There’s a lot of internet buzz these days about new “social media” site Pinterest.com.  What is Pinterest, you ask?

Pinterest lets you organize and share all the beautiful things you find on the web. People use pinboards to plan their weddings, decorate their homes, and organize their favorite recipes.

Best of all, you can browse pinboards created by other people. Browsing pinboards is a fun way to discover new things and get inspiration from people who share your interests.

Basically, the site provides a place where the user “pins” images and text that they have found on various websites of interest.  This information can be socially shared with friends, or used as sort of a remote “bookmarking” system.   Where do these image “pins” come from?

A pin is an image added to Pinterest. A pin can be added from a website using our bookmarklet or you can upload images from your computer. Each pin added using the bookmarklet links back to the site it came from.

The website provides a search functionality, essentially making it something along the lines of early Yahoo.  An editor curated search engine of links, but where the “editors” are anyone with an account.  The question today, however, is “Does Pinterest infringe upon copyright with its service?”

Well, Does It?

This question goes to the heart of how Pinterest works.  When an image is “pinned”, Pinterest literally copies the image to their servers.  Full size.  Let’s look at an example.  While writing this, I went to Pinterest and picked an image at random, and tried to find the original location of that image.  This is the image, and it is on a blog:

If you visit the blog, you will not see any copyright notice, but absent that, you have to assume the image is protected.  All works are generally protected upon creation, unless otherwise noted.  My above inclusion would generally fall under the “fair use” guidelines, being both editorial in usage, as well as being an inline display from the host’s servers.

Now, using Google Image search, this image can be found on Pinterest in several different locations.  Here is one where they have pinned directly from the original blog page:  http://pinterest.com/pin/129830401727387032/ .  You can tell this, because at the top right of the image, it says the source location of the “pin”, in this case, Mmmm is for Mommy.  Some of these are “re-pins” of an original “pin”, some are different “original” pins.  Each of these can then be “re-pinned” again and again to different users.  In any case, you can see that the Pinterest link above has a URL for the image on the Pinterest servers: http://media-cdn.pinterest.com/upload/129830401727387032_xzgJPpGR_c.jpg

Why is this important?  Because any images being “pinned” from the web are being copied to the Pinterest servers for display through their interface, at full size, as well as a version created at thumbnail size.  Is it copyright infringement to copy others’ works without their permission for your use?  Let’s check the definition of copyright infringement (from Wikipedia, for a easy to read version) …

Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder’s exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works. It often refers to copying intellectual property without the creator’s written permission.

It sure sounds like copying people’s photographs without authorization would be copyright infringment.  Yet, Pinterest seems to be encouraging people to scour the web, pinning (copying to their servers) artwork created by others: “Pinterest lets you organize and share all the beautiful things you find on the web.”  In fact, Pinterest requires that users hold the appropriate rights to all content they “pin” (even though they know that’s not really going to occur) and try to shift blame to the user:

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.

There is some precedent for search engines and image display.  In Perfect10 vs. Google, Perfect10 argued that Google was framing (displaying inline) its content that Google found on infringing websites.

After an eight-page discussion of the framing issue, the court found that the relevant question in whether Google was guilty of displaying and distributing the full-sized images due to framing others’ content was whether it hosted and physically transmitted the content itself (the “server test”), rejecting P10′s argument that the relevant question should be whether the content is visually incorporated into the site (the “incorporation test”). Since on the physical level, Google only provided an instruction for the user’s computer to fetch the infringing pages from servers not under its control, the court found that P10 was unlikely to succeed on this point, and so denied its request for injunction.

Taking those thoughts into account, since Pinterest hosts and physically transmits the infringed content itself, as well as incorporating it into their site, it would seem that the court would side with the copyright holder.  However, Perfect10 vs. Amazon/Google found that creating thumbnails of copyrighted works for search purposes was fair use.

In reaching this result, the court relied largely on the transformative nature of the thumbnails Google created, which, by facilitating the public’s ability to search the web for images, serve a different purpose than the original images, which are designed to entertain.

In this case, though, Pinterest is not only facilitating an ability to search, but also to entertain.  Users have said Pinterest is highly entertaining, extremely addictive, a greate time-waster, etc.

Pinterest does, however, provide a remedy to copyright holders who find their works hosted on Pinterest:

If you are a copyright owner, or are authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Site by completing the following DMCA Notice of Alleged Infringement and delivering it to Pinterest’s Designated Copyright Agent. Upon receipt of the Notice as described below, Pinterest will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged material from the Site.

Which aligns with the US Copyright Office’s regulation that:

A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider -

(A)(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and

(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

So, It’s Ok For Them To Do This?

Well, it certainly seems that since they have a remedy for copyright holders who find their works hosted, copyright holders should be pleased.  However, is it the job of a copyright holder to actively police millions of Pinterest pages for their works, and is it fine for Pinterest to knowingly encourage actions that are largely going to result in an infringement?  From here:

Copyright infringement is a tort. So is enabling or inciting another to infringe, at least when the enabler knows that her conduct will result in infringement. Decisions dating back several decades recognize that one who supplies the means to infringe, and knows of the use to which the means will be put (or turns a blind eye), can be held liable for contributory infringement.

Pinterest is supplying the means to infringe (tools to copy works to their servers) and knows of the use to which means will be put (surfing the internet for works to copy, which are mostly protected works).  Also from the page above:

The Court set out three elements probative of intent to induce infringement: (1) the defendant promoted the infringement-enabling virtues of its device; (2) the defendant failed to filter out infringing uses; (3) defendant’s business plan depended on a high volume of infringement

Again, Pinterest does promote the ease of use of the “device” to copy works to its servers.  I don’t know of any method it is taking to filter out infringing uses.  And, like any internet business, their plan likely depends on a high volume of infringment.  The more users creating boards of “pinned” works, the more interaction and the happier a social network it can create.  At this point, no one is quite sure how Pinterest makes money, but you can bet that sooner or later they will find a way to monetize off of all these people who have put infringed upon works onto the Pinterest servers.

If you bring up the infringement issue with people, they will likely say things along the line of “Oh, it’s ok, because it’s so much fun” or “I’m good with it – it’s like free advertising” or “Not a problem because they link to the original page”, none of which is the point, IMO, and none speak for every person who is being infringed upon.

This subject is of interest to me, because as a stock photographer, I am worried that Pinterest is using my works for commercial gain, without my permission.  At the least, it is relatively simple to find images they have copied from iStockphoto, Dreamstime, Shutterstock, Corbis Images and Getty Images, which, in general, is against the terms of use of the sites ( I have been told Getty Images/iStockphoto is trying to work out some arrangement to allow this ):

“The Materials may only be used and copied for your own, non-commercial, personal or educational purposes, provided that the Materials are not modified and that copyright and other intellectual property notices are not deleted. You may not create derivative works from or otherwise exploit the Materials in any way.”

I’m not a lawyer, but I have a feeling that eventually Pinterest is going to run into some sort of legal trouble for their business plan.  What do you think?

edited to add: Here is another article I wrote after an actual incident on a Pinterest board.

edited again: Another article of mine with links to thoughts from others.

 



 

 

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94 Responses to Pinterest.com and Copyright

  1. Jani Bryson says:

    People are only confused about this because we’re speaking of images….if people were posting, in entirety, copies of e-books or music they love (but linking back to iTunes or Amazon), the violation would be clear as day. Copyright protection extends equally for imagery as it does for books or music.

    There are two additional bothersome issues for me:
    1) Pinterest is “teaching” its users (and there are many, a large number are young) it’s okay to grab from the internet as long as you link back to the source — opening a huge can of worms;
    2) The agreement I am in with istock may allow them the right to offer my copyrighted content for free to Pinterest and other entities (I must relinquish control of my copyright protection to be a contributor with them).

    Finally, I’ve always known that there’s no need to buy a cow when the milk is free. Links back to the source will not serve to increase sales, but instead to increase unmitigated “grabbing” of content.

    • Jani Bryson says:

      I should add, that I agree the site is great fun. And, I’m not lobbying to shut them down. Many users post their own imagery and share their own creative ideas. Go that. What I am asking is for Pinterest to prohibit, and not tolerate, copyright infringement in any way.

      Most fun things have rules to prevent harm to others (and lessen liability). Pinterest should be no different. The statement that exists in their rules or “Etiquette” alluding to the prohibition of copyright infringement needs to be more than lip service. It should be highlighted and enforced.

  2. Ted G says:

    Excellent article. Logical and complete flow. Excellent summation. Very clearly infringement IMO when the IP is not owned by – or explicitly authorized by an owner – to the “pinner”.

  3. Fred Voetsch says:

    This is a fascinating discussion but with the rate of change of technology in society these days by the time this issue makes it to the courts it may be of little consequence. For instance, Google’s new image search that allows you to instantly find images on the web that match your own was a huge shift of power towards the copyright owner. If copyright owners use this technology the way they should they could instantly make life miserable for these big companies that take advantage of copyright law.

    Will they? I doubt it.

  4. If you don’t want your stuff to be taken, stop posting it online or in stock photo libraries. No amount of legislation will change this. We need a new business models, not more laws. Photographers are slow to realize that stronger IP laws will further constrict their ability to sell what they shoot. The recent IP decision in London is very concerning. Do you want to live in a world where you have to pay me $X.XX to use certain type of lens or framing technique? It’s sounds absurd, but clearly were headed for that kind of craziness.

    • Sean says:

      Sorry, I just don’t agree that we all need to hide in caves so that our works aren’t used improperly. There’s a difference, imo, between using the actual work in a manner which takes away from the creator’s ability to use that exact work to make money, and using a work, like a chair, in another work, like a photo, that doesn’t harm the sales of the chair. ie., I’m not copying the chair, making my own chairs, taking away their sales. etc.

  5. Adam says:

    That’s interesting. So I guess you’re not a fan of tumblr then either? They take essentially the same approach.

  6. John says:

    When I’ve tried to find the original creator of repinned works on Pinterest, I have had great difficulty in doing so. I find the concept deeply disturbing.

    • Garbop says:

      +1 for this comment. Trying to find original creators is nigh on impossible for a high majority of ones I’ve attempted to find as well.

  7. Melissa says:

    As a photographer, I’m having this problem right now with Pinterest. I found one of my pictures in use without my permission and asked kindly to remove it. Unfortunately, the original pinner is a disgruntled person and started bashing me instead. She feels that any picture for public viewing is a free-for-all and has gone to sad measures as to creating a whole board of my pictures (screenshots, mind you). Pinterest has made it VERY difficult to get these images removed because you have to actually MAIL them a letter with all copyrighted info. Contacting them via Internet about it isn’t optional. How lame is that??? The comments about posting books or even a movie are true!! people wouldn’t dare post anything like that because they see that as something “big”, but a picture, someone’s livelihood, is nothing to them. Very sad.

  8. Thanks for pointing out that the difference between Google Image Search and Pinterest is that Google does not copy the work of others’ onto their servers. If it was music that was shared through Pinterest it had been shut down right away by the music industry!

    I can totally see the benefit of Pinterest for e-commerce sites (that’s what it also was originally intended for if I remember correctly) or for blogs who want to generate traffic. Anyway, I don’t want my work (whether it’s an image I have taken for a client or a snapshot I shared on my blog) shared on a site I can not even login by someone I don’t know.

    If I don’t want my images to appear in the search results of Google Image Search I can remove my sites from their index. I have no control what is “pinned” on Pinterest by others. And Pinterest does obviously not take care if these images are copied to their site with permission or without.

    Pinterest may not make money by charging paid pins or anything (yet) but they gained millions of venture capital and are reported to be worth something in the three-digit million dollar range.

  9. [...] week, I took a look at how the new social networking site Pinterest encourages and facilitates copyright [...]

  10. Ian Spiers says:

    Great post! You’ve clarified key points of concern while promoting the broader conversation of copyright and IP to the average reader. Thank you.

  11. I think it’s interesting that the music industry’s way of dealing with the problem was not to adjust their monolithic business model at all but to bring the weight of it’s commercial might to bear on the politicians who have no understanding of how the Internet really should work and to penalise the end user. The problem there was that they had been fleecing both the originators and the end users for decades and had the political clout and the money to bring their guns to bear on the perceived “problem”.

    Photographers are in a slightly different position but facing the same issues ultimately. Whilst the major players like Getty, Alamy, Istockphoto, etc have the money to influence the situation and apply pressure to their advantage, it’s the small players that have to face the problem of how to deal with copyright infringement in a way that ensures that they don’t lose out financially.

    The first question to ask oneself is, “do I lose out financially by people accessing my images in these ways?” It’s the same question to ask about so-called illegal downloading. Would the individual have bought the music if they couldn’t access it for free? How much would it actually be worth to them in financial terms? In which case, how can we as photographers adjust our business models so this works for us? “Have I lost any income because of this?” And can I turn the problem into a mechanism for free advertising, or something else that is to my advantage instead? Would this benefit me more in the end and ultimately be a means of generating more revenue in the right areas? There are no easy answers.

    We shouldn’t fall into the trap of thinking that those who are using technology in new and exciting ways are at the same time stealing bread from our real or virtual children’s mouths. They might well be doing exactly that but it could also be a false perception. New technology and the use of that technology requires new approaches and new models, not a shoring up of old, crumbling barricades.

    • Sean says:

      “Would the individual have bought the music if they couldn’t access it for free?” I’ll speak for myself. 9 times out of 10, I wouldn’t buy the music I wanted to hear. I’d either dig for my old cd to rip it, or go without. But iTunes is so dang easy to pay $1 and get it. No trouble with torrents or anything. However, (speaking for microstock images, for example) the images are already $1. And they still are helping themselves. Just because it’s a “victimless crime” doesn’t make it any less wrong to take something. I’d love for there to be a personal web use model costing a few cents per use that gets aggregated. Unfortunately, people would take advantage of that and use the images for other things.

  12. Myows says:

    I fully agree with you. It will be interesting to see, now that Pinterest is out of the closed Beta and on everyone’s radar, where this goes. It is clearly a copyright infringement and a huge source of orphan works… the web still has so far to go to be both fairly regulated and free.

  13. Hi Sean,

    Good blog post. I’m wondering if I might share it on my Facebook page?

    Suzi
    SLM Creative Design & Associates

  14. Ann Gusiff says:

    Sean, thanks for a thoughtful and thorough post. I am working with several of my small business marketing clients right now on Pinterest and how to use the site effectively to create relevant content for their clients. Creating boards to spotlight their creative influences or what they see as upcoming trends is a great value-add for their clients.

    I appreciate your take on the copyright infringement and will pass this along to them. I suppose that as users, we should do our best to ensure that we are pinning something from its original source. In doing so, we’d theoretically be allowing those who click on the pinned photo to be linked to a site which would have a higher likelihood of providing information about the photographer. And with the importance of inbound marketing, we want those clicks. (Yes, I do realize that many photos will never be able to be attributed to the photographer, but this at least seems like a higher road for a user to take, right?)

  15. Louise Mathews says:

    Sean, Very fine article on a complicated issue. During a review of pinterest and all legal disclosure (Thanks for an affirming interpretation) and an article’s mention of their revenue source. It is Skimlinks, an affiliate internet link tracking mechanism. It has over 17,000 affilitates and each time a Pin is set and then the link later clicked (which must result in a purchase), a commission is received by Pinterest with a small cut for Skimlinks.
    The business ethic that comes to my mind is how Pinterest’s commission can be pulled by Skimlink’s from a pinned “source” without contractual agreements with the “source”. Considering the number of affiliate marketers online, some concern may awaken, at the least, the Board of Equalization and the IRS.

  16. So no one here has a “morgue” file of images that they’ve pulled from magazines and other sources of inspiration w/o the copyright holder’s permission? This is essentially what Pinterest is (or at least what I use it for). It is not for commercial gain it is for my own personal inspiration and delight. Most folks are like me, using Pinterest to share fun things, not to make a profit. Therefore it falls fully under the “fair use” clause for copyrighted works.

    There’s a link back to the original, which is indeed enough to be considered credit to the original author, plus your work is being marketed around the world for you, for FREE. This is no different than if you shared your link on Twitter or Facebook and a friend of a friend of a friend RT’d or shared the link with their friends. Do you harass them to take down links of your work? Geez, I’m exhausted just thinking about trying to track down all those links. I don’t know about you, but I have better things to do with my time.

    I, too make my living by creating images for a living. I don’t see what the BFD is. It’s not like anyone is taking your work and making prints of it or selling them. These are LOW RESOLUTION web images. No one is stealing anything…no money is changing hands on the part of the user, and no one else is trying to claim your images as their own.

    I love the service and if you were to actually use it instead of griping about, you might find it useful to. You’re getting credit for your images and free marketing. You get to see work by some cool people and maybe even share some of you own. This is the future, either use it or don’t. But there’s no point in getting all worked up about it.

    • Sean says:

      Hi Nicolas. First off, that isn’t an apt analogy. A magazine is sold to you for personal use. You are not claiming copyright or ownership of the images within, nor are you giving them to someone else who will use them for commercial gain (Pinterest is there to make money for themselves, whether you realize it or not, and they do this by filling their servers with infringed works). So, it does not particularly fall under the “fair use” clause (for several reasons – check out #6 here: http://www.publishlawyer.com/top10.htm.

      Second, a link back, which may be seen as a type of “credit” does not free you from the infringement (see #3 in the link above).

      As I mentioned in the article, your perception that everyone should be thrilled they are receiving marketing for “FREE” is incorrect and irrelevant. It is up to the owner of the copyrighted works as to whether or not they want to participate in any “FREE” marketing, not yours.

      They are also not “LOW RESOLUTION” images. Google uses small thumbnails in their indexing results. Pinterest takes the full resolution image that the user passes to them and stores that on their server for redistribution (which ultimately, again, benefits their building of a social network, which in turn benefits their pocketbook). Again, your link analogy is not appropriate.

      If rampant theft and infringement of creative artworks is the future, I can’t see at all why you’d be so excited. All Pinterest is doing is training its users that any image on the internet is free for the taking and use as they see fit (see #5 in the link above).

      • It most certainly is an apt analogy. Pinterest is provided for my personal use, the same as a magazine. Whether or not there is cost involved is not relevant, the magazine could have been given to me by a friend.
         
        Where is this “theft” you speak of? The original image exists on the internet. The images on your website are uploaded to at least one server that is not yours (unless you are a big co. and have your own serves). When I visit you site, that image is downloaded to my computer into my web browser’s cache. When someone adds an image to their Facebook (not sure if happens when the share a link), that image is added to that user’s image collection on Facebook’s servers. The internet is a vast land and it works because there is no one physical location where it exists. Pinterest is not claiming your copyright, nor is anyone who is pinning or repinning your images. So what exactly is being stolen? That gorgeous sunset? These are not clients taking images for use, these are normal everyday people doing what people do: sharing cool stuff they find along the way.
         
        What about people who don’t use Pinterest and just right click the image or grab a screenshot? Are all those folks on Twitter are copyright infringers too? What about Facebook? Do you hunt them down too? Where does it stop?
         
        Unless you are posting your original 300 dpi images on the internet, they are low resolution. The max I ever post is 1024px wide at 72dpi, this is not print-level quality. No one is going to be making posters from it. Or they will be very disappointed if they try.
         
        I understand you want to protect your images. But Pinterest is not a threat to you or any other photographer. It is a sharing tool. Clients are not going to start downloading images from Pinterest and making brochures from them. (And if that happens, I’ll stand by you on that one.)

        Sharing is the future of the internet, and you need to get with the program. Having a death grip on your low-res internet images isn’t going to win you friends. I’m taking about being reasonable in your responsibility as the copyright holder. Selling awesome images to clients who pay for your work is your business, not worrying if a dude in Kansas pinned your shot because it makes him happy.

        (*for the record, I don’t work for Pinterest, but I think their service is a valuable tool.)

        • “Clients are not going to start downloading images from Pinterest and making brochures from them.”

          It happens ALL THE TIME that people download images they found anywhere on the web and use it without permissoin for their commercial brochures, websites etc. Just because it hasn’t happened to Sean it doesn’t mean it’s not happening.

          Actually bloggers do this all the time…but for some reason bloggers are not viewed as (potential) clients….

        • Gail says:

          There is a company already advertising to make posters etc of peoples pinboards…..at a cost. The start of a whole raft of money making ventures possible using copyrighted images.

          Also the first pin may link back. But as it is repinned the connection is lost.

          There are people out there losing considerable traffic because Pinterest posts a large enough photo, that people don’t go back to the original site as they would with a thumbnail.

          Pinterest most certainly is a threat to many website owners and their livlihoods.

          You should only share what is yours to share.

    • Kal says:

      People have been selling my art that they printed off Pinterest. AT screen res. WITH my signature. Looks like crap. It’s illegal. It’s easy.
      It’s a huge deal for me.

  17. [...] uniquely wrong with Pinterest’s approach. Sean Lock in several informative blog posts tackles the issues of whether Pinterest is protected by copyright law since they don’t actuall… as well as if fair use protects Pinterest.  In both cases Sean believes that Pinterest is in [...]

  18. Kal says:

    Sean. LOVED this article. You kind of blew my mind right open. Thank you for explaining this so clearly. We should talk further.

  19. alexandra says:

    I want to thank you for these posts you’ve written. I want to love Pinterest, but it’s hurting a lot of people I respect. If people want to right click and save something, so be it. That’s a risk we take placing content online. But unless that person turns around and emails the screen capture to a couple hundred people who keep emailing it to a couple hundred people and so on, then you can’t compare. Pins drive an incredible amount of traffic, and very often NOT to the source.

    The only way the library analogy works is if you were to go to the library, copy pages of text, place them on your website for people to enjoy and either not cite the author or claim them as your own, while making ad revenue from traffic driven to read these “borrowed” works.

    As for copyright, people are taking things off Pinterest for use online and in print all the time (I’m quite sure that includes brochures, ideal because small images work well).

    Those who don’t think it’s a big deal are uninformed about how pinned content is used.

    • Sean says:

      Keep in mind that Pinterest actually has an “embed” button next each image to provide code to put in a blog post that only links back to Pinterest and credits only the Pinner. They actually picture themselves as a giant repository of blog fodder.

      • Kal says:

        Sean. Thank you for this article. Everything this week has opened my eyes to what I could feel, but not put my finger on. I’m sharing your article like crazy. What else can I do?

  20. Amanda says:

    I just have to say that even though I agree with most points made in your article, it feels a little bit like this has all turned into a witch hunt for Ben Silbermann (the creator of Pinterest.) And I feel it needs to be said that he is perhaps unfairly being made out to be some sort of image stealing troll, purposely infringing upon all our rights for his personal gain. That is one of the things that really bothers me about these discussions taking place all over the internet. I, of course, do not know Ben personally. But I have heard from many people who met him and spoke with him at different points in the process of creating Pinterest and it has always seemed to me that he only had the best at heart. I believe he intended to create a website that would encourage shared creativity and inspired living and that is what he has done, whether it is flawed or not. And we must also acknowledge that he himself can not be held responsible for the errors of Pinterests users in how they “pin” to the website. We all must take some responsibility too. (linkwithlove.org)

    Again, I will say that I don’t disagree that things need to be changed and tweaked in order to protect the creative rights of those who provide the images we all love to “pin” and share… and perhaps finding a way to not burn those images onto the Pinterest server would be a good start. But to call into question the intentions and motivations of Ben Silbermann and Pinterest as a whole is, IMO, very unfair.

    That’s all for now. : ) Thanks for letting me speak my mind.

    • Sean says:

      Not knowing the creator, I can’t argue the initial intent, but I think they (Pinterest) and he (the guy that runs it) need to take responsibility for the issues that their technology has brought up. You can’t go around saying “we respect copyright” (via TOS) and then say “pin (copy) whatever you like, from anywhere!). IMO…

      • Amanda says:

        I guess the question is whether or not they are working on a resolution. I personally don’t know. I would hope so being that Im sure they’re aware of it. Again, it would be cool if he released some sort of statement addressing it. I guess we’ll see. : )

      • Plus they don’t want to to use Pinterest as a place for self promotion. So how should you pin images that are not your own but that you own the rights of? How could they not know about this??? Seriously!

        If someone like the owners/creator(s) of Pinterest encourage copyright infringement as much as they do by contradictory terms/pinning rules and not pointing out potential copyright violations it’s quite implausible that they don’t know what’s going on…and that they only want to do good and spread creativity.

  21. traceyclark says:

    great article! thanks Kal for sharing it. it’s a must read for everyone!

  22. Liza says:

    I love pinterest for a variety of reasons, but I do make sure that any work of my own has a watermark, logo or signature right on the image. Sure, someone could photoshop it out, but it’s discouraging. Now, how different is this from posting my own art on my own blogs? I’ve found some of my images floating around the web with no credit and it drives me nuts. On the other hand, I’ve gotten some sweet publishing gigs from images of mine folks found through google searches. So, it can work both ways.

  23. Excellent post, and a very helpful explanation of the problem. I personally can’t see how Pinterest can continue for much longer, as it is now, without facing some major legal battles ahead.

    I used to use Pinterest quite a bit. I’ve slowed down considerably, and only pin certain things. As a home/DIY/craft blogger, I love having my projects pinned DIRECTLY FROM MY SITE. I get quite a bit of traffic from them. And there seems to be an unwritten, understood agreement among home/DIY/craft bloggers that we can use each other’s photos as long as they’re credited and linked (unless the blogger expressly says otherwise). These are the things that I also pin to Pinterest from the original source.

    I hate seeing photos from professional photographers, items for sale from Etsy store owners, and other things like that pinned to Pinterest…especially when the Etsy item is in a folder called something like “I Can Make This.”

    There has to be a solution, but I can assure you that using the photo directly from the original source’s server is NOT part of the solution. Pinterest gets an incredible amount of traffic. According to their Alexa rank, it’s the 19th most popular website in the United States. As a blogger who uses a self-hosted WordPress blog, I certainly don’t want to be paying server costs for the traffic that Pinterest gets on photos pinned from my site, especially since only a fraction of those pins viewed from my site actually ever click over to result in traffic for me.

    The fact that they copy the original copyrighted work to their servers is definitely a copyright infringement. However, using someone’s photo from their server on your own website or blog is hotlinking, i.e., STEALING their bandwidth. I get pretty worked up about people stealing my bandwidth, because that is money right out of my pocket every single month in the form of server costs (for which I already pay a pretty darn high price each month).

    One simple part of the solution would be for Pinterest to allow websites and blogs to easily opt out of having their photos pinned to Pinterest. That way, those of us who enjoy our work being shared will still benefit, while those who would rather not have their copyrighted photos shared can opt out. It could be something as simple as a bit of code that you place in the part of your website, kind of like the “noindex” that you use if you don’t want search engines to index your site.

    There’s still the issue of work not being credited to the original source (or not being sourced at all). This is a huge frustration for me and most other home/DIY bloggers I’ve spoken to about the topic. I have no idea what the solution is, but there has to be one.

  24. Tyler says:

    I know a fair bit about copyright law, so my wife (who is interested in this issue regarding Pinterest) forwarded me this post. I’m hoping to tweak part of your analysis. The “US Copyright Office Regulation” that you reference is actually the Digital Millenium Copyright Act, which Congress enacted and is now a critical component of the Copyright Act. Section 512, which you quote, is the “DMCA Safe Harbor” relates to Online Service Providers (OSPs) like Pinterest. In general, so long as infringing material has been placed on an OSP’s server at the direction of the user, the OSP does not have specific knowledge of that infringing material, the OSP has a take-down procedure (along with an agent to receive take-down notices from copyright holders), the OSP terminates repeat infringers, and the OSP does not receive a direct financial benefit from infringement, there is no liability.

    The hugely relevant DMCA Safe Harbor distinguishes Pinterest entirely from the Perfect10 case, where the image caching and thumbnailing was done *by Google* and not by its users. There, the DMCA Safe Harbor did not apply. Here, it does.

    I’m not prepared to say that Pinterest is in the clear — I think you’re right to note that ubiquitous infringement by its users may eventually pose legal problems — but any analysis should focus on the Viacom v. YouTube case, which is far more relevant. In that case, Viacom argued that YouTube knows that a huge percentage of its videos are on the site without permission and that YouTube should not be able to continue to make a huge amount of money from advertising connected with such videos. Viacom argued that YouTube should have an affirmative duty to filter out this likely infringement. YouTube, meanwhile, argued that there was no way it could sift through all of the videos that users were uploading. So long as it met the requirements of the Safe Harbor and followed up on all of Viacom’s take-down notices, it argued that it should be in the clear. The Southern District of New York court sided with YouTube and held that the site is protected by the Safe Harbor, even though it financially benefits from ubiquitous infringement. Importantly, it held that actual knowledge of infringement required knowledge of specific infringing material; knowledge that infringement is “ubiquitous” is not enough to trigger any special duties to root out the infringement.

    The Viacom v. YouTube case has enormous implications for all sorts of OSPs (like Pinterest). I believe it is currently on appeal to the 2nd Circuit; if that court rules against YouTube, any potential legal challenge to Pinterest would quickly gain traction.

    At the end of the day, though, the point of this comment is that the copyright liability + fair use analysis would only be relevant if Pinterest itself was pinning unauthorized photos or brazenly encouraging its users to violate copyright; since such photos only get on the site “at the direction of its users, the DMCA Safe Harbor is the relevant legal framework.

    • alexandra says:

      This is really fascinating, but I have two questions. If Pinterest is adding its own affiliate links to pins users upload, aren’t they potentially benefiting from what is placed on the site? And, if they are telling users to add lots of pins and make sure to include large images, isn’t that in itself encouraging them to add content without reminders that the content must meet certain criteria?

      I think that sites like YouTube seem to be much more clear about what is and isn’t to be uploaded. Pinterest actually hands you a widget to place in your search engine toolbar to pin what you find.

      • Tyler says:

        Regarding the affiliate links, I’d imagine this is more of a “Terms of Service” problem of Pinterest essentially taking money from its users than it is a copyright problem. But for the specific issue of whether Pinterest might now lose DMCA Safe Harbor protection because it’s making money off of (often) infringing user activity, the answer is still no. If the affiliate links are added because of an automatic technical process — rather than Pinterest employees actively curating those links on infringing material — the Safe Harbor still applies (assuming the YouTube case was decided correctly), because Pinterest has no specific knowledge of infringement that it decides to keep on the site in order to continue making money off it.

        For your second question (telling users to add lots of pins and giving them a widget to do it), this also seems ok. Nothing in the Safe Harbor says that a web service has to beat its users over the head with copyright law. So long as the pinning things has substantial non-infringing uses — which I think it clearly does, given the number of people who pin their own stuff — encouraging users to pin things wouldn’t seem to be problematic.

        All of this is what I think a court would find, but I don’t think it’s a best practice. Clearly, the more you do to discourage copyright infringement by users, the better off you’ll be. It’s not clear to me that Pinterest does enough; but it’s also not clear to me that Pinterest does too little to invite copyright law trouble.

    • Sean says:

      Interesting look at it. Thanks!

  25. David says:

    Nicholas is the only one on this thread who’s got it figured out. The business model for content creators has fundamentally changed, and will continue to evolve in a free, open, sharing based internet. Trying to swim into this tide is just not going to accomplish anything, except exhaustion. For now, the ONLY option artists/photographers have to fully protect their work is to keep it off the web, or lock it behind a cyber wall and hope for the best, but if you choose that route, I have a simple question for you: How are you going to promote yourself or your work? Nicholas is spot on about the resolution of images and their reproductive quality (or lack thereof). If someone is foolish enough to take a low-res file and make a brochure using an uncredited, unpaid image grabbed from the web, my guess is that company doesn’t have much money to begin with so no sense chasing after it. Bottom line: the model has changed, and content creators need to learn to adapt to this model, quickly. Sharing is here to stay, I can promise you that.

    • Sean says:

      I think you’re mistaken. Up to 600px is plenty large enough for a blog poster to exploit. As a stock image seller, I have seen plenty of examples of people taking low resolution images, even with watermarks, and making brochures or websites from them. The model hasn’t changed. “Sharing” is what people want to do when they don’t want to create their own content and want to take advantage of others, imo. Do you think this content magically appears on servers for others to exploit?

      • joe says:

        “Sharing” is actually just what people do, as people. Hey look at this cool/pretty/interesting thing I found is pretty much universal and has been going on since there were things. The fact that because of technological change this now involves making a digital copy, doesn’t change the underlying nature of the social event (i.e. that pernicious sharing you speak of). On a more legal note, the copyright in a photo is often much thinner than other types of creative works. Whose picture of a nice looking baked ham is that, could be one of thousands really. Once you put your work into the public space by what, sharing, you do lose absolute control of it, and rightfully so, since you know we are trying (some of us) to have a functional society.

  26. [...] What’s that pinterest doing now? Oh boy. [...]

  27. natalie says:

    hi Sean
    This was interesting and well written. However I have to slightly disagree.
    To me Pinterest is a wrong target. Or at least not the only one. Technology with its imperfections is not 100% responsible, it is also about how people use it. I’m not competent to discuss about copyrights and such, but to me it is a matter of behavior, honesty and awareness.
    Pinterest is not the first virtual place where to share, and not the only one either. One of the latest successful one, that makes it a target for some, certainly. But what about blogs, flickr, FB, Twitter… ? There are just as many questions about credits on these. Even our good old www itself is about s.h.a.r.i.n.g with all the dangers that this implies.
    Some peopel have to be more careful about the information they share and know that there are some not so nice people in this world, real or virtual.
    I followed a link to your site given by someone I know enough personally (unfortunately) to know she whines about privacy on Pinterest, but she spreads about family problems & background in details on her PUBLIC blog & twitter — she could choose to set them private, but she doesn’t. She wants to be a lesson giver about sourcing, but she “borrowed” ideas & stuff more than once and didn’t give credit.
    It seems to me some people are always looking for some battles with wrong reasons, to be part of something, and to see them (you’re not included) spitting on the soup they had loved one minute earlier looks like a storm in a glass of water.

    • I agree with you. It’s up to the users to not violate any copyrights and Pinterest is not the only site that enables users to upload copyrighted images. But none of the other sites endorses re-sharing the content of others (which often violates copyrights as long as you don’t have permission to do so) as much as Pinterest. And tumblr.
      Plus Pinterest has quite confusing terms and pinning rules…you’re not allowed to upload anything you don’t have permission to, but you also shouldn’t upload too much own stuff, and you should credit correctly. Well, then there’s not much left to upload…

  28. [...] Photographer Sean Locke takes a stronger stand, questioning whether Pinterest itself is actually infringing upon artists’ copyright. It sure sounds like copying people’s photographs without authorization would be copyright infringment [sic].  Yet, Pinterest seems to be encouraging people to scour the web, pinning (copying to their servers) artwork created by others: “Pinterest lets you organize and share all the beautiful things you find on the web.” [...]

  29. gina says:

    what are places like we heart it .com ? Seems like a similar problem, no? or tumbler? Or even individual blogs… perhaps writing this article is simply to gain google page rank. (and I am playing complete devil’s advocate here.) it just seems odd that you are so specific about this one site, as if it is the first and only site to have this set up…

    • Sean says:

      Sorry, no devious intent. I’m not aware of everything on earth. This came on my radar when someone started discussing Pinterest on the iStockphoto forums. I’ve since looked at tumblr, and frankly, it just looks like a big mess to me. Pinterest’s sole focus is ‘sharing’ images. That is clear from the layout.

  30. alexandra says:

    Hi Sean, if and when you have a chance, I’d really love to talk. This is an issue I’ve been addressing on my site for weeks as a writer and photographer, but also as a pinner. I couldn’t find an email to contact you, but would love to ask you a question. Would you email me if you had the time? All for one and one for all :)

    Thanks!

  31. [...] Photographer Sean Locke takes a stronger stand, questioning whether Pinterest itself is actually infringing upon artists’ copyright. It sure sounds like copying people’s photographs without authorization would be copyright infringment [sic].  Yet, Pinterest seems to be encouraging people to scour the web, pinning (copying to their servers) artwork created by others: “Pinterest lets you organize and share all the beautiful things you find on the web.” [...]

  32. [...] on the topic of fair use of images on Pinterest. If you’d like to do some research, here are some articles I found very [...]

  33. Adam says:

    Interesting development, Pinterest have released code for websites to block people ‘pinning’ their images: http://www.theverge.com/2012/2/20/2812472/pinterest-code-unwanted-image-sharing

  34. Bill says:

    Perhaps Pinterest’s legal team have been following this discussion :-)

  35. [...] Sean Locke writes about his misgivings on rights usage and the Pinterest website itself [...]

  36. [...] e questo articolo spiega bene le mie perplessità sul copyright infringement [...]

  37. Liliy says:

    This is sort of an aside, but the second point above you mentioned using that BBQ image was okay because it was an ‘inline display’ from the other person’s server–that particular practice is called ‘hot linking images’ and copyright aside, it’s a form of bandwidth theft that’s very discouraged.

    My first fear hearing about Pinterest was them linking directly to the images on the server I’m using–that sort of image linking has the potential to destroy my bandwidth allotment on my shared hosting (I had major problems in the past with people linking to my galleries via forums & blogs–since then, I’ve moved it all off site to Deviantart and the like). The fact Pinterest copies the image to their server is almost a relief.

    In your case above, it’s not a huge deal since the image in question is hosted on Blogspot–a server obviously made for high demand. But if you were to say link something from one of my sites, it would have a much greater impact because of our traffic differences & shared hosting vs a dedicated server.

    That in mind, copying the image over is tricky when it comes to copyright law–but, considerate of people’s hosting limitations and expenses. So it’s a tricky slope overall.

    • Sean says:

      That’s true about the inline/hotlinking and being worried about traffic, and as you noted, not a big issue here because of the host in this case.

  38. [...] Sean Locke is a photographer who has written a series of posts about his Pinterest misgivings http://seanlockephotography.com/2012/01/26/pinterest-com-and-copyright/ [...]

  39. [...] both Jonathan and Sean Locke point out, their use of full images likely means that they do not benefit from the Perfect 10 v. [...]

  40. [...] Pinterest.com And Copyright ~ Sean Locke Photography (updated 29-Feb-12, also worth searching his site for ‘Pinterest’ for other posts he’s written about this subject) [...]

  41. [...] are two more. Christian Oth wrote a thoughtful article on the subject, and Sean Locke’s research was [...]

  42. [...] This Visual Curation Site has seen page views  jump from 10 million to 17 million visits just in January! On those stats alone, perhaps you should consider adding Pinterest to your social media marketing mix. BUT…… What about the all of the Negatives being presented regarding the Legalities of Copyright? [...]

  43. [...] it that I do. In truth, she has what I believe are to be very valid points against it. Here is a link that she shares on her FAQ you can read if you want to hear more about why she feels this way. As [...]

  44. KATE says:

    I find that Tumblr is the exact same, actually worse, because you can change the URL once you re-blog. At least on Pinterest you can’t change the URL. Because of all of this, and having an image of mine stolen, manipulated and taken by someone else as their own, I feel totally violated as a professional. I am therefore removing my presence on both Tumblr and Pinterest for this reason. THanks for a good article!Why is none talking about Tumblr?

  45. [...] suffer a justified backlash against it and its motives.  And let’s not talk about the potential copyright issue they [...]

  46. [...] have suggested that the large amount of copyrighted, unattributed content that has been copied to [...]

  47. [...] have suggested that the large amount of copyrighted, unattributed content that has been copied to Pinterest’s [...]

  48. [...] have suggested that the large amount of copyrighted, unattributed content that has been copied to Pinterest’s [...]

  49. [...] have suggested that the large amount of copyrighted, unattributed content that has been copied to [...]

  50. [...] haven’t been keeping a strong eye on the Pinterest copyright infringement situation lately, having a bunch of stock shoots and other work to do.  However, yesterday, it popped back [...]

  51. [...] have suggested that the large amount of copyrighted, unattributed content that has been copied to Pinterest’s [...]

  52. [...] Pinterest and Copyright by Sean Locke [...]

  53. Matt says:

    “However, is it the job of a copyright holder to actively police millions of Pinterest pages for their works”

    Seems like a bit of a strawman when you later LINK DIRECTLY TO lists that make it blindingly easy to find all the images coming from a source…

    If they didn’t do the copying, all it would take is for one “pinned” image to be replaced (or even just referer-based redirected) to a shock image before the “OMG TEH CHILDRENZ” crowd would be demanding the site shut down – I suspect that’s a large part of why they copy the images now.

    • Sean says:

      I’m not sure what your point is, but there is no strawman. The ‘souce’ domain of the stolen image doesn’t necessarily have anything to do with the creator or copyright holder of the work.

      Also, I’m not sure your fear of changing hotlines images would be a good defense when you shouldn’t be hot linking in the first place.

  54. [...] photographer Sean Locke discusses exactly what part of Pinterest violates a photographer's copyright and how it's [...]

  55. [...] suffer a justified backlash against it and its motives.  And let’s not talk about the potential copyright issue they [...]

  56. [...] masse, so that we were competing with ourselves for image traffic, and third-party websites began using pinned images to make money. Hubpages, where I've had the most luck in diversification, had its Google ups and downs and its [...]

  57. [...] a year or so ago, Pinterest and copyright issues became a topic of discussion.  If you need more details on how Pinterest works and how it affects [...]

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