Pinning Down Pinterest: Addressing Copyright and Other IP Issues

by Latham & Watkins LLP
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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.

Another issue that might come up is the potential to breach the terms of use of a website—if you are taking content from a website and posting it to your Pinterest page, that may be a violation of the terms of use of the website from which you took the content. There may also be right of publicity issues if the content you are posting has people in it. There is a statutory and a common law protection in many states that protects people's images and likenesses. If you don’t have someone’s consent to use their image or likeness on Pinterest, and if the post meets the other requirements of a violation of the right of publicity, which usually involves some sort of a commercial use, that can be a problem.

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?

Ms. Barry: Fair use, which is a defense to copyright infringement, is a very complicated, nebulous and fact-specific doctrine. When it comes to using content on Pinterest there are some things you can look out for that can help you build a defense of fair use and provide you with some comfort that it is ok to use the content. The easiest way to do that is to only post from other Pinterest pages because Pinterest’s terms of use expressly state that if you put content on Pinterest, you are giving consent and a limited license to everybody else on Pinterest to re-pin your materials.

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?

Ms. Barry: There are several ways to do this. You can expressly put a disclaimer on your website that says don't pin from my site. You can also put some terms in your website’s terms of use, either specifically calling out Pinterest, or just more generally saying don't use our content for any purpose without our permission.

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?

Ms. Barry: It is going to depend on what the problem is—if it is a copyright issue versus a trademark issue. The very first thing a company should do is check Pinterest's terms of use to see what the takedown procedures are. Pinterest has a DMCA (Digital Millennium Copyright Act) takedown, which would cover copyright, but DMCA does not cover trademarks, so you would need to really take a look at the latest version of the terms of use for Pinterest to see what they offer. If that is not enough, you might need to do some sort of a demand letter, but the first step is always to check the terms of use.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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