing unsuspecting bloggers who are excited by his images and who respond immediately to requests to remove copyrighted images. He sounds like a total A-hole. Still, as you point out, it can happen. I guess it all comes down to whether you are prepared to take the risk or not. For this reason I urge everyone who wants to share their work to add Pin It buttons so that people can post their images without worry. Also, if the image is clearly a work of art, follow the image back to the original source and see if the artist wants the work shared.