Originally appeared in the June issue of the Washington State Bar Association Bar News. Reprinted with permission from the Bar News.

Pinterest is a social media site that allows users to create and manage collections of images surrounding their interests and hobbies.  It is like a virtual bulletin board or scrapbook, where you “pin” images for inspiration and sharing.  Many users are unaware that these shared images are protected by copyright law.  Pinterest boards can be shared with followers and fellow pinners; pinned content can be “repinned” or commented upon.  The popular site launched in beta in March 2010 and reached it’s one millionth unique visitor by July 2011.  In 2012, Pinterest increased its site traffic by 52 percent between January and February alone. 

Cold Brew Labs, the owner of Pinterest, came under fire earlier this year after its terms and conditions were exposed and discussed across the internet as inflammatory and contrary to copyright law.  In an unusual step, Cold Brew Labs listened to the criticism and released new terms and conditions that go into effect on April 6, 2012.

Do these new terms and conditions address and fix the problems?  This article compares the original and new versions.

 Copyright becomes a problem

In late February, a photographer and lawyer, Kirsten Kowalski, wrote a blog post: “Why I tearfully deleted my Pinterest inspiration boards.”  In this post, Kowalski outlined the copyright and liability issues in Pinterest’s terms and conditions.  She concluded that a pinner was taking on a huge legal liability by pinning items to a Pinterest board.  Kowalski’s post went viral and suddenly this issue was the talk of the internet.

Under the original terms, what was a pinner’s responsibility to the owner of an image when pinning it to a Pinterest board?  And, what was the pinner’s responsibility to Pinterest? 

The key to answering these questions was contained in the original Pinterest terms and conditions.  In short, these stated that a pinner/user was representing to Pinterest that she or he was either the owner of the copyright of the image posted or had been granted permission from the owner.  The terms and conditions were as follows:

You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Site, Application and Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available through the Site, Application and Services or you have all rights, licenses, consents and releases that are necessary to grant to Cold Brew Labs the rights in such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or Cold Brew Labs’ use of the Member Content (or any portion thereof) on, through or by means of the Site, Application and the Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

Pinterest’s terms and conditions then went on to place on the pinner/user the entire responsibility of abiding by copyright law, and Pinterest took no responsibility itself for validating copyright ownership:

YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, APPLICATION, SERVICES AND SITE CONTENT REMAINS WITH YOU.

To make matters worse, Pinterest then added a one-way indemnity clause:

You agree to defend, indemnify, and hold Cold Brew Labs, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Site, Application, Services or Site Content, (ii) your Member Content, or (iii) your violation of these Terms.

In other words, if Pinterest was sued for copyright infringement by someone whose image a user pinned, not only was the user responsible for defending the lawsuit — he or she was also responsible for paying all of Pinterest’s costs and attorney fees as well.   Finally, just to drive home the point, Pinterest went on to disclaim any liability to its pinners and to limit its aggregate liability to $100 for any and all claims by any pinner or anyone making a claim related to Pinterest. 

What did all of this legal terminology mean for the Pinterest pinners out there?  Don’t pin an image onto your board unless you 1) properly credit the source and 2) have permission from the image owner to pin the image.

Pinterest proposes solutions

The need to give credit and receive permissions in order to pin (or repin) an image could effectively kill the easy use of Pinterest — which makes it so popular.   Pinterest offered a solution: a “nopin” metatag that can be placed on a content site that essentially states “don’t pin this image.”  The problem with this so-called solution is that anyone can still right-click and save the image and then pin it with no credit given, thus easily sidestepping the supposed solution.  The onus is on the owner of the copyright.

Copyright lawyers have been curious to see if Pinterest would find a real solution to address the copyright issues — or if the site would at least step up and take a more participatory role in enforcing copyright ownership and stop trying to pass the legal buck to the pinners.   It was a short wait.  On March 24, 2012, an email containing the following message went out to all Pinterest users:

Over the last few weeks, we’ve been working on an update to our Terms. When we first launched Pinterest, we used a standard set of Terms. We think that the updated Terms of Service, Acceptable Use Policy, and Privacy Policy are easier to understand and better reflect the direction our company is headed in the future. We’d encourage you to read these changes in their entirety, but we thought there were a few changes worth noting.

Our original Terms stated that by posting content to Pinterest you grant Pinterest the right to sell your content. Selling content was never our intention and we removed this from our updated Terms.

• We updated our Acceptable Use Policy and we will not allow pins that explicitly encourage self-harm or self-abuse.
• We released simpler tools for anyone to report alleged copyright or trademark infringements.
• Finally, we added language that will pave the way for new features such as a Pinterest API and Private Pinboards.
• We think these changes are important and we encourage you to review the new documents here. These terms will go into effect for all users on April 6, 2012.

Like everything at Pinterest, these updates are a work in progress that we will continue to improve upon. We’re working hard to make Pinterest the best place for you to find inspiration from people who share your interest. We’ve gotten a lot of help from our community as we’ve crafted these Terms.

Language and right to sell

How did Pinterest do this time around?  The first thing that stands out about the new terms and conditions is the style and language.  Instead of the cold legalese that the original set of terms and conditions was written in, the new terms and conditions are expressed in very friendly, plain English style.  Clearly, an attempt was made to get away from the formal legal structure and style that many people find off-putting and hard to understand.

Pinterest also removed the language stating that Pinterest has the right to sell your pins – although it still has a worldwide license to your pins.  The license illustrates another change that Pinterest made.  With the exception of repins by others who do have a perpetual license, you can now delete your boards and pins.  After a reasonable amount of time, Pinterest will entirely delete your content from its site.

Copyright

How do the new Pinterest terms and conditions address the issue of legal liability for copyright infringement?  Let’s take a look.

d.         Your responsibility for your content:

ii.To third parties. Pinterest values and respects the rights of third party creators and content owners, and expects you to do the same. You therefore agree that any User Content that you post to the Service does not and will not violate any law or infringe the rights of any third party, including without limitation any Intellectual Property Rights (defined below), publicity rights or rights of privacy. We reserve the right, but are not obligated, to remove User Content from the Service for any reason, including User Content that we believe violates these Terms or the Pinterest Acceptable Use Policy. It is important that you understand that you are in the best position to know if the materials you post are legally allowed. We therefore ask that you please be careful when deciding whether to make User Content available on our Service, including whether you can pin or re-pin User Content on your boards. To learn more about copyright and fair use, please click here for some links to useful third party resources.  [Italics added.]

Pinterest removed the legal representation by pinners that each and every pin is in compliance with copyright law.  With respect to third parties, Pinterst now only requires that you pin only those items that don’t violate a third party’s copyrights.

When you pin an item of content onto your Pinterest board, you should do your best to give credit to the original source and verify permission to pin or repin (look for the handy “pin me” buttons starting to appear on sidebars of webpages).  However, your legal position has changed under these new terms and conditions.  Provided you have a defense to a copyright claim by a third party, you are no longer in violation of these new terms.

Unfortunately, in the event there is a copyright claim and you are found to have no defense, there is no good news.  The new terms and conditions still contain the same language:

YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICES, PINTEREST CONTENT, AND USER CONTENT REMAINS WITH YOU AND YOU USE THE SERVICES AT YOUR OWN RISK.

Also substantially unchanged is the one-way indemnity clause:

You agree to indemnify and hold harmless Pinterest and its officers, directors, employees and agents, from and against any claims, suits, proceedings, disputes, demands, liabilities, damages, losses, costs and expenses, including, without limitation, reasonable legal and accounting fees (including costs of defense of claims, suits or proceedings brought by third parties), arising out of or in any way related to (i) your access to or use of the Services or Pinterest Content, (ii) your User Content, or (iii) your breach of any of these Terms.

So the end result for the pinner remains the same.  Without a successful defense under fair use (and this is an open question), you may end up liable for significant damages.

The “nopin” code that Pinterest started offering to those who don’t want to share their content may have the desired effect.  While offering an opt-out cannot prevent any and all copyright claims, it does give a site owner a much easier path to protect its images — implement the code upfront rather than file a lawsuit later.   Many potential lawsuits may be prevented when site owners implement the opt-out code, lessening the chance their content will be pinned and making less likely a costly legal battle with an unpredictable outcome.

Business uses of Pinterest

The new Pinterest terms and conditions directly address business use of the site.  The original “Pin etiquette” asked that pinners not “self-promote” — which pretty much defeated the use of a Pinterest account to promote a business.  The new “Pin etiquette” no longer contains such language and instead now asks that pinners be “authentic.”

Pinterest is an expression of who you are. We think being authentic to who you are is more important than getting lots of followers. Being authentic will make Pinterest a better place long-term.

The removal of the ban on self-promotion and the switch to the concept of authenticity has led to a great increase in the numbers of businesses using Pinterest as a marketing tool.  Pinterest addresses business accounts in its new terms and conditions by holding the pinner accountable on behalf of the entity:

If you open an account on behalf of a company, organization, or other entity, then (a) “you” includes you and that entity, and (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to these Terms, and that you agree to these Terms on the entity’s behalf.

The big difference for business pinners is that they are likely pinning content that they themselves already own.  By pinning this content, they are not only licensing it to Pinterest but also providing a perpetual license to anyone who repins that content.

Is this something a business really wants to do?  The answer to this question depends on the business and its marketing strategy.  For the most part, the answer is probably yes.  You want to locate your company on a site where a large audience (97 percent female, although this is also changing) is located.  Of course, you should consult your legal team first.

Disturbing content

In addition to copyright and liability issues, Pinterest was also getting bad press over disturbingly popular pro-anorexia and pro-self-harm boards.  To the website’s credit, Pinterest addressed this issue in its new terms and conditions, under its Accepted Use policy.

You agree not to post User Content that:

•Creates a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to yourself, to any other person, or to any animal;

•May create a risk of any other loss or damage to any person or property;

•Seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise;

Pinterest reserved the right to take down any pins and/or boards — found or reported — that violate this Accepted Use Policy.  It remains to be seen how Pinterest backs up its policy with action.

Summary

Did Pinterest get its terms and conditions right the second time around?  It definitely addressed a lot of concerns.  The change in tone and language was purely stylistic and made no substantive difference.  Removing the perpetual license and right to sell was a huge move, as was removal of the pinner’s legal representation that he or she either owned the copyright or had permission to pin the content.  Adding business users was a very successful way to add more traffic to the site.   In spite of these changes, however, pinners should still be wary of the fact that, should there be a nasty copyright action, they could end up paying a very large bill.

For more information on social media, blogging and all other commercial transaction issues, please contact Chris Pothering at cpothering@scblaw.com