What she found scared her so much, she shut down her Pinterest boards entirely.
Kirsten's investigation began after she saw photographers complaining about copyright violations on Facebook. She wondered why Facebook could get in trouble for copyright violation and Pinterest couldn't.
She browsed Pinterest's Terms of Use section. In it she found Pinterest's members are solely responsible for what they pin and repin. They must have explicit permission from the owner to post everything.
"I immediately thought of the ridiculously gorgeous images I had recently pinned from an outside website, and, while I gave the other photographer credit, 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," Kirsten writes.
Pinterest encourages repinning community photos though, so Kirsten found it hard to believe the act was unlawful. She continued to dig.
Kirsten turned to federal copyright laws and found a section on fair use. Copyrighted work can only be used without permission when someone is criticizing it, commenting on it, reporting on it, teaching about it, or conducting research. Repinning doesn't fall under any of those categories.The one glimmer of hope for Pinterest, Kirsten writes, is the outcome of Kelly v. Arriba Soft Corporation. In that case, a photographer sued a search engine. The search engine won because it used thumbnail images in its results, not the entire work.
Thumbnails aren't always fair use, however. They're only fair use if the necessary portion of the work is copied and nothing more. Pinterest, however, lifts the entire image from the original source which is not ok.
If that didn't scare Kirsten enough, the all caps section of Pinterest's Terms of Use did.
Pinterest writes:
“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.”
What's more, Pinterest places all blame and potential legal fees on its users. It writes:"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.”Basically, if a photographer sues you for pinning an image illegally on Pinterest, the user must not only pay for his or her lawyer, they must also pay for Pinterest's lawyer. In addition, the defendant must pay all charges against him or herself, along with all of Pinterest's charges.Kirsten likens Pinterest to Napster as an enabler of illegal activity. It wasn't just Napster that went down -- 12 year old girls who downloaded music were sued too.
She concludes:
"My initial response is probably the same as most of yours: 'Why [can't I pin their work]? 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...Bottom line is that it is not my decision to make. Not legally and not ethically."For more on Kirsten's findings, head over to her post at DDK Portraits >>
For more on Pinterest check out:
- A Non-Geek's Guide To Pinterest
22 Incredible Images That Show Why Pinterest Gets 1 Billion Monthly Pageviews
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“You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Site, Application and Services. Accordingly, you represent and warrant
Um. Uh-oh.
“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. InKelly 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.
In several places in Pinterest’s Terms of Use, you, as the user, agree that you will not violate copyright law or any other laws. And then there is this:
“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:
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