Since writing “Pinterest: Change Your Terms or We’re Leaving” on March 7, the response has been overwhelming! We’ve had over 400k+ people read our little post and 45k+ people have pinned the graphic, and those numbers are growing every minute. We never expected it to get so much attention, and we now feel it’s our responsibility to get some answers and ease some minds.
From all the responses, we noticed a common concern and that was—how can we use Pinterest without getting in trouble? A lot of you brought up some great questions… so we decided to go to the source in hopes of getting some answers. Here’s what we asked Pinterest:
- Pinterest’s Pin Etiquette says to avoid self promotion on the site, but its terms say we must be the sole owner (or have permission from the owner) to pin things. This is confusing. How does Pinterest suggest people use its site without getting in trouble? Can you give some examples?
- Is pinning something with a link back to the original source considered safe to pin? Or do I still need permission from the owner? People seem to think that supplying a link is enough, but the terms don’t read that way.
- Pinterest’s terms say that Cold Brew Labs has the right to license, sell and exploit member content. In what instance would Cold Brew Labs license, sell, exploit content? Can you give some examples?
- Will I be notified before Cold Brew Labs sells something I pin? And do I have the right to deny them from selling it?
- How do I find out if something I want to pin is copyrighted or not?
- If I repin someone else’s pin, and it happens to infringe on a copyright or end up being sold by Cold Brew Labs, am I liable for repinning a pin? Who is responsbile in this instance?
- Is it true that a copyright holder can bypass Pinterest’s “Report a Copyright Infringement” process and try to sue me directly?
We’re still waiting for a response, but Pinterest did respond to Kristin, the lawyer who also brought attention to Pinterest’s terms, in her post “My Date with Ben Silbermann.” Ben seems like a really nice guy, and it sounds like they’re working on some possible solutions. We love Pinterest and want to continue using it, so we’re hoping as much as you are that there will be a change happening soon.
We’ll keep you posted.
We still haven’t heard from Pinterest, but we received an email from a reader the other day who seems to know a lot about this stuff. While he/she did not include their credentials, there’s some helpful information here for all Pinterest users. And since we still haven’t heard from Pinterest, it’s nice to get some answers:
Pinterest can do whatever it wants with it’s TOS but it doesn’t change the Copyright Law. Only Congress can do that. So asking Pinterest to change their TOS doesn’t address your issues. In any case, the TOS are set up to protect Pinterest from copyright infringement, not users.
Pinterest’s Pin Etiquette says to avoid self promotion on the site, but its terms say we must be the sole owner (or have permission from the owner) to pin things. This is confusing. How does Pinterest suggest people use its site without getting in trouble?
Pinterest protects (or purports to protect) itself by relying on the “safe-harbor” provisions of the DMCA. So that if a user used the Pinterest site in violation of the rights of a copyright holder Pinterest is not on the hook. Copyright Owner would have to proceed against user.
How user can use the site is to (1) not use any content that is copyrighted without first getting permission, (2) if user does then hope they won’t be caught and if they are that copyright owner won’t pursue such an infringement and/or (3) if they are on the receiving end of a lawyer’s nastygram then hope user’s lawyer can present a winning “fair use” defense (which I decline to analyze here).
None of these concerns are directly Pinterest’s. They tell you not to use copyrighted content w/o permission. And if copyright owner complains to them, Pinterest will remove the content. But that doesn’t protect user from infringement claims — it protects Pinterest.
Is pinning something with a link back to the original source considered safe to pin?
That is something you will have to ask your own lawyer. In my view it’s problematic at least as I understand how Pinterest works (copies the original photo to Pinterest server).
Or do I still need permission from the owner?
See above. In my view it’s a lot safer. Again, ask your own lawyer. She may feel it does not infringe and/or there would be a “fair use” defense.
People seem to think that supplying a link is enough, but the terms don’t read that way.
As I noted above, Pinterest is not going to be able to tell you that linking back is OK under the law. No way are they going to say that. I can’t copy your photo to my server and merely link back to you and protect myself from infringement. I have copied your work to my server w/o your permission – I have violated your exclusive right to copy. Once I display your photo publicly I may also have infringed your exclusive right to public display.
Again, I have to have a license or a defense such as “fair use” (which is usually a loser and which I decline to analyze here but which you can research yourself).
Pinterest says what it does to protect Pinterest — they have the “safe-harbor” of the DMCA to rely on. You have to comply with Copyright law yourself. And they are telling you to post your own material or, if using other peoples work, not to post w/o permission.
Pinterest’s terms say that Cold Brew Labs has the right to license, sell and exploit member content. In what instance would Cold Brew Labs license, sell, exploit content? Can you give some examples?
If I recall, like most sites, they add the important qualifier to the effect “only in connection with the Service.” In other words, they need your permission to exploit what you upload to them to the extent necessary to provide whatever it is that Pinterest does. That’s usually how these TOS work but I’m too lazy to go back and read it.
Incidentally, you can not transfer rights to Pinterest you don’t have.
How do I find out if something I want to pin is copyrighted or not?
The short answer is almost everything you find online that was created after March 1, 1989 is subject to copyright. No notice of copyright is required either. Before that date it’s a longer answer.
Statistically, most copyrighted work is not registered with the US Copyright Office which would preclude copyright owner from suing you in the US until they did register and if they register after infringement it substantially reduces their ability to collect damages and they would not be eligible to have infringer reimburse their legal fees. But you could be unlucky about who you infringe and whether they register their work. And obviously pro photographers are more likely to register their work.
If I repin someone else’s pin, and it happens to infringe on a copyright or end up being sold by Cold Brew Labs, am I liable for repinning a pin?
Probably technically you could be infringing (I don’t know enough about pinning/repinning). But see above about possible fair use and also registration.
Is it true that a copyright holder can bypass Pinterest’s “Report a Copyright Infringement” process and try to sue me directly?
Sure they could. Assuming “Pinning” is infringement. Pinterest may be harder to go after. Pinterest will attempt to assert a “safe-harbor” defense to infringement. The user has no such defense. The defense is designed to protect ISPs (Pinterest here) from users that post infringing material. It is not designed, obviously, to protect such user.
The copyright owner can always proceed against the actual infringer. But for any particular copyright owner it may be sufficient (and certainly less costly and time-consuming) to simply ask Pinterest to take-down the content.
The above is not legal advice. But I thought your questions interesting and perhaps Pinterst will give you their views. Or we can wait for the issue of Pinning to get litigated and hopefully you will not be the test case.
You should be commended for actually caring to think through these issues. Most people couldn’t give a hoot if they infringe copyright and then when they are found out they claim that they didn’t know (not the best position for a design studio to take in my view).
Your cat scenario is extremely unlikely:
You pin a picture of a cat without permission.
Pinterest sells it to ABC Marketing.
As I said earlier, Pinterest (if I recall, and I usually do) doesn’t take any rights in what you post apart from what it needs to provide the Pinterest Service. They are not selling cat photos. They are not in that business and more to the point they do not check out your rights to photos that you pin. That is on you. They look to the DMCA to protect them (at least against Copyright Infringement).
What could happen is you pin some major money making photo of some artist who is none to pleased. They sue you. Directly.
Eventually someone might sue Pinterest to test whether their business model really falls within the DMCA “safe-harbor”.