{Be Successful} Not So Happy Pinning???

 

 

 

Crystal Wilkerson from the Photog Law Blog (GREAT resource – http://www.photoglawblog.com ) is our guest author for today. Enjoy her legal wisdom about Pinterest!

 

Within thirty days after I joined Pinterest (www.pinterest.com), I had created a virtual corkboard with dozens upon dozens of inspiring photographs that I thought I may use  one day as inspiration for some of my own photo sessions.   Most, if not all, of the photographs pinned on my boards had been found by me on boards of my friends or on other boards that I found by searching for a particular topic on Pinterest (such as: “baby boy first birthday cake smash photos”).

I was so happy pinning that at first I didn’t stop to think about the rules and policies that applied to my pinning or about the potential consequences of my pinning an inspiration photo for safe-keeping forever and ever on my Pinterest board (as even after deleting a pin, Pinterest retains a record of pins made for an undetermined amount of time).

Then a year or so ago I saw a news story about Pinterest making modifications to its terms of use and the dismay was caused by Pinterest shifting the potential liability for any copyright infringement occurring on the site to the Pinterest users.  If you read through the terms of use, available at http://about.pinterest.com/terms/ , the relevant section reads:

 “Anything that you post or otherwise make available on our Products is referred to as “User Content.” You retain all rights in, and are solely responsible for, the User Content you post to Pinterest.”  Section 2(a). 

That sounds okay upon first read, right?  Anything I post to Pinterest is my User Content and I retain my rights in it and am “solely responsible for” that content. Makes sense, but wait a minute.

Most of the content that I had pinned to Pinterest was not what I would consider my content at all – in fact, hardly any of my pins were of photographs that I had taken myself.  Rather, I had been busy pinning other people’s content to my Pinterest boards (some as re-pins of previously pinned photographs, but I also initiated several first pins by using my Pinterest-provided “Pin It” button on my explorer tool-bar to pin photographs I liked from third party websites).

The copyright attorney in me started thinking. I decided that, from then on, I would no longer pin images from third party websites, unless I had clear permission to pin by the copyright owner.  For example, many sites that are pro-Pinterest will now have their own “Pin It” buttons on their websites to encourage third party pinning. In such case, the third party site is consenting to pinning of the images found on that site.

So, why did I make the decision to restrain my pinning? It’s easy.

• Pinterest has told us in their terms of use that they will NOT be there do provide legal defense in the event that an image is pinned that violates third party intellectual property rights (copyright infringement, trademark infringement, etc.). So, even though Pinterest, as the service provider, may be making it very easy for us to make unauthorized copies and distributions of another’s copyrighted work, Pinterest takes the view that any such violation is the user’s sole responsibility.  Caution becomes more important when you realize you are solely responsible for your own actions.

• Creating a record of inspiration photos, to which you own no legal rights, is not really a great idea as that record would likely become evidence in any potential litigation involving copyright infringement claims.

Let’s paint a hypothetical to show how this all goes together.  Let’s say that I am on one of my favorite websites for photographers, and I pin a beautiful photo of a sweet little girl, dressed in a red and white polka dot dress, sitting on top of a basket full of apples, giving a great big “wink” and smile at the camera.  The lighting is late afternoon with a nice sunset.  In the background the little girl’s father is holding a chalkboard with “Apple of My Eye” written on it.  The whole thing is so darling I can’t help but pin the photo to one of my inspiration boards on Pinterest.

Two years later, I have a client that approaches me about taking photos of her daughter in their apple orchard.  I love the idea and suggest, seriously not remembering that photo I had pinned so long ago, that we have a basket of apples and think it would be great to have the dad hold up an “Apple of My Eye” sign.  I suggest that the little girl wear red and white polka dots, and I bring a large basket to be filled with apples. We shoot at sunset. I get her to wink and smile at me, so cute.   My photos turn out beautiful, and I blog about them the next day.  My blog gets picked up by a national children’s photography magazine, and my apple orchard photo is the cover of the November issue.  I’m on cloud nine, until I receive a legal complaint from a photographer claiming that I have unlawfully copied her original “Apple of My Eye” photograph without permission constituting copyright infringement.

One duty of the plaintiff (the party doing the suing) in a copyright infringement case is to prove that the defendant had access to the work that has been infringed.  The fact that the original photograph was available on a publicly available website, standing alone, would not necessarily prove that I, the defendant, viewed that website and had access to the photograph.

However, during the course of a legal case, the plaintiff would have certain rights to “discovery” where the plaintiff would have access, for example, to the defendant’s documents, records and files (print and electronic), and certainly in a case like this example, the plaintiff would seek to have a copy of all of the defendant’s Pinterest pins from the last several years.

Having the plaintiff’s original photo pinned on the defendant’s Pinterest board as an inspiration photo is a death nail, making it oh so much easier for the Plaintiff to win her case. 

So, as a “best practice” be cautious about what you pin, making sure you only pin photographs that the copyright owner wants to be pinned on Pinterest.  And don’t pin and copy, as illustrated by the example above, it’s just not a good idea.  It is perfectly acceptable to borrow an idea, but it can be copyright infringement to copy a particular manner of expressing that idea. Be sure to make your inspired photograph your own and do not strive to copy inspiration photos detail by detail. But also remember that copying can be subconscious (as in the example, where I had truly forgotten that I had seen the original image years earlier). Be careful not to create a Pinterest pinned-photo trail that could be used against you in a copyright infringement suit in the future.  Happy Pinning!