Law360, New York (July 23, 2012, 1:28 PM ET) -- At two years old, Pinterest is a toddler among older social networking sites like Facebook and Twitter, but recent pressure put on the site and its founders by users and critics suggests that its troubles may be very grown-up. Since the March 2010 beta launch, Pinterest has been growing fast, and with increased popularity has come legal fear mongering. The lawsuits may not have started yet, but extreme caution has led some Pinterest users to publicly "unpin" images from their boards. Reasoning? Avoiding copyright infringement.
The unique copyright problems facing Pinterest and its users are a result of the site's unique functionality. Pinterest, a self-proclaimed "virtual pinboard" "lets you organize and share all the beautiful things you find on the web." Pinterest users find images created by others and "pin" those images on their own boards. The problem is that "pinning" is also known as "copying," one of the exclusive rights granted to copyright owners in the Copyright Act.
Originally "Pin Etiquette," an ethics code of sorts for users, advised users to refrain from pinning their own images. You see, Pinterest was not created for self-promotion, but for users to connect over their mutual interests. Users demonstrate their interests by pinning images to their boards - fashion lovers pin trendy ads, dog lovers pin the latest pictures of costume-wearing corgis, and so on. Pinning, though, may not be the greatest form of flattery in the end.
The blog post of one photographer/attorney, Kirsten Kowalski, ignited an Internet controversy earlier this year when she blogged about the decision to delete some of her Pinterest boards for fear of being sued for copyright infringement. A public outcry quickly followed with other users deleting boards and arguing over the possibility of copyright infringement. Some users felt tricked by Pinterest and could not believe that they could be held accountable for copying on a site where copying was openly encouraged. All of the fuss led Pinterest to revamp its policies and introduce a section on the site specifically dedicated to copyright and trademark infringement. But even with all of the recent hullabaloo, we have yet to see the rustling of a single complaint. Given what is at stake, the complaints may never be filed.
First of all, Pinterest is unlikely to face a suit for copyright infringement. The company has insulated itself by placing the onus of copyright infringement directly on the backs of its users. Pinners agree to abide by the "Acceptable Use Policy," which among a litany of other restrictions limits users from pinning any content that "infringes any third party's Intellectual Property Rights, privacy rights, publicity rights, or other personal or proprietary rights."
The Pinterest terms of service further instruct Pinterest users to first understand the complexities of intellectual property law before making the decision to pin third-party content. And just to be sure, Pinterest also provides detailed instructions for copyright owners to take advantage of Digital Millennium Copyright Act takedown option. Thus, across a variety of policies, etiquette sections, terms of service and intellectual property nutshells, Pinterest repeats the mantra that "Pinterest respects the intellectual property rights of others and expects users to do the same."
Assuming that Pinterest is adequately protected, then what is the probability that Pinterest users will be sued for copyright infringement? Certainly the users meet the elements of copyright infringement by reproducing or publicly displaying protected works without permission. A fair use defense might save a given user, depending on the facts, but others might not be so lucky. So should copyright holders call out the enforcement team? Should Pinterest users batten the hatches and prepare for the worst? Hopefully not. Putting aside the merits of potential claims for a moment, let's step back and look at the potential public relations consequences of suing a Pinterest user.
Pinterest is a popular site where users are actively encouraged to "organize and share what you love." Any image that is being pinned or re-pinned on Pinterest is an image that is loved by a user. Sending that user a letter accusing them of copyright infringement and commanding them to remove your copyrighted materials could completely destroy that user's affections toward your company. Yes, you've fixed the copyright problem, but you've also lost one of your biggest fans - someone who used to share their love with other Pinterest users. What messages will they share now?
Companies with the means to enforce their copyrights should elect to ignore the pinning efforts of Pinterest users and avoid the muck of a public relations disaster. Every major company dabbles in one form of social media or another, and social media may actually work to protect Pinterest users from becoming defendants in copyright lawsuits as consumers have taken to the Internet to both praise and burn companies. The ability to reach the entire world via a blog, Facebook or Twitter and interact with other users instantaneously gives users the power to influence corporate decision making. Social media allows users to talk back to companies and alert the online community as to the "injustice" being done.
Take a look at a couple of examples. We all remember when the Recording Industry Association of America ("RIAA") took an aggressive stance against illegal downloading in 2000, filing lawsuits against Napster Inc. for contributory and vicarious copyright infringement. Napster was ordered to monitor to the activities on its network and block access to infringing material, but was unable to do so, resulting in Napster shutting down its services in July 2001 and declaring bankruptcy in 2002. The record industry may have seen Napster's demise as a victory, but many commentators feel that the file sharing on Napster actually stimulated record sales, citing the number one Billboard chart success of Radiohead's "Kid A" album as evidence of Napster's positive effects.
After Napster, the RIAA filed numerous lawsuits against college students and other judgment-proof defendants around the United States before eventually realizing how futile their efforts had become. Record sales have continued to plummet in recent years, and some have attributed the decline to consumer backlash against RIAA's enforcement tactics.
Another example. Earlier this year, Louis Vuitton Malletier SA sent a cease-and-desist letter to a student organization at University of Pennsylvania Law School - the promotional materials for its fashion law symposium parodied the company's trademarked "toile monogram" pattern - only to be lambasted days later by Internet commentators when Penn's response went viral. Louis Vuitton was painted as an out-of-touch bully, and Penn's law students the proverbial "David."
These public relations blunders should be seen as examples of what not to do. In many ways, corporations already tend to avoid drama, dropping athletes' endorsements at any sign of a scandal and shying away from making statements on hot-button social issues. The executives behind the wheel know just how long it can take a company to recover from a bad public relations move. Target Corp. is still recovering from the controversy over its donation to a political organization in 2010 that funded a candidate opposed to gay marriage. Two years after protestors picketed Target headquarters, the retail giant is now attempting to make amends by selling T-shirts to raise money to defeat the constitutional marriage amendment in Minnesota. In light of the healing time it can take to recover from errors such as these, companies interested in suing Pinterest users should carefully weigh the pros and cons of enforcement.
Still, out of an abundance of caution, Pinterest users should take some steps to protect themselves from potential liability. Users should credit the original creator of the work and only copy as much as is necessary to make their point. Fair use has been asserted in more and more copyright infringement cases as of late, and it is a plausible, but fact intensive defense. That fair use has been underutilized in the past says nothing of the value of the defense or its probability of success.
All things considered, Pinterest might just turn out to be a company's best friend. Pinterest users spend less time on company websites, but browse from company pinboards, repining what they love and potentially purchasing.
Nearly 30% of Pinterest users have a household income over $100,000, and the average Pinterest user spends more time and more money than the average Facebook user - spending 15.8 minutes on Pinterest and up to $95 more per transaction. Small companies such as online jewelry site Boticca are already using Pinterest to their advantage, driving consumers to their site and allowing their products to be pinned freely.
Companies that decide to not take action against pinning will assist in benefiting both Pinterest and Pinterest users. Users will continue to pin images of clothing, corgis, and craft projects, and Pinterest will continue to grow. From its first beta in 2010, Pinterest has blown up to become the third-largest social network site, scoring 11 million total visits per week. After a third round of investments in May 2012, the site has been valued in the range of $1.5 billion. Not bad for a site with a sole purpose of being someone else's pincushion - excuse me, "pinboard."
--By Catlan McCurdy, Winthrop & Weinstine PA
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Catlan McCurdy is an associate in Winthrop & Weinstin's intellectual property group in Minneapolis. She focuses her practice on the enforcement of trademarks and copyrights.
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