Pinterest is a pinboard-style content-sharing website where users can post photos and other content, share images and comment on each other’s content. Its rapid success—it is reported to have more than 50 million users—has made it an enticing marketing tool for companies.
Latham & Watkins partner Jennifer Barry recently gave a presentation called “Pin This: Copyright and Other IP Issues With Pinterest and Similar New Social Media” at the San Diego chapter of the Association of Corporate Counsel. In this lw.com interview Ms. Barry shares key takeaways from her presentation and offers tips and best practices for companies that use Pinterest as well as companies whose content is being used by others on Pinterest.
What are the key considerations for companies that use Pinterest?
Ms. Barry: Pinterest raises several legal issues because users are essentially using other people's content. The biggest problem is copyright issues because the content that most people use on Pinterest is primarily images, often photographs. That type of material will almost always have some sort of copyright attached to it. Getting consent from someone to use their material and post it on your Pinterest page can be challenging, so often people will post without asking for consent (or realizing the need for it), which can lead to infringement.
In general, whether you will run into trouble or not depends a lot on whether your Pinterest page is purely your own personal page versus a company or corporate page—which is arguably going to be commercially used, what sort of content you are pinning, and finally whether you have received consent to use it.
Is content posted on Pinterest covered by fair use?
The next best would be websites that actually have the “pin this” icon on them to encourage people to take content from the site and pin it to their Pinterest boards. It makes for a strong argument that the owner of that website has given global consent. However, there are still potential issues if the website owner doesn't have the right to be using that content in the first place. In that case, you have sort of a once removed level of potential infringement. So, it is not a guarantee if there is a “pin this” button on a website, but that definitely gives you some good ammunition to argue that you used it in good faith, that it is fair use and that you have some level of consent.
Beyond that, if you don't get express consent from the owner of the content, then you are going to have some potential issues. Fair use looks at what you are doing with the content, where you got it, and whether your ultimate aim in using the content is for a commercial purpose. Based on these points, companies can try to help build their argument for a fair use defense, but it’s not a magic bullet by any means.
Is there anything a company can do to prevent images from their site being pinned on Pinterest?
Interestingly, Pinterest itself has come out with a piece of code that you can embed on your website that will specifically stop people from pinning it and it will put up a message that says the owner of this website does not want people pinning this content. It’s not a cure-all because there are many ways you can get content off of a website—copying it, doing screen captures—so that is not necessarily going to stop the use from a technical perspective, but it certainly puts the person on notice that the website owner does not want their content posted on Pinterest. If they do it anyway, they are going to have a much, much harder time arguing that it is fair use because they knew expressly that the website owner was prohibiting that type of use.
Given the difficulty of enforcement, is it better for companies to embrace Pinterest rather than try to fight it?
Ms. Barry: Generally speaking, if you are an active member of the online community, from a business perspective it might make more sense for you to try to embrace Pinterest. That being said, it still depends on what your content is. If your content is unique and your website gets value from having that content exclusively on the site, then it might not make sense. You have to think through what your business model is and whether it will adversely affect your business to have people taking your content and putting it elsewhere or talking about it and potentially using it for their own commercial purposes.
From a legal perspective, it certainly makes it easier for enforcement purposes if you are setting forth what your permissions and consents are and maybe putting some limitations on those. Then, if someone exceeds the consents you have given, you have a good argument and you don't have to worry as much about enforcement because you have given this certain level of consent. Your monitoring efforts will be targeted more toward abuses of your content. However, it is a tough decision to make because once you give some consent people may take advantage of that and start using your content in a way that you didn't anticipate.
What steps can be taken to address a Pinterest post that infringes a copyright or trademark?