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The Perils of Pinterest, and Other Cautions re: Posting on Social Media Sites

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Although the allure of low costs and large audiences makes Pinterest and other social media sites extremely attractive, publishers need to proceed carefully when considering or launching a social media campaign.

Social media Web sites don’t just allow sharing of information, ideas, pictures, and videos. Often, as we all know, they also let users upload, download, or copy works with relative ease. This free sharing of ideas, images, and other content generates exposure and excitement.But there are legal implications, particularly with regard to ownership and infringement of intellectual property.

Because of its design and methodology, Pinterest is especially problematic. Unlike Twitter and Facebook, which largely encourage sharing of a user’s personal experiences and photos, Pinterest encourages users to pin and use images and content created by someone else and located on someone else’s Web site or Pinterest board.

This often invites misuse of copyrighted works. As Angela West noted in an article in PC World, the “root problem is that Pinterest’s core concept is about repurposing third-party content, which is supposed to be properly licensed, attributed, or paid for before being pinned. But users simply aren’t going to take that extra step.”

Similarly, Jeff Neuberger referred to Pinterest as “the new Napster” in the E-Commerce Law Report, suggesting that 99 percent of the “pins” on the site violate Pinterest’s terms and conditions, which require the user to comply with all trademark and copyright laws.

This means you have two sets of issues to confront. You need to consider intellectual-property law implications when you post other people’s copyrighted content. And you also need to monitor Pinterest and other social media sites to prevent your own copyrighted works from being infringed.

When You Post Content You Picked Up

Copyright holders have various exclusive rights in their copyrighted works. Anyone who reproduces, distributes, and publicly displays the copyrighted material is an infringer unless they are authorized to use it or the use constitutes a fair use under copyright law (see “Fair Use and Other Aspects of Coping with Copyright Law” by Steve Gillen from the June 2011 issue, available via the Independent article archives at ibpa-online.org). Before you pin any content to Pinterest or post it on any social media platform, therefore, you need to ensure that you own or your business owns the relevant rights to that content, whether it’s pictorial or textual or both.

If you hold rights as a licensee, also examine the scope of your license. Often, licenses are limited to particular uses of a copyrighted image or work; often they exclude uses such as social media.

If you can’t get authorization to use content from the copyright holder, you need to evaluate whether your use of the content falls within the fair use exception or is otherwise allowed by Creative Commons or other such sites.

Also consider the terms and conditions imposed by the site operator before posting copyrighted content on Pinterest or other social media sites. Terms and conditions vary greatly among sites and can impact your rights and ability to maintain exclusive control over both your own copyrighted material and any licensed copyrighted material you have permission to use.

In response to numerous complaints from copyright holders and photographers, Pinterest changed its policy and terms of use earlier this year not only to require compliance with trademark and copyright laws, but also to encourage users to post only content that they themselves created or have explicit permission to publish. Essentially encouraging Pinterest users not to rely on fair use or nebulous forms of permission, these terms and conditions represent a major shift in Pinterest policy and provide some protection for copyright holders. But serious issues still confront Pinterest users.

The new terms and conditions require that anyone posting any content on Pinterest grant it a “non-exclusive, royalty-free, transferable, sublicenseable, worldwide license to use, display, reproduce, re-pin, modify (e.g., re-format), re-arrange, and distribute” the content and allow other users to “see, use, and/or repin” it.

Pinterest also retains the right to assign this broad license to anyone without restriction. In effect, you have to grant a broad license to Pinterest, to its nearly 20 million users, and to any other person or company to which Pinterest assigns its license. That is a risky venture because effectually you could lose control of your own or licensed works.

It’s also important to recognize that Pinterest’s terms and conditions place the risk of copyright infringement squarely on the shoulders of its users with this language:

You therefore agree that any User content that you post to the Service does not and will not violate any law or infringe the rights of any third party, including without limitation any Intellectual Property Rights, . . . publicity rights or rights of privacy. We reserve the right, but are not obligated, to remove User Content from the Service for any reason including User Content that we believe violates these Terms. . . . It is important that you understand that you are in the best position to know if the materials you post are legally allowed. We therefore ask that you please be careful when deciding whether to make User Content available on our Service, including whether you can pin or re-pin User Content to your boards.

You are solely responsible for your User Content and the consequences of posting or publishing it, and you agree that we [Pinterest] are only acting as a passive conduit for your and other user’s online distribution and publication. . . .

Relatively large monetary penalties and fees can be assessed in infringement cases, so, given the complex legal landscape and the ease of infringing intellectual property posted or pinned on a social media site, you would be well served by seeking legal advice before embarking on a social media campaign. To lower the risk of liability, you would also be wise to formulate and implement policies and procedures about use of social media in the workplace for yourself and your staff.

When You Post Content Your Own

The extremely broad license that Pinterest mandates may limit your ability to grant more exclusive licenses in your work to anybody else. And of course it is easy for Pinterest users to infringe your copyrights on content that you pin.

In response to the public’s concern that Pinterest “promotes” copyright infringement, Pinterest released a “nopin” code in February 2012. The nopin code is a snippet of HTML code that you can add to a Web page or to specific content to prevent Pinterest users from pinning your creative work.

When Pinterest users attempt to pin an image or other content from a site that has a nopin code, they receive a message stating that the site does not allow pinning to Pinterest.

The Yahoo-owned photo social network, Flickr, enacted a new procedure in February 2012 to allow its users to utilize the nopin code to block pinning of Flicker images. Simply selecting No in the user privacy setting causes Flickr to automatically enable the nopin code and prevent pinning to Pinterest.

Although the nopin code may deter theft of copyrighted material, users who are determined to pin an image can always take a screen capture or download a copy of the image and then upload it to Pinterest to get around the code.

And the nopin tag has its own issues. For example, do copyright or trademark owners have an obligation to use the nopin tag to prevent Pinterest users from pinning their content? Does the failure of a copyright or trademark owner to use the nopin tag grant an implied license? Could the failure to use a nopin tag impair a copyright or trademark holder’s ability to use the Digital Millennium Copyright Act’s (DMCA) takedown procedure to remove infringing images from Pinterest?

These important questions are likely to receive increased attention from the legal community and may well be the subject of litigation in the near future.

However they play out, you should routinely monitor social media sites such as Pinterest to ensure that your copyrighted or trademarked material is not being misused. Like most other social media sites, Pinterest has enacted procedures under the DMCA to allow the reporting and removal of material that allegedly infringes a copyright or trademark.

The snag, however, is that Pinterest and other social media sites rely on you to police and report activity that infringes your intellectual property.

Mary Ann L. Wymore, an officer at Greensfelder, Hemker & Gale, P.C., in St. Louis (greensfelder.com), represents media organizations, businesses, advertising firms, and individuals in the areas of communications, media, defamation and privacy, advertising, constitutional and technology law, unfair competition, and intellectual property. Formerly a journalist and currently also an adjunct professor of media law and electronic media law.

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