Pinterest Part I: How To Use Pinterest Legally
When I started an online business, I knew that I would have to invest in marketing through social media- Facebook, Instagram, email marketing…but I was completely caught off guard when I found out that Pinterest can be one of the most effective tools to drive traffic to your website.
To be honest, any time businesses start using a social media platform for marketing purposes, I know that legal disputes are soon to follow. So while Pinterest seemed like a very harmless platform, I wanted to do as much legal research as I could before I started using it for my own business purposes.
The good news? The Pinterest team seems very responsive in updating their policies to protect both owners of content shared on the platform, as well as users. As a lawyer, I also have to point out that Pinterest’s terms of use are some of the most user-friendly that I’ve seen: after all of the requisite legal jargon has been stated, they include a blurb translating each paragraph. This is such a great practice to implement for any business!
The bad news? When you’re sharing photos on Pinterest, there’s a chance you could be committing copyright infringement by pinning those images. Because we are dealing with images, an overview of copyright law is helpful:
Copyrights protect original works of authorship (aka, artistic or literary expressions), and apply to every photograph. If you have created, or “authored” an artistic or literary work and expressed it in a “fixed form”, then you automatically have ownership rights under copyright law. Copyright law extends to everything from photographs, song lyrics, or calligraphy prints to blog posts and Instagram captions. While you don’t need to take any formal steps to own the copyright, you have to register the copyright with the U.S. Copyright Office to be able to sue for copyright infringement (aka, when someone steals your work).
So, the biggest issue with Pinterest is that by hosting the sharing of images on their own server, that action removes references to the original source of the image. So, the copyright holder may not even know that their image has been shared on Pinterest, who knows how many times. If the original creator’s work was shared without their knowledge or permission, that sharing is copyright infringement, and that copyright is infringed every time someone shares the image. Sure enough, in recent years, some photographers have been suing Pinterest, claiming the platform supports or facilitates copyright infringement. And a few years ago, a photographer who was actually an attorney as well shut down her account, citing that she wanted to avoid those copyright issues.
That all sounds very dramatic of course, but at the end of the day, we know that Pinterest must have systems in place to allow us to pin those images legally. So, below is a breakdown of how to do just that.
First, What Can Be Shared On Pinterest?
To use Pinterest legally, you first have to know what’s allowed to be pinned on Pinterest, and what’s not. This article will cover the rules for personal Pinterest boards, but if you’re using Pinterest as a business, you have to abide by their business service terms. Generally speaking, you can’t pin nudity, potentially harmful content, hateful or violent content, or content you don’t have permission to post. This last point is key; did you find a photo online, but you have no indication the original owner wants it shared on Pinterest? You can’t just decide for yourself.
In their terms, Pinterest specifically says that you are responsible for all “user content” that you post. “User Content” is another way of saying “the photos you are pinning”. In the words of Pinterest, “if you post your content on Pinterest, it still belongs to you but we can show it to people and others can save it”. In other words:
1. You’re free to share any of your own content on Pinterest, but expect it to be shared.
2. You’re allowed to repin other images on Pinterest, contained within the space of Pinterest. But, you can’t transfer them to another platform (unless it’s your own content).
3. You are responsible for everything you do with the photo on Pinterest. If the image you are pinning doesn’t accurately credit the author, you would be responsible for any potential copyright infringement.
Remember, those terms of service say you’re responsible for anything you post. Here’s an example of how that could go sideways:
Say I put a picture of my office on this blog post, with no option to pin it. Jenny comes along and likes the photo, so she saves the image and pins it to Pinterest, with a link to her own blog post showcasing a tutorial for shooting photos indoors. Because it links to Jenny’s blog, it looks like it’s her photo. Sally comes along and pins the image to her board about photography. Both Jenny and Sally could be liable for copyright infringement, even though Sally would have no idea that the image was not Jenny’s, to begin with. Because I was not credited, my copyrighted work was essentially misappropriated to someone else’s credit.
How Do I Pin Photos Legally?
Talking about copyright infringements makes Pinterest sound a tad dramatic, but it shouldn’t dissuade you from using the platform. You just need to make sure you do so legally. Of course, you can pin your own stuff with no problem. Legally, it’s yours, so pin away! You can pin any of your own photos, link to your site, etc.
But if you are pinning someone else’s photo on Pinterest:
If you are pinning the item onto Pinterest (meaning you found it in a blog post, etc, and want to add it to your board), make sure you have the permission of the owner of the photograph to pin it. If you are looking at a blog and there is the little Pinterest icon on the photo, that person is giving you their implied consent to pin it. So, pin away! But, if instead, you see the © symbol (and no Pinterest icon), that person is pretty clearly laying claim to the image, and you shouldn’t pin it.
If you aren’t sure whether or not you have implied consent, ask the original owner. Their express consent will be sufficient.
If you find a photo online you like, but you don’t see a way to pin it, don’t try to crop it and then credit it as your own. You may have heard that is fair under the “Fair Use” doctrine, but that likely would not be sufficient.
If you want to pin a photo that is already on Pinterest, take the time to check the source of the original owner. Remember my example of Sally and Jenny? This is the scenario you are trying to avoid. Make sure that the original source is credited properly.
If you can’t find the original source, do an advanced Google search. Find the section that says “usage rights”, and scroll down until you find “free to use and share.” These are the images you can pin. Anything that is no longer under copyright protection is fine (old pictures, old books, etc). Anything that is public domain is also free for you to use.
If you’ve checked the original source and it’s credited properly, consider crediting the photographer in the caption, and rewriting your own caption. This isn’t a legal requirement, but just generally a good business practice.
If you want to save something for your own personal use that is already on Pinterest, think again. Pinterest’s terms of use state that you can’t take content off of the platform. So, for example, don’t find a photo you like on Pinterest and download it to your computer to use it on your blog (unless you have the original owner’s permission).
If you are running a contest on Pinterest, be explicitly clear that it is, in fact, a contest entry. If you’re using hashtags, put the word “contest”, or “sweepstakes” in there. Don’t just use the hashtag “sweep”: according to the FTC, that is not clear enough.
Keep in mind that if you pin things too many times that aren’t allowed to be pinned, Pinterest is well within its rights to shut your account down. Practically speaking, even if you accidentally are committing copyright infringement, most people won’t take it to litigation. But there’s no reason to open yourself up to liability.
What If You Find Misuse of Your Own Content?
If you find that someone has pinned some of your content without your permission, you need to ask that the content is removed. In that scenario, try to find the person’s contact information, and just politely ask them to take it down. The vast majority of the time, it was accidental, and that person is more than happy to take it down. If that doesn’t work, send a cease and desist letter. You can send one yourself, or have a lawyer send one for you.
If neither of those steps works, follow the DMCA takedown request steps laid out in Pinterest’s terms and conditions. Basically, you notify Pinterest of the infringement, and they’ll “take whatever action they think is appropriate” (in their words). Pinterest is very cognizant of the fact that it’s in their interest to prevent copyright disputes, so they will likely jump at the chance to help you out.
