Note: This is a follow up post to Pinterest: Change Your Terms or We’re Leaving and An Update on Pinterest

A couple days ago, we received a personal email from Aaron at Pinterest announcing their new Terms of Service that will go into affect on April 6, 2012. “We were very much aware of the ‘Dear Pinterest’ Pin you created, but we were not aware you were trying to reach us,” he said. “When we first launched Pinterest, we used a standard set of Terms. We think that the updated Terms of Service, Acceptable Use Policy, and Privacy Policy are easier to understand and better reflect the direction our company is headed in the future.” The rest of his message was kind and personal, and invited any questions or concerns.

After spending some time with the new Terms, there’s some good news and some same news.

The good news is: Pinterest will NOT sell your pins after all.
Pinterest’s original Terms stated that by posting content to Pinterest, you grant them the right to sell and exploit your content. Aaron said, “selling content was never our intention and we removed this from our updated Terms.” Selling my content was the scariest part of Pinterest’s old Terms and this changes everything. People sue over money, and since there’s no threat of money being exchanged, it greatly reduces the risk of getting into a lawsuit – if not completely dissolves it.

The same news is: Everything else in the Terms is about the same (just reworded).
Almost everything you need to know about how to use Pinterest is in this section:

“1. Sharing Your Content

d. Your responsibility for your content:

ii. To third parties. Pinterest values and respects the rights of third party creators and content owners, and expects you to do the same. 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 (defined below), 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 or the Pinterest Acceptable Use Policy. 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 on your boards. To learn more about copyright and fair use, please click here for some links to useful third party resources.” source

So what does this mean?

1. Only post what you have rights to.

In Pinterest’s original Terms, you agree that you own whatever you pin or you have permission to do so from the original source. With the new Terms, you’re basically agreeing to the same thing. If you post or re-pin something (whether it belongs to your or not), Pinterest assumes you have the right to post it and “THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICES, PINTEREST CONTENT, AND USER CONTENT REMAINS WITH YOU AND YOU USE THE SERVICES AT YOUR OWN RISK” (10. Limitation of Liability). So Pinterest asks that you be careful when deciding what you post, pin or re-pin. You are in the best position to know if the materials you post are legally allowed.

2. Same goes for re-pinning.

One question a lot of people have is about re-pinning a pin. If someone posts something they don’t own, and I re-pin it, can I get in trouble? Or does liability remain in the hands of the user who first posted it? The only place I see mention of re-pinning is: “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 on your boards.” I’ve specifically asked Aaron to talk more about re-pinning, because it’s a big gray area. But my current interpretation of this is yes, there is a risk in re-pinning something you don’t have the rights to display.

[Updated 3/28/12] Pinterest replied about re-pinning: “You should know first of all that when you “Repin” content, you are not creating a new copy of anything.  You’re merely creating a link to content that the original “Pinner” contributed.  We can’t give you legal advice, but in our view that is significant. (And, for example, if we get a takedown request from a copyright holder we will take down all links to the challenged content, including both the original Pin and any Repins.) Moreover, we believe that each person’s actions should be evaluated according to the nature of that person’s action and that person’s own intent. Thus, for example, if someone Pinned content for a bad reason and you Repinned it for a good reason, we think your Repin has its own justification.  (The converse is true if someone else Pinned for a good reason and you Repinned for a bad reason.)”

3. No take backs.

Another reason to be careful what you pin is because once you pin it, it’s out there – even if you delete your account:

“How long we keep your content: Following termination or deactivation of your account, or if you remove any User Content from your account or your boards, Pinterest may retain your User Content for a commercially reasonable period of time for backup, archival, or audit purposes. Furthermore, Pinterest and other Users may retain and continue to display, reproduce, re-pin, modify, re-arrange, and distribute any of your User Content that other Users have re-pinned to their own boards or which you have posted to public or semi-public areas of the Service.” source

So, is someone really going to sue Pinterest users?

Having said all this, I’ve learned throughout this experience that there’s not much Pinterest can do to change federal copyright law. Pinterest provides an online platform for sharing content, and you must be comfortable with the possible risk that comes with using the site. While Pinterest can’t change copyright law, they can change their terms to say they won’t sell your content – and they did.

People on Pinterest want to share things they love that are created by other people. If we only used Pinterest for self-promotion, the site would be far less magical. By removing the “sell” language from the Terms, I’m much less worried about getting sued. Once you remove the possibility of someone profiting from someone else’s work, I’m more likely to continue pinning things I like, and it shows Pinterest’s dedication to protecting its community.

Rick Sanders does a pretty nice job of summing it up in his article, “Pinterest and Copyright: So Why All the Fuss?” He writes:

“…If a photographer or graphic designer really wants nice Pinterest users to stop pinning her work, it’s a lot easier to send Pinterest a DMCA take-down notice than it is to enjoin (or even send demand letters to) dozens of those nice Pinterest users. If that photographer or graphic designer thinks she’ll recover damages from those nice Pinterest users, she’s delusional…”

On top of that, Pinterest has introduced a “No Pin” code that creators can add to their websites if they don’t want their content shared. It’s not perfect, but a step in the right direction.

In the end, it comes down to what you believe and how comfortable you are using Pinterest. Pin within your comfort zone, but by all means keep pinning.

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:

1. 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?
2. 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.
3. 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?
4. Will I be notified before Cold Brew Labs sells something I pin? And do I have the right to deny them from selling it?
5. How do I find out if something I want to pin is copyrighted or not?
6. 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?
7. 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.

Updated 3/20/12:
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:

[Begin Message]
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”.
[End message]

I’m pretty new to Pinterest myself, but Kim has used it for awhile. We both love it. But recently, we read an article about their scary Terms of Use. The word is slowly spreading and it’s made a lot of people 1) scared to use their account, or 2) delete their account completely, or 3) continue using it and think nothing bad will happen. At first we felt like #3, but after reading more about it and realizing a possible scenario that could easily happen, we felt like #1 and now we’re at the point of #2.

If you’re not sure what Pinterest is, it’s a website where you can ‘pin’ almost any content you find on the internet to your own personal ‘boards’. Think of it as a digital corkboard where you can display and organize all the things you love. Other people can view your boards and re-pin your pins to their own boards. Great idea, right?

It is, except there’s one problem. When you pin anything, you are agreeing that you own whatever you’re pinning or you have permission to do so from the original source. Your contract with Pinterest says:

“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 that: (i) you either are the sole and exclusive owner of all Member Content that you make available through the Site, Application and Services or you have all rights, licenses, consents and releases that are necessary to grant to Cold Brew Labs the rights in such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or Cold Brew Labs’ use of the Member Content (or any portion thereof) on, through or by means of the Site, Application and the Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.” source

But wait… there’s more. You’re also agreeing to let Pinterest sell anything you pin:

“…By making available any Member Content through the Site, Application or Services, you hereby grant to Cold Brew Labs a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content only on, through or by means of the Site, Application or Services. Cold Brew Labs does not claim any ownership rights in any such Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such Member Content.” source

And more. You agree to pay their legal fees:

“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.” source

And even more. You agree that the entire risk remains with you:

“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…” source

I know I never looked into Pinterest’s Terms & Conditions and I’m not sure if most have. And it seems like the website’s current popularity is a result of people pinning content “illegally.” All it would take for this to blow up is:

1. You pin a picture of a cat without permission.
2. Pinterest sells it to ABC Marketing.
3. ABC Marketing prints it on kitty litter boxes.
4. Cat picture owner sees kitty litter box in store and calls lawyer.
5. Lawyer calls Pinterest.
6. Pinterest calls you.
7. Bad things happen.

For the record, I am not a lawyer and these are my own interpretations of the terms. I encourage you to investigate for yourself and draw your own conclusions. I’m also not trying to attack Pinterest or give them a bad name because I love their site and they have a brilliant idea. The company is only trying to protect themselves “just in case.” And it would be nice if the law would use common sense in situations like these, but it’s pretty clearly written who is at fault here—you. And the law cares more about written contracts than common sense.

So, I’m asking all Pinterest users to pin this graphic to their boards to spread the word in hopes that Pinterest will change their terms. Otherwise, we’ll have to cancel our accounts.

And in case you’re wondering, I hereby give you full permission to use this graphic!

Other articles related to this topic:

• A Lawyer Who Is Also A Photographer Just Deleted All Her Pinterest Boards Out Of Fear
• Attorney Says Pinterest Needs To Change Its Digital Copyright Policy
• Everything Pinterest and Tumblr Users Need To Know About Copyright Law
• Pinterest – three reasons for not using it