This week I would like to introduce my latest guest blogger Kirten Kowalski is currently general counsel for a corporation and is the proud mother of two and the owner of a photography studio in the northern suburbs of Atlanta, Georgio . She gives us some great insight about the Internets next Big thing Pinterest
Last week another photographer posted a question on Facebook asking if it was okay to pin your own work on Pinterest. I was surprised to see that many of the photographers who commented back admonished those who pin their own work and even cited Pinterest’s suggested rules of etiquette, which apparently discourage self-promotion. That same day, I participated in a thread on Facebook in which some other photographers were complaining about people posting their work on Facebook pages without the photographers’ permission. They were complaining that their copyrights had been violated and one photographer indicated that she was suing the infringer. Well, this got me thinking. What is the difference between posting another person’s photographs on your Pinterest page and posting another person’s photographs on your Facebook page? If the latter is so clearly a violation of copyright why isn’t the former? Being both a photographer who loves Pinterest (and admittedly had some really great “inspiration” boards full of gorgeous work from other photographers) and a lawyer who, well, is a lawyer, I decided to do some research and figure this out. And what I discovered concerned me. From a legal perspective, my concern was for my own potential liability. From an artist’s perspective, my concern was that I was arguably engaging in activity that is morally, ethically and professionally wrong.
“Liability? Morals? Ethics? Wrong? HUH???” you may be asking? “It’s just Pinterest! And Pinterest itself discourages pinning your own work – so whose work are you supposed to use?” Good question. Unfortunately, the answer is not what I wanted and the analysis in reaching the answer is quite complicated.
“Member Content” is defined as anything you post, upload, publish, transmit, etc. on the site. This includes pinning from the web and re-pinning right from Pinterest itself. I immediately thought of the ridiculously gorgeous images I had recently pinned from an outside website and, while I gave the other photographer credit right in my pin (how many of you do that by the way? Not that it makes it any more legal, just sayin’….), I most certainly could not think of any way that I either owned those photos or had a license, consent or release from the photographer who owned them. But did I somehow have a “right” to put them on Pinterest? “I MUST have that right,” I reasoned, “after all, this is what Pinterest is ALL ABOUT!”
So to the legal research I did go. (Now this is where it gets a little boring, but stay with me).
Federal copyright laws give the author of any copyrighted work (which includes photographs and copyright attaches automatically as soon as the work is created) the sole and exclusive right to publish and reproduce such work. So, basically, when you see a photograph that you love, you do not have any right to publish or reproduce that photograph unless you took the photo or got consent from the photographer to use the photo. The copyright statute does go on to say, however, that certain use of copyrighted work may constitute “fair use”, in which case you would have limited rights to use the copyrighted work. Specifically, 17 U.S.C. §107 states that “the fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching, scholarship or research, is not an infringement of copyright.” The “such as” language indicates that this list of uses is not exhaustive and the statute goes on to list the factors that should be considered in determining whether a use of copyrighted work is “fair use.” Those factors are:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
17 U.S.C. §107.
Okay, well that clears everything right up. Um, not so much.
I could go into the abundance of caselaw where these factors have been applied but nobody wants that, especially me. There is one case that is important here though and is likely the one upon which Pinterest is hanging it’s stylish hat. In Kelly v. Arriba Soft Corporation, a commercial photographer sued a search engine site claiming that the search engine’s use of thumbnail images of the photographer’s work constituted copyright infringement. In that case, the Federal Court of Appeals for the 9th Circuit held that copying a photograph to use as a thumbnail in online search results did not weigh against fair use (beware of this tricky legal language which does not mean thumbnails are ALWAYS fair use) if only a necessary portion of the work is copied. What the what? What does that mean? Frankly, it pretty much means that use of low-resolution thumbnail images by an online search engine is probably okay so long as the other factors considered don’t weigh too heavily against fair use. Ooooooohhhhhh. Riiigggght. I cleared that one right up for ya didn’t I?
Aside from the “maybes” and “so long as’s” and the whole factor-weighing thing going on here, the bigger problem in relying on this case as it relates to Pinterest is that Pinterest doesn’t use thumbnail images. Rather, when you upload or “pin” to Pinterest, you are using the entire, full size photograph in the same resolution that was originally posted by the creating photographer. The Supreme Court of the United States has already, in another case, stated that when a commercial use basically duplicates the original so as to essentially operate as a replacement for the original, market harm to the original occurs. In other words, why would someone need to see the original if they can see a duplicate just as good on Pinterest? With low-resolution thumbnails, the viewer must click through to the original post to view the full work. With full sized copies, that need is diminished. Think about it – how many times have you actually clicked through a photo on Pinterest to view the original site? Most of us just repin and move on.
There is a lot more to the legal analysis surrounding copyrights and fair use but the bottom line is that the law is still evolving and the case law is having a hard time keeping up with technology. With no clear guidelines from the courts, I was feeling very uneasy so I decided to go back to Pinterest and see what else they say about use of work that isn’t mine.
And this is where I got really nervous.
“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.” (yes, this is in ALL CAPS right in their TOU for a reason).
And then, there is this:
“you agree to defend, indemnify, and hold Cold Brew Labs, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Site, Application, Services or Site Content, (ii) your Member Content, or (iii) your violation of these Terms.”
This “defend and indemnify” stuff means that if some photographer out there decides that he or she does not want you using that photogs images as “inspiration” or otherwise and decides to sue you and Pinterest over your use of that photog’s images, you will have to hire a lawyer for yourself and YOU will have to hire a lawyer for Pinterest and fund the costs of defending both of you in court. Not only that, but if a court finds that you have, in fact, violated copyright laws, you will pay all damages assessed against you and all damages assessed against Pinterest. OUCH. Oh, but it gets better. Pinterest reserves the right to prosecute you for violations. Basically, Pinterest has its keester covered and have shifted all of the risk to you. Smart of them, actually since the courts are still deciding whether the site owner or the user should be ultimately responsible. Rather than wait for the decision, they have contractually made you the responsible one. And you agreed. (And by “you” I clearly mean “we”).
So, the next question is “how real is this risk and do I really need to worry about getting sued for something everyone is doing?” Well, my only response to that is to look at what happened with people who used Napster. Many users were, in fact, sued by music companies and artists for unlawful downloading of songs. Users like you and me and a 12-year old girl (not kidding). Also, if the commercial photographer in the Kelly v. Arriba case above was so willing to sue the search engine, how do you know he wouldn’t sue you – especially where, as here, the site has protected itself and left you holding the hot potato? I’m a lawyer and I see people suing for really dumb stuff every day. And, frankly, this isn’t “dumb stuff.” We are talking about intellectual property rights. Those of you who make your living as photographers know the importance here.
If you are still with me, and I’m sure you are regretting it if you are, in my humble opinion, the only “safe” conclusion here, for me, is to either get off of Pinterest or pin only your own work or work you have a license to use. Yep, I realize that is not what Pinterest is intended for and I also realize I’ve just taken all of the fun out of everyone’s favorite site. Boo, me. I hate it as much as you do.
Even in light of all of the above, what finally sealed the deal for me as I tried desperately to talk myself out of deleting my gorgeous inspiration boards, was when I thought of some of the photographers whose work I had pinned from other websites. Would they want me posting their images? My initial response is probably the same as most of yours: “why not? I’m giving them credit and it’s only creating more exposure for them and I LOVE when people pin my stuff!” But then I realized, I was unilaterally making the decision FOR that other photographer. And I thought back to the thread on Facebook where the photographers were complaining about clients posting photos without their consent and I realized this rationale is no different than what those clients argue: “why can’t I post them – it’s just more exposure for you.” Bottom line is that it is not my decision to make. Not legally and not ethically.
So, until Pinterest changes some things or until the law is more clearly established, I won’t be taking the risks involved in pinning other’s work. Guess my corkboards and tacks and ripped pages from magazines will live to see another day!
P.S. Because I am a lawyer, I need to add the following: This article is written based on my review of Pinterest’s terms and conditions and relevant law. It is not meant to serve as legal advice to you. If anything in this article concerns you, I encourage you to seek advice from competent legal counsel. DO NOT RELY on anything contained herein. Oh, and you have no right to reproduce this article or any portion thereof. But feel free to share the link!