Earlier this year I wrote an article called “ Pinterest and Why Crafters Love It!” Since then, Pinterests’ shiny image has gotten a little tarnished. Unclear and contradictory Terms of Service, the hijacking of affiliate marketing links, and the fear of intellectual property infringement are now causing artists and crafters to delete their pinboards and install the “No Pin” meta tag.
But should YOU?
Here to explain is guest-author Juliann Krute. First, a bit about Juliann herself:
Juliann Krute is a former intellectual property attorney who had to retire very early due to disability. She has a J.D. from the University of Texas and an L.L.M. in intellectual property and information technology (emphasis on copyright and the internet) from Queen Mary College, University of London. Now she spends her time as an avid crafter, tweeting daily as @TheSickChick and occasionally blogging on The Sick Chick’s Constantly Crafty
(http://thesickchick.com/crafts). Her current major projects include founding a charity to help chronically ill and disabled adults with arts and crafts. She is based in Austin, Texas.
And now… the Perils of Pinterest!
Perils for the Pinterest User
I pin my own images, is there anything I need to know?
I admit it, even though I am a former lawyer I donâ€™t read the fine print with every website I join. This time those pesky terms were not exactly standard and it was a big surprise to find out that I had agreed to this:
â€œBy making available any Member Content through the Site, Application or Services, you hereby grant to Cold Brew Labs a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content only on, through or by means of the Site, Application or Services.â€ (http://pinterest.com/about/terms/)
This may look like gobbledygook to you and just like what you see on hundreds of other websites, but there are some key differences. Most importantly if you pin your stuff you are giving them to right to *sell* your images. Now this is only in the context of Pinterest and any applications or services it may offer, but since we have no idea of the direction Pinterest may be headed in the future, we donâ€™t know what sort of form this might take. They would not have to give you any of the money they make selling your images (or selling access to your images; I suspect this was written to cover paid accounts in the future but there is no way to know for sure). Also you canâ€™t opt-out of any sales in the future because the license you are giving them is irrevocable, meaning you canâ€™t undo it or change your mind later, not even if you take your stuff off Pinterest. Further, even if you remove the image from your website Pinterest is under no obligation to remove the pins to that image.
This has made me and a lot of other people seriously reconsider putting our stuff on Pinterest. I have no idea what they have in mind that might involve selling but I donâ€™t think I want them profiting off my work and not giving me anything.
This is not the same as Facebook or Google or anyone else as none of the major websites I am aware of reserve the right to sell your images. I suspect they have used this language either, as I said, because they might introduce paid accounts in the future or they just have overzealous lawyers who want to protect them from any possible lawsuit. But in any case, this is what youâ€™ve agreed to if you use Pinterest and we really donâ€™t know if or how they might take advantage of these rights in the future.
I pin images I find around the web, am I doing anything wrong?
Pinterestâ€™s pesky terms rear their head again. Although their help and etiquette guides tell you to go forth and pin things you find around the net, their terms say exactly the opposite:
â€œYou 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 Labsâ€™ 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 partyâ€™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.â€
In laymanâ€™s terms, this means you are only supposed to pin things you own and can give those broad licenses for I talked about above. It also means you promise not to infringe anyoneâ€™s intellectual property, even though you probably donâ€™t realize that pinning someone elseâ€™s image may be infringing on their rights.
As a lawyer, my head spins. I donâ€™t know what the legal ramifications are of telling users to do something while also prohibiting them from doing it. I do, however, know that Pinterestâ€™s basic position is that any copyright violation is not their fault, itâ€™s the fault of the user and that any blame or responsibility should fall on the user.
You may wonder why it matters if you pin someone elseâ€™s image. The issue here is the way Pinterest handles images: they keep a full size copy of the image you pin on their servers. This is different from how Facebook and Google handle images, those sites only display a thumbnail and make you click through to the original site to see the full version. Most of the crafters Iâ€™ve spoken to say they donâ€™t care if their images are reposted by Pinterest as long as the pin links back to their site — they love the free exposure and additional traffic generated by Pinterest users who click on the image to read the accompanying blog post or see the Etsy listing. However many visual artists — particularly photographers and comic/graphic artists — I have talked to are very opposed to this. If you post a full sized image of a comic, there is not much incentive for the viewer to then click through and see the original image, after all they have already seen the whole thing. The same can apply to photographs and artworks but with the added problem that if a work gets too much exposure on the internet it can decrease the value to the owner. (Some people donâ€™t want to pay to own or use an image that everyone has already seen or that has really made the rounds on the net, thus reducing what the artist can charge for it. Also some photographers and graphic artists will sell exclusive rights to use their images and remove them from their website once they are sold, but those images remain on Pinterest and the people who paid for exclusive rights may be angry about that.) So while most everyone agrees that copyright law needs to be changed to better deal with the internet I hope you will agree with me that it should be up to the person who made the image to say where and when it will be used.
A lot of people believe that once something is posted on the internet is it fair game for anyone to use in any fashion and that if people donâ€™t want their stuff being used by all and sundry they shouldnâ€™t put it online. But this is not the law, nor do I think it should be. So for now the mechanism of Pinterest is violating copyrights by making copies of images even though the owners didnâ€™t give them permission.
So to make this very clear: when you pin something Pinterestâ€™s system creates a copy of the image. Then because their terms say that youâ€™re not supposed to pin anything you donâ€™t own, they will get to blame you if the owner of that image complains or even sues. Pinterest will take down images if a copyright owner asks them to do it (see below) but this doesnâ€™t mean that the process of pinning (as it works now) is not violating copyright to begin with. In fact they wouldnâ€™t have to remove the images at all if what they were doing was completely above board. Worst case, you wind up getting sued because youâ€™ve pinned images from a major corporation and they donâ€™t like it. Even if Pinterest takes it down on their request they are still allowed to sue you, but they are not allowed to sue Pinterest. Got it? Sorry, I know itâ€™s kind of confusing.
The chances of someone going after you in court over pinning their images is pretty small, I must admit. But those odds get worse if you are pinning from a business account. The only advice I can give you is be careful what you pin.
Am I responsible for any copyright violations if I re-pin an image?
Unfortunately the answer here is that no on really knows. If you are re-pinning an image that was originally pinned by the image owner, then youâ€™re fine. However itâ€™s hard for you to know if that is the case. If the image was first pinned by someone else other than the owner, I really canâ€™t say if youâ€™d be responsible. There are no clear rules on this matter. Probably no one will do anything about re-pins but this is one area where the law is just too vague to be sure. I canâ€™t give you any guarantees that youâ€™d be safe.
What about affiliate marketing?
Pinterestâ€™s main way of making money at the moment (there will surely be more in the future) is to change the links in pins to insert their own affiliate codes. (This means that if you pin a book cover from Amazon they will add their affiliate link so if someone buys this book Pinterest will get a commission). There is nothing illegal about this and it is a way for them to make money without disturbing anyone. They say that if you have your own affiliate code in the link they will not change it to their own affiliate code, but some people have said that it has happened to them, so just be careful and check your link again after it is posted to be sure it hasnâ€™t been changed. Also, if you are a business that uses affiliates to promote your own products and have been pinning links to your own stuff, please note that Pinterest is probably going to sign up to be one of your affiliates (they have a company that does this for them for almost any affiliate marketing program in the world) so youâ€™ll have to pay them to use links you pinned yourself. If possible you may want to create some sort of affiliate code that is for your own company so that you wonâ€™t be paying Pinterest but you may still have to pay the processing fees your affiliate service charges. I donâ€™t know much more about this so please consult with your affiliate service for more information.
Perils for the Image Owner
If other people pin my images, does Pinterest have the right to sell them?
(If you didnâ€™t see my section above on pinning your own stuff itâ€™s a good idea to read it now so you know what I am talking about regarding their terms and rights to sell images, etc.)
Legally speaking they do not have any rights because you have not given them any. But since we donâ€™t know what Pinterest plans to do with these images that might somehow involve selling, it is impossible to say if they might try something and then blame it on the user who pinned your image if your work gets used in a way you donâ€™t want. This is a really tricky area. They may also try to claim that if you give people permission to pin your images (see below) that you are agreeing to their terms but this would not hold up in court.
I donâ€™t want other people pinning my images, what can I do?
Pinterest has in the last few days created a way for site owners to prevent people from pinning images on their sites. This means you put a certain code in your website (that is only seen by machines not people) that tells Pinterest not to pin anything. You can find more information about the No Pin tag on Pinterestâ€™s help page (http://pinterest.com/about/help/) at the bottom under â€œWhat if I donâ€™t want images from my site to be pinned?â€
If your images are hosted on another site that you donâ€™t directly control (like an image host) then you will need to ask your image host if they can help you. Flickr does not allow pins on certain images, such as those where sharing is not permitted. (For a good explanation of how Flickr is handling this please see this blog post by Aaron Hockley: http://aaronhockley.com/venturebeat-flickr-pinterest-copyright/) I hope that Etsy will soon follow suit but I donâ€™t see that they have addressed this issue yet.
The No Pin tag is not foolproof, however. Experts are predicting that it is only a matter of time before someone comes up with a way to hack around it. But hacking around it is in the same category as people downloading your image, reposting it to another web site and then pinning it. Some people will go out of their way to copy your image, but the vast majority will respect your wishes. You canâ€™t stop everyone, but this helps you stop the honest people who donâ€™t mean to violate your copyright.
Pinterest has not said if they plan to remove pins linking to website that later use the No Pin tag. It would be a good thing of they did but for now your best remedy if someone has pinned your images from your site (or even copied your image to another site and then pinned it) is to follow the directions on Pinterestâ€™s Copyright page (http://pinterest.com/about/copyright/) and tell them to remove your images. You can search for pins to your blog using this format: http://pinterest.com/source/**yourblogURL**/ (putting your actual URL in place of **yourblogURL**). Unfortunately I do not know of many ways to search for cases where people have posted your image to another website and then pinned them, but I know plenty of people have found their had been posted that way so there are some tools out there. If you know of a way to do this please comment below!
I donâ€™t want people copying my whole blog post into the pin description because then no one will come to my site to read it. Is there anything I can do?
Pinterest have recently changed their software so that the text that accompanies a pinned image can only be a maximum of 500 characters, so unless your post is very short people will no longer be able to copy and paste the whole thing. (It should be noted that they are only â€œtestingâ€ this limit, it may change or even be removed in the future.) I donâ€™t see anything to say that they are going to go back and change any pins that are already over 500 characters so if someone has already posted your article you will need to contact Pinterest (as I explained above) to have them remove it.
I like people pinning my images, do I need to do anything?
Youâ€™re not required to do anything to allow people to pin images on your web pages. However there is a growing number of people who are not going to pin without permission so it would be nice if you could in some way indicate to those people that it is OK to pin your stuff. One way would be to have a â€œPin Thisâ€ Widget, which is available for several blogging platforms. Another would be to find a way to say it on your site. Maybe someone can come up with a Pin-Friendly blog badge? I donâ€™t know how you could handle this on Etsy or other image sites.
Also if you are comfortable with anyone, not just Pinterest users, reusing your images as long as they give you credit and a link back, itâ€™s a great idea to say so. That way not only pinners but also bloggers whoâ€™d like to use one of your pictures when they blog about you would know that itâ€™s safe to do so without getting your permission first. You might even consider using a Creative Commons (http://creativecommons.org/) license to make it clear what you are willing to let people do. Then instead of saying â€œCopyright 2012 by Meâ€ you would have your site say â€œCopyright 2012 by Me, except where noted this work is licensed under Creative Commons Attribution-ShareAlike 3.0.â€ (or whatever version of the license you choose, you can use their easy form to figure out what works best for you and they give examples of how to write your copyright notice). You can also use use a Creative Commons license on Flickr (http://www.flickr.com/creativecommons/) and many other image hosting sites. One small thing to keep in mind is that these licenses require attribution but not a link back. Many people will give a link anyway but this does not require them to. If the link is important to you do not use CC but write your own terms and post them somewhere on your website where people can easily find them.
I realize that this has been a lot to take in. Pinterest continues to be a vibrant community with much to offer to crafters, but we probably need to start taking a little more care in what and how we pin. At the very least itâ€™s wise to follow good Pinning Etiquette and carefully consider whether you want to pin your images or want to allow others to do so.
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