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.

Sources:

Why Is Wikipedia Broke Today? SOPA-Protest

Here’s a great video that explains the problems with PIPA and SOPA (besides being dumb acronyms):

PROTECT IP / SOPA Breaks The Internet from Fight for the Future on Vimeo.

Tell Congress not to censor the internet NOW! – http://www.fightforthefuture.org/pipa

PROTECT-IP is a bill that has been introduced in the Senate and the House and is moving quickly through Congress. It gives the government and corporations the ability to censor the net, in the name of protecting “creativity”. The law would let the government or corporations censor entire sites– they just have to convince a judge that the site is “dedicated to copyright infringement.”

The government has already wrongly shut down sites without any recourse to the site owner. Under this bill, sharing a video with anything copyrighted in it, or what sites like Youtube and Twitter do, would be considered illegal behavior according to this bill.

According to the Congressional Budget Office, this bill would cost us $47 million tax dollars a year — that’s for a fix that won’t work, disrupts the internet, stifles innovation, shuts out diverse voices, and censors the internet. This bill is bad for creativity and does not protect your rights.

Obama Hope Poster For Sale or “Shephard Fairey: Oops”

Another day, another Fair Use issue in the headlines. Imagine my surprise as I began to do research to update my previous article on the Fair-Use/Copyright kerfuffle between the Associated Press (AP) and street-artist/icon-wanna-be Shephard Fairey, to discover that the case was dismissed yesterday, January 11th, 2011, and that the two parties had entered into an undisclosed financial arrangement. I loved the lead paragraph from the Animal/New York website:

US District Judge Alvin Hellerstein has dismissed the cases between Shepard Fairey and the Associated Press. And so, the whole copyright infringement vs. fair use vs. fake evidence ballyhooed mess has been resolved with a “confidential” financial settlement. The AP and Fairey will also “collaborate on a series of images,” according to the AP’s press statement. Wait, what?

For those who may not be familiar with the case, Shephard Fairey has been practicing his craft of graphic commentary/stencil graffiti for a number of years and found some notoriety with the Andre the Giant/OBEY image. According to Fairey, in an LA Times video/interview, he said that he wanted to do something for the Obama campaign around the time of the Super-Tuesday push, found an image of Obama and by the following day had a poster with the word HOPE. The poster and image instantly went global. Fairey said that the image captured the leadership and humanity of the candidate and the word HOPE captured the feelings of his supporters. Success.

After the conclusion of the campaign AP threatened to sue Fairey for the use of the photograph that they believed he used to create his poster. Then in February of 2009, Fairey decided to beat AP to the punch and sued AP, claiming that his use of the photo was covered under Fair Use. To make things even more complicated, the photographer who allegedly took the original image, Mannie Garcia, sued AP claiming that he was a freelancer and not an AP employee when he shot the disputed photo and therefore he was entitled to compensation from this litigation. At the end of February 2009 NPR interviewed Fairey and Garcia (separately). It probably didn’t help to settle things down that the disputed poster had just been hung in the US National Portrait Gallery on January 20th, 2009.

It was a textbook case on Fair Use that I immediately chatted with my students about. Looking at Fairey’s actions and pre-emptive lawsuit, those who had read the requirements for a Fair Use defense could say in unison: Fair Use is not a right but a defensible position. Again, Fair Use is not a right but a defensible position.

At the time I asked around to see what others in the media business felt. I asked photographer and TWiT contributer, Scott Bourne, his take on the case (via Twitter) and he said, “I think the artist stole the photo and his fair use claim will end up costing him treble damages. All depends on whether AP owns [the] pic.”

When NPR’s Terry Gross asked the photographer of the Obama image, Mannie Garcia, his take on Fairey using his photograph he said, “[It’s] crucial for people to understand, simply because it’s on the Internet doesn’t mean that it’s free for the taking, and that just because you can take it, doesn’t mean that it belongs to you.”

A cursory survey of opinions online at the time from the likes of Milton Glaser on BoingBoing, Mark Vallen on Art-for-Change, The Institute of Contemporary Art/Boston, and Chal Pivik on the Los Angeles METBlogs, seems to show that the more the pundit knows about the actual steps or changes to the photo that Fairey made to create the poster the more likely the writer came down on the side of Fairey’s Fair Use claim. NPR, of course, did an excellent job covering all of the angles of the story, finishing up with a discussion with law professor Greg Lastowka on the case and Fair Use. Click on the link/player at the end of this story for NPR’s interview.

And so the case stayed here for about ten-months with the photographers crying foul and the graphic artists flipping the bird. Then in October of 2009 Fairey dropped a bomb admitting that he’d lied about which photograph he’d used and destroyed evidence of the actual images he’d used (which he feared would have proven AP’s case because the image required far less manipulation to create the poster). Fairey’s attorneys, which included support from Stanford University’s Fair Use Project, withdrew their support. Photographers 1, Graphic Artists 0.

091018-fairy-troubles-cont-AP-600

In my original article I concluded that had my research on this story ended with the NPR piece I would have been left with a different image of Shepherd Fairey than the one I gained via a series of videos that were created long before Obama campaign, when Fairey’s main claim to fame was his “Andre the Giant: Obey!” world-wide sticker/poster/street art project. Fifteen-plus arrests later for “street art” activities and it’s little wonder that he’d be a media darling while at the same time being in trouble for taking someone’s else’s photograph and not thinking twice about using it to make the Obama: Hope image. Even though it would have gone completely counter to his street-artist-persona, a simple call or email to AP would have saved him all of this hassle.

But who am I kidding. In one of the videos, when Fairey says, “Shephard Fairey: Icon” for the G4 series of the same name, implying his own status in the art/street culture world, I was put off by the arrogance and willingness to play both sides of the media. I predicted that when all of this plays out the title of his next video would be, “Shephard Fairey: Oops.” But I guess given the out of court settlement, the Fair Use test case was kicked to the curb and Fairey is left to say either, “Shephard Fairey: Halfsies” or “Shephard Fairey: Do You Take Checks?”

Media:

NPR: Fresh Air: Shepard Fairey: Inspiration Or Infringement?

If you don’t see the audio player above, you can switch to Firefox or Click here to listen to the podcast

Los Angeles Times Video: Hope: Shepard Fairey and Barack Obama

Sources:

Image: (FILES) People walk past Shepard Fairey’, retrieved from http://www.boston.com/ae/specials/culturedesk/FILES-US-POLITICS-INAUGURATION-PORTRAIT_001.jpg on 01/13/2011

Shepard Fairey Settles Case, Collaborates With AP Instead by Marina Galperina, retrieved from http://animalnewyork.com/2011/01/shepard-fairey-settles-and-collaborates-with-ap/ on 01/13/2011

Barack Obama artwork case settled, retrieved from http://www.bbc.co.uk/news/entertainment-arts-12170620 on 01/13/2011

Image: Giant/OBEY, retrieved from http://www.graffiti.org/faq/kataras/kataras_fig3Fairey.jpg on 01/13/2011

Obama photo: Mannie Garcia (AP)/Obama image: Shepherd Fairey, retrieved from http://www.boingboing.net/2009/02/09/milton-glaser-weighs.html on 04/09/2009

Obama “Hope” Image vs. One Lost Shephard by Joe Bustillos, retrieved from http://joebustillos.com/2009/04/10/obama-hope-image-vs-one-lost-shepard/ on 01/13/2011

Shepard Fairey: Inspiration Or Infringement? NPR Fresh Air interview, retrieved from http://www.npr.org/templates/story/story.php?storyId=101182453 on 02/27/2009

Hope: Shepard Fairey and Barack Obama – Los Angeles Time interview/video retrieved from http://www.youtube.com/watch?v=q_EOzZ9iaJQ&NR=1 on 04/07/2009

ICONS: Shepard Fairey, YouTube video retrieved from http://www.youtube.com/watch?v=ZNv-9IOBZZo on 04/07/2009

Save the Prize – Cha-Ching Version

Part of my class at Full Sail University involves issues of Copyright, Fair Use and Creative Commons. One of the videos I share is about the difficulty a particular video documentarian is having securing the rights so that he can share his documentary “Eyes on the Prize”

The video prompted the following video response by one of my students (and my response to his video):

My video response:

Sources:
* Eyes on the Fair Use of the Prize directed and produced by Jacob Caggiano/Center for Social Media, http://www.youtube.com/watch?v=0r0pM1hJGU8 retrieved on 10/22/2009

* Save the Prize by Seann Goodman/OnOttButton, article at http://seanngoodman.wordpress.com/2009/10/16/save-the-prize/, video at http://www.youtube.com/watch?v=y8fvmpRtDb0 retrieved on 10/22/2009.

* Save the Prize – Cha-Ching Version by Joe Bustillos, http://www.viddler.com/explore/joebeebee/videos/17/ retrieved on 10/22/2009.

Convergence Culture: The Power of Media in the Hands of Users

Jenkin’s “Convergence Culture: Where Old and New Media Collide” is part of my course reading and students are always finding great videos of Jenkins on the Interwebs. Here’s a great one that sums it his take on the evolution of media and what it means for the culture and the media industry. Thanks Seann G.

The Creative Commons Solution

Part three of my three part media merry-go-round: Creative Commons (Part 1: Copyright; Part 2: Fair-Use; Part 3: Creative Commons). After I’ve scared them to death with the all powerful Copyright, and confused them with the slippery Fair-Use, it’s time calm the nerves with a little common sense Creative Commons. I wish it was really that simple. So, as before the following is the ongoing working prototype for part 3:
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