Pinterest, Copyright & FUD

I recently got the following question from a student:

One of my fellow faculty members had this on her facebook page. I thought it was very interesting. I know that several faculty members suggest that students use pinterest as a mood board for coming up with concepts for design projects. Would like to to hear your thoughts on this. Thanks, Dorreen

Brilliant timing on the part of Linkedin-News, Business Insider and Alyson Shontell, the latter being the author of the non-inflamatory titled linked article: “A Lawyer Who Is Also A Photographer Just Deleted All Her Pinterest Boards Out of Fear.” Yeah, that shouldn’t cause any anxiety. Just in case you’re scratching your head wondering, “What the hell is a Pinterest Board?” It’s the latest social website to reach “hotness” status, where participants create virtual bulletin boards or pin boards organized by personal interests and then participants are encouraged to pin images or media from around the web and from other participants. I chose to create boards titled Favorite Places & Spaces, For the Home, Products I Love, My Style, Books Worth Reading and The Beatles. I’ve just started so I only have one image in the Beatles section. It’s a kind of visual scrapbook where one can gather images for inspiration, or gather images to create a project like home improvement, or images to plan a trip or as the student’s coworker suggested: as a mood board (whatever that is). The buzz is that it has a strong female base because of it’s potential crafty nature. It’s completely personal and with an installed “Pin it” button on your browser, it’s just a matter of clicking the button when you’re on a page with an image that you want to add to one of your boards. You can then select the image from all of the images on that page to post on your board. Simple, one, two, three.

This is where the article steps in and screams, “Copyright Violation!” Oh yeah, copyright, how can Pinterest or its participants legally take images from other websites and post them on their own pages? As my students should know after the first week of my class, copyright is about whether you have permission to use a piece of media or not. Period. No permission means the usage is a copyright violation. Yikes. Run for the hills. Pinterest users are violating copyright! But wait, there’s something called the Fair Use doctrine (17 U.S.C. 107) which says that one does not need permission if one is using a small portion of the media for teaching, news reporting, critical comment or parody and the usage does not prevent the original copyright owner from profiting from his/her creation. In the original article the author/lawyer makes comments about whether Pinterest’s “pinning” is the same as “thumbnail” images that was a loophole used in another case. But, alas, in general pinning media on a Pinterest board does not qualify as teaching, news reporting, critical comment or parody, so Fair Use cannot be employed here regardless of the “pinning” versus “thumbnail” quandary. The article establishes the same, but with much more urgent language (small “yikes!”).

How does Pinterest get away with promoting what the article would call the theft of others images? Legally Pinterest’s user agreement is based on the idea of safe harbor, where Pinterest is only providing a service and it’s up to the individual user to not violate any laws and that Pinterest will not be held liable for any violation. How can they do that? Oh my god, there out’a be a law against that kind of thing… My guess is that Ms. Shontell (not the lawyer) has never read any terms of service for any product or service… ever, because that is basic business 101 language of every product or service sold in this country if not the world. So, surprise, you’re responsible for what you do on the Internet too. Wow, how’d that happen?

In the original article written by kristen, the lawyer, she then pushes the panic meter up that much higher by equating pinning unauthorized images on ones boards with illegally sharing music a la the now-departed Nabster. What? This is where those who are used to collecting physical art objects get tangled up with digital etiquette. If I were to go over to Flickr, find a photo someone posted from the Grammy’s of Paul McCartney jumping down from his piano to rock out for the last song and post the image on my Beatles Pinterest board have I taken the image down from Flickr? Nope, it’s now on my board and still on the Flickr page. It’s not theft in the traditional sense that for me to have it the other must lose it. We both now have it. That’s confusing. It is in violation of copyright, if I don’t have permission to use it on my Pinterest board, but it’s not theft because the original is safely tucked away in Flickr.

So, here is how the web is different from the guy selling CDs and DVDs on the blanket at Venice Beach… if you are posting pictures, recipes, graphic ideas for a project that you’ve gathered from across the web, the usage is mostly personal for you and your friends or followers. It’s a virtual scrapbook like what I did when I cut out the pictures from several Life Magazines to make a scrapbook about the Apollo missions to the moon. Pinterest strongly encourages that any images that you use that you directly link back to the original image, so that if someone likes the image they can go back to the original creator to view other images by the creator. If this were Creative Commons, it would fall under the Creative Commons/attribution license. So, Pinterest believes, because the images are largely for personal use (mostly non-commercial) and that they are directly connected to the originals, giving them proper attribution, then the practice falls within standard community Internet etiquette. If the guidelines are properly followed one is not misrepresenting someone else’s work as ones own. It’s still a possible violation and most like not Fair Use, but it’s not theft in the traditional sense either.

So, what can they do to you? Theoretically you could get sued, so don’t take any images from Getty or Disney. But it’s more likely that you might get a DMCA take-down notice if someone were to object. That’s about it. Call the police! Yeah, this one is one giant grey area in the area of copyright. Kristen (the lawyer), is correct that the Pinterest people could make it easier by encouraging the use of Creative Commons more so that one is informed of the nature of how images can be shared. Other than that, the two articles are just taking advantage of the Pinterest hype and adding their own Fear, Uncertainty and Doubt (FUD)! Way to muddy up the already grey waters. Yuck. BTW, you can find my mostly empty Pinterest boards at http://pinterest.com/joebustillos/. Enjoy.

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