Last week, I took a look at how the new social networking site Pinterest encourages and facilitates copyright infringement. Today, I actually have an example of the kinds of issues that can anger people whose works are “pinned” (infringed upon) on the Pinterest.com site.
In my blog history over the weekend, there was a record of an incoming link from the Pinterest.com site. I followed the link back to Pinterest and discovered that my article was mentioned in the comments of a pinned image. I’m going to have to paraphrase the discussion, as the page has since been removed, but it went something like this:
Pinner 1: What’s the problem? I pinned this right from Flickr, from your PUBLIC page. If you don’t want it to be seen, don’t put it on your PUBLIC page. Stop being such a party pooper. If you stop complaining, I might remove it.
Pinner 2: ( Something about respecting the artist )
Pinner 1: ( Some response brushing off the concern )
Pinner 3: Be nice and be an adult. (link to my blog)
At this point, I decide to join Pinterest so that I can contribute to the discussion.
Me: Just because you link to their Flickr page does not mean you have the right to upload their work here. If you notice, the artist’s works are marked “All Rights Reserved” which means you are violating the TOS of Pinterest by granting them the following rights: ( quote of TOS ). So, you are, in effect, infringing copyright.
Pinner 3: Thanks, Sean.
Pinner 1: Then, Pinterest is the problem, not me.
Me: I know avoiding responsibility is popular in today’s internet culture, but you can’t absolve yourself here. You violated the TOS and infringed on the artist’s rights.
Pinner 1: Well, I guess you have a class action suit on your hands.
Pinner 4: Listen lady. All this photographer did was kindly ask you to remove the picture. She didn’t call you names and was only forced to turn you in when you became belligerent to her request. Looking at all your boards, especially one as ridiculous as this, you have PLENTY of pins. Why be so mean to her original request?! Actually grow up and end this pride-filled, stubborn anger you apparently have about this picture and remove it. Your actions and abuse of usage here on Pinterest are the very kind of actions that will cause this site to be sued in the future, so yes, you ARE partly to blame.
At this point, the offending image was removed, either by Pinner 1, or by Pinterest.
Here’s the important part though. The image was originally “pinned” by “Pinner 1” on her board “Ridiculous Pregnancy Pictures”. The board is a collection of images that the member has pinned from a variety of artists, with the intent to poke fun, and encourage comments in the same vein. Things like “hahahahahaha it’s even more disturbing that more than one woman went with this idea.” and such. The pinboard is filled with lots of images, from Flickr pages that are marked “All Rights Reserved”.
The image in question that was pinned was from a Flickr set “Creative Maternity Workshops”. I think it is obvious that the Flickr user runs, or participates in, some sort of Photographic Education business. Is it legal for Pinterest to copy this artist’s work to their servers for the purpose of what is essentially negative advertising? Not only can it cast unwilling participants in a false light, it can also defame the artist or reflect negatively on her business.
Don’t forget, Pinterest encourages it users to traverse the web, “pinning” whatever they like. Here is the email I received upon joining:
YOU are the newest member of Pinterest, a community to share collections of things you love. We’re excited to have you as a member and can’t wait to see what you pin.
A few tips to get the most out of Pinterest:
– Install the bookmarklet. It lets you add a pin from any website with just one click.
– Follow a few more pinboards. After all, Pinterest is as much about discovering new things as it is about sharing.
– Pin carefully! As one of the first members of Pinterest, your pins will help set the tone for the whole community. Use big images, write thoughtful descriptions, and pin things you really love. Also, no nudity 🙂
Thanks for joining and happy pinning!
– Ben and the Pinterest Team
Notice they encourage the user to install the bookmarklet for ease of “pinning” content from the web. They also want the user to “use big images”. No taking the thumbnails of others’ works – they want the full size. Not a word about how not to infringe upon the rights of others. How not to steal things others have created. Nothing.
Can the user hide behind “fair use“? This particular example does appear to be a case of “using a work in order to poke fun at or comment on the work itself”. Parody and satire are well protected actions in our history. From Wikipedia, “fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders”. However, I don’t believe the user can “fair use” as a way to get around the Pinterest terms:
We may, in our sole discretion, permit Members to post, upload, publish, submit or transmit Member Content. 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.
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.
“Fair Use” applies to the publication of copyrighted works, it does not allow one to grant unlimited use rights of something they do not have the rights to. Remember, Pinterest users, by “pinning”, you state “you either are the sole and exclusive owner of all Member Content … or you have all rights, licenses, consents and releases that are necessary”. When you “pin” someone else’s work, you do not meet that requirement, IMO. And the minority of uses on Pinterest are parody or satire. As a whole, Pinterest is a commercial venture ( eventually profitable ), whose content and product is mainly the work of others, used without permission.
So, the question is, can Pinterest use “fair use” as a “loophole” for its continued encouragement of copyright infringement? Can I post the first act of “Star Wars” on my site and then lead a discussion on it? Can I post a .pdf of “Harry Potter and the Sorceror’s Stone” as a jump off point for an online bookclub? Why does Pinterest ( and similar ) think posting an entire image for comments is different? What do you think?