Copyright, terms of use and Pinterest

Next in an occasional series on copyright and terms of use

Every so often, the subject comes up… what about Pinterest? Millions of people use the site — which describes itself as “a tool for collecting and organizing things you love” — and genealogists are among them. But the whole concept, both in terms of copyright law and in terms of Pinterest’s terms of use, has always seemed a little shaky to some people.

So what about Pinterest anyway? Do genealogists have anything to worry about if they use it?

The answer, of course — you could see this coming, couldn’t you? — is simple: it depends.

Both the strength of Pinterest and its greatest weakness is the fact that pinning something on Pinterest isn’t just posting a link from the site where you saw the item to Pinterest. As noted by Joshua Jarvis on the Trademark & Copyright Law blog,

Pinterest is about one thing – aggregation of third-party content. When a Pinterest user euphemistically “pins” a “pin” on a “pinboard,” she’s really “copying” a “full-size photograph” to “Pinterest’s servers.” Needless to say, the bright spotlight of copyright law is harshly shining on Pinterest: even a cursory stroll through Pinterest’s various user pinboards reveals that the vast majority of pins are copyrighted works, not in the public domain, and not licensed under Creative Commons or a similar free-to-distribute regime.1

That’s why there are copyright issues involved in the Pinterest business model and a genealogist’s use of Pinterest. Because one of the rights that copyright law gives to the original creator of that item “pinned” — copied — to Pinterest is “the exclusive right … to reproduce the copyrighted work.”2

Now Pinterest gets around that issue in two ways: the big one is the so-called safe harbor provision under the Digital Millennium Copyright Act. Under that part of the law, a business like Pinterest isn’t going to be liable if its users put copyrighted materials online on its site if it (a) tells them not to and (b) has a system for taking copyrighted materials down right away if the copyright owner complains.3

And that’s where the Pinterest terms of use come into play. Terms of use, usually, are “the limits somebody who owns something you want to see or copy or use puts on whether or not he’ll let you see or copy or use it.” 4 But Pinterest doesn’t own the content here at all, and doesn’t claim any ownership interest in what you “pin” — so for Pinterest, terms of use are the limits it sets on whether or not it’ll let you use its software and website.

So the second way that Pinterest gets around the copyright issue is that, in its terms of use, it provides that: “You … are solely responsible for … Content you post to Pinterest.”5 And, in its usage policy, you as the user have to “agree not to post User Content that: … infringes any third party’s Intellectual Property Rights, privacy rights, publicity rights, or other personal or proprietary rights.”6 (Intellectual property rights, in case you weren’t sure, do include copyright.)

And what does that mean exactly? Intellectual property lawyer Rick Sanders, writing in a blog post last year, put it this way:

“(P)inning” other people’s work without permission or license is copyright infringement, the only question being whether it’s also a fair use. This is because “pinning” actually involves making a copy of the image file onto Pinterest’s servers. It is direct infringement by you, because you’re the one doing the “pinning,” and it’s indirect infringement by Pinterest because it’s making your infringement possible. The difference between you and Pinterest is that Pinterest can avail itself of the DMCA safe harbor, and you can’t.7

In short, you can get sued, and you don’t have a defense. If Pinterest gets sued, it does.

Now Pinterest did change its terms of use last year to take out some terrible language that said if somebody did sue Pinterest because of something you did, you’d have to pay all of Pinterest’s costs in defending itself, including its lawyers. That language now exists only if you have a business account with Pinterest, not if you have a personal account.8

But you’re still on the hook for your own actions — for your own attorney’s fees if you’re ever sued and for any judgment a copyright owner gets against you.

So does that mean you should stop using Pinterest? No. It means you need to be careful and stop and think about what it is you’re pinning.

Some things out on the Internet are fair game; others are not. Things that likely won’t get you into trouble include:

     • things that are in the public domain;9

     • things that are covered by a Creative Commons license as long as you stay within the precise terms of the license;10 and

     • anything where you have permission to copy it — and that should include anything that has a “Pin this!” button or link on the site where you originally saw it.

And when it doubt? Ask. You absolutely can never go wrong asking for permission.


 
SOURCES

  1. Joshua Jarvis, “Pinterest’s Popularity Soars, But (P)Interesting Copyright Questions Abound,” Trademark & Copyright Law, posted 5 Mar 2012 (http://www.trademarkandcopyrightlawblog.com/ : accessed 18 Feb 2013).
  2. 17 U.S.C. § 106.
  3. See 17 U.S.C. § 512. And see the explanation at “DMCA Safe Harbors,” IT Law Wiki (http://itlaw.wikia.com/wiki/ : accessed 18 Feb 2013).
  4. Judy G. Russell, “A terms of use intro,” The Legal Genealogist, posted 27 Apr 2012 (http://www.legalgenealogist.com/blog : accessed 18 Feb 2013).
  5. Terms of Service,” Pinterest (http://pinterest.com/ : accessed 18 Feb 2013).
  6. Acceptable Use Policy,” Pinterest (http://pinterest.com/ : accessed 18 Feb 2013).
  7. Rick Sanders, “Pinterest and Copyright: Everyone Just Take a Nice Deep Breath,” Aaron Sanders Law blog, posted 19 Mar 2012 (http://www.aaronsanderslaw.com/blog/ : accessed 18 Feb 2013).
  8. Compare paragraph 7 of the “Terms of Service,” Pinterest (http://pinterest.com/ : accessed 18 Feb 2013), and paragraph 8 of the “Business Terms of Service,” Pinterest (http://pinterest.com/ : accessed 18 Feb 2013).
  9. As explained by the United States Copyright Office, “A work of authorship is in the `public domain’ if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner.” U.S. Copyright Office, “Definitions” (http://www.copyright.gov : accessed 18 Feb 2013).
  10. See generally “About The Licenses,” Creative Commons (http://creativecommons.org : accessed 18 Feb 2013).
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34 Responses to Copyright, terms of use and Pinterest

  1. What I don’t understand is how Pinterest and pinning something I want to share with my followers is any different than posting a link to a site on Facebook and having the image related to that link appear on Facebook? Is that image also being copied to Facebook’s servers? So why is there more of a focus on Pinterest than Facebook? It might be because Pinterest is more about visual content.

    One thing I cover in my articles and presentations on Pinterest is how to handle uploading content vs. pinning links to other sites. I follow the same recommendations that you’ve presented: it should be your own content, public domain content or you should have permission to upload someone else’s content.

    • Judy G. Russell says:

      Thomas, the big difference is that “pinning” actually copies the underlying image to the Pinterest servers in its entirety, full size. A Facebook link only provides a thumbnail and only a link to it, not a full copy of the original.

      • If I post on my blog an article that includes an image for which I’ve received permission to use, does that permission follow my article if it should subsequently appear on a site like Pinterest, whether or not I’m the one who pinned it there?

        • Judy G. Russell says:

          Yvonne, you’re going to hate this answer: it depends. What did you ask permission for? If you said use on your blog, then a second use may not be included. If you said use on your blog and in promoting your blog, you’re fine. It’s a little like when your child says “May I have some cookies?” and you say, “You can have one.” If he takes two cookies, he went beyond what you allowed.

  2. This is really good to know. I “pin” photos from blogs I like to my Genealogy Blog board as a way to let others know about the post, but after reading this, I will stop.

    • Judy G. Russell says:

      You don’t need to stop, Anne, especially if the person has a “Pin This” link on the page. And you absolutely can link to the blog. But just be careful.

  3. Celia Lewis says:

    Pinterest always seemed to have a shady aspect to it, and bulletin boards just aren’t my style, so I’ve avoided pinning anything. Your previous articles on copyright made it rather clear that “it depends” can be expensive or at least very troublesome. Thomas’ three points on how he pins/posts are very clear. Thanks for another excellent post explaining the world of the Internet and copyright law!

  4. Concetta says:

    Judy, this problem is absolutely rampant in the crafting community, where patterns are being scanned from magazines and designers (still under registered copyright) and being pinned on Pinterest. Its an uphill battle trying to get people to respect intellectual property rights over there (see NexStitch’s campaign here: http://pinterest.com/pin/139893132146147770/).

    I give people the same advice as your last points – only public domain, CC licensed, and permission-given images (via the Pin it button) should be pinned. I try my darnedest to do that myself as well (the occasional one slips in but I try to check and prune my pins monthly).

    Flickr has a creative commons image search that people can use. Wikipedia commons offers free images for use. I usually go through the list of public domain photos Wikipedia offers when I do a blog post or pin of my own: http://meta.wikimedia.org/wiki/Help:Public_domain_image_resources.

    Also, I often use the Google image search “Search by image” function to see where an image originally came from (not just someone’s tumblr or Pinterest) to see if they *actually* had permission to use it … or not. And I change my pins to go back to their original source, not someone’s tumblr account, which leads to another tumblr, which goes back to Pinterest, which goes to another tumblr, which finally goes back to the original source.

    • Judy G. Russell says:

      There’s still a persistent misconception, Concetta, that “it’s online so it’s free to use!” Um… no it’s not.

  5. I wrote to Ancestry about pinning census records, etc. from their site to Pinterest and got an interesting answer. Here is the blog post with that answer http://nutfieldgenealogy.blogspot.com/2012/04/pinterest-ancestry-and-copyrighted.html

  6. Lynne C says:

    It’s amazing to me that your blog post was about this today. As I opened my email, I received a notice from Pinterest that one of my pins had been removed because of copyright infringement.
    *******
    Here is a copy of what Pinterest said to me (minus the name and link they included):

    “This is to let you know that we removed one (or more) of your Pins as a result of a copyright complaint. The complaint was not directed against you or your Pin. It was reported by ####### and directed against another user who Pinned or re-Pinned the same content from the following address: #########

    While many copyright owners are happy to have their content Pinned on Pinterest, we recognize that some do not want their content to appear on Pinterest. Where, as here, a copyright owner notifies us that they want their content removed under the Digital Millennium Copyright Act (“DMCA”), it is our policy to remove the allegedly infringing Pin, as well as all other Pins that contain the same content if the copyright owners so choses.

    Again, this complaint was not directed at you, or anything you did. We just thought you’d like to know why we removed your Pin.

    Happy Pinning and thanks again for using Pinterest.

    The Pinterest Team
    Pinterest DMCA #ID 420011632″
    ************
    What do you make of that?

    Sincerely, Lynne Carothers

    • Judy G. Russell says:

      That’s the Digital Millennium Copyright Act in operation, Lynne: the copyright holder complained after seeing it pinned by somebody, and Pinterest did what the statute requires — took down the content everywhere on its system. Nice of them to let you know — it can help remind you to be very very careful about copyright when you pin something there.

  7. arlee barr says:

    Whether or not there is a Creative Commons notice on any photo, it is *still* up to the artist to decide exclusively where images go–pinterest circumvents this with their jolly steal anything attitude and poor copyright understanding, and useless “warnings”. The specious argument that someone is “promoting” you is thin ice and usually stated by those who don’t give a damn really.

  8. Darlene says:

    I’m glad you’re bringing this up as I am very nervous using Pinterest and try to, at least, track down the original source of every photo I re-pin to see if it has that Pinterest “pin it” button on it and it’s the original or authorized source. And, if I do use that Pinterest pin button, I make sure to use the image it allows me to use. But, someone suggested a “pin it” button for my browser and I don’t think I’ve used it. It allows you to use other images from the page being pinned. Sometimes other people use it to post photos of products I’m selling as an affiliate on my webpages and not my intro photo which is what usually comes up when you click an authentic “pin it” button.

    I do have to say that people who have pinned and re-pinned photos and products from my webpages have resulted in some sales and views on my end, so I don’t mind if people pin my pages, but am not sure about my affiliate products. So, I, myself, don’t do things like that.

    Even if a site has a “pin it” button, but the content owner makes it clear that they don’t want it pinned, I don’t do it.

    The thing is that this site is still going through the legal ringer and I just don’t feel as comfortable using it unless I’m posting my own work or work I have permission to pin.

  9. Janet W says:

    This comment is just not correct ” • anything where you have permission to copy it — and that should include anything that has a “Pin this!” button or link on the site where you originally saw it.”

    …..

    Individuals don’t necessarily place the Pin It Button on their site. For example, on Etsy, the Pin It Button appears on every single listing, courtesy of Etsy. Without the permission of the individual shop owner. Regardless of whether or not the button is wanted. And shop owners cannot opt out, disable, or remove it.

    The Pin It function can be added to a browser’s tool bar, and it can be added to your mouse’s right click function. Just because there is a Pin It Button, that does NOT imply permission.

    • Judy G. Russell says:

      You’re quite right, and the sentence should read “and that should include anything where the creator has added a “Pin this!” button or link at the site where you originally saw it.”

      • Janet W says:

        Judy, anyone can add a Pin It Button to their tool bar and/or the right click button on their mouse. And the presence of a Pin It Button does not imply permission. As I stated before, Etsy placed Pin It Buttons on every single listing in every single shop. No one was asked their permission. Your amended statement is still incorrect and serves to perpetuate the problem.

        If you have some time, you might enjoy reading this thread in Etsy’s forums. It’s basically the journey I took from Pinterest ignorance to enlightenment. https://www.etsy.com/teams/7722/business-topics/discuss/12030272/page/1

        • Judy G. Russell says:

          As noted, I agree with your general proposition, but you are missing the point of the amendment here entirely. If the creator of the item puts the Pin It button on, then it isn’t Pinterest or Etsy or Bing or the man in the moon saying “Pin This.” It’s the creator of the item. And whenever the creator of the item says “Pin This!”, then it is perfectly reasonable that that can be taken as permission.

          • Janet W says:

            In that specific situation, of course it’s fine (although I contend that person probably doesn’t understand that eventually their image will be floating around the Internet without link or credit thereby completely diluting the integrity of their work).

            Thanks for making the change to your post.

            Just another quick note…. Etsy shops are technically independently owned, and simply use Etsy’s selling platform. It would be easy enough for people seeing the Pin It Button on each listing there to assume that the individual shop owner placed the button there when, in fact, it was placed there for them without any warning or consent. Many Etsy sellers are not okay with this.

  10. Joe Beasley says:

    Bing is adding a pinit button to every image in its image search, even from sites that have the nopin code. Scraper sites are doing the same, and when pined from these sites the pin does not link to the creator, but to the scraper site

    • Judy G. Russell says:

      It’s very unfortunate that sites are ignoring the no-pin directions, that’s for certain.

  11. CK Caldwell says:

    THe assumption that a PinIt Button equals permission is one of the worse and most inaccurate excuses imaginable.
    In the descriptions accompaning my images on a well-known Print on Demand site I have prominently placed the following: “Please do not pin this or any of my images on Pinterest or any similar site.” Yet when those same images appear on Bing Images, right next to my disclaimer, Bing has placed a PinIt Button.
    On one Print On Demand site where I have a store the site has added a PinIt Button to every image and there is NO way I can disable it.
    In short, you absolutely CAN NOT depend on a visible PinIt Button equaling the copyright owner’s permission to pin their image.

    • Judy G. Russell says:

      Where the button appears on someone else’s site (such as a search engine), of course it can’t be relied on. If it appears on YOUR site, all bets are off: a user has every reason to think that such a button on your website means your permission. And your decision to continue selling your wares on a site that won’t let you disable the button is dicey on your part.

  12. Cindy S says:

    It’s unfortunate that many sites, even the search engine Bing, give the false impression that a pinit button is the same as permission. Often times, the owner of the copyrighted material has no option to disable the pin it button or add a no pin code. And they certainly don’t give Bing the right to allow pinning, but Bing has a pin it button. Pinterest’s terms say you have to have permission. Copyright law says so too. The pin it button would only really be permission if a person’s site stated it was, preferably under every image, or if you got permission from them to pin.

    • Judy G. Russell says:

      I repeat: Where the button appears on someone else’s site (such as a search engine), of course it can’t be relied on. If it appears on YOUR site, all bets are off: a user has every reason to think that such a button on your website means your permission.

      • Cindy S says:

        I know what you are saying, that the presence of a pinit button is implied permission. This is why people who don’t want their work pinned will use every available measure to remove the appearance of permitting it on any of their own sites.

        Suppose a person has an established ‘store’ on a site and there is no option to disable pinning, or pinit buttons appearance elsewhere on the site is confusing to pinners. Is the copyright owner supposed to give up their income, confuse their buyers and lose sales by constantly moving to new sites, (any of which may also install a pinit button at some point)?

        The law does not require copyright owners to continually flee infringers; it does require people to get permission before displaying, copying, etc.

        • Judy G. Russell says:

          I understand your concerns, and I do think this is an open question in the law. But my own response would be, yes, take down that storefront and use another one that honors your rights. Maintaining your business on a site that doesn’t honor your rights is a form of complicity.

  13. Shannon Sanchez says:

    I got a similar email from Pinterest yesterday. I am not clear on how to check the if we are allowed to pin. When I click on the pin, I’m either directed to a commerical website, tumblr, flickr, or some are uploaded by the pinner. I’ve looked carefully, and I don’t see anything to alert me either way as to whether a pin is safe or not.
    I REALLY appreciate this blog and was hoping you could give some tips on what to look for after you click on a pin and are directed to a website. The email I got was in reference to a re-pin from Tumblr. Almost all of my pins are repins. This is making me nervous about keeping open my account if I can’t tell which pins are safe.
    Thank you so much for your time and knowledge!

    • Judy G. Russell says:

      The problem you identify — how to tell what’s safe — is a very real one, Shannon, and the only advice I can give you is this: track the pinned item back to the originating website. If the originator says there it’s okay to pin it, or if there’s a pin-it button there, then you can have some degree of confidence that you’re doing so with the originator’s permission. Anything else carries some degree of risk, and you’re the only one who can decide if that’s a risk you’re willing to take. The whole question of the ultimate legality of this sort of pin – re-pin – re-re-pin concept is very much up in the air in my opinion.

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