Sunday, October 6, 2013

Pay Attention To The Details

By Samuel Lewis Published in The Business of Photography
Pay Attention To The Details

Pinning Down The Fine Print

While there have been many discussions and debates over Pinterest and its business model, one matter that has been largely ignored is the terms of Pinterest's user agreement. What many users of the service don't realize is the obligations they take on when entering into the user agreement and begin using the service. Those who take the time to read the fine print in the user agreement may have something of an eye-opening experience.

After participating in a discussion on Facebook with other photographers who were complaining that their copyrights had been violated by people posting their photographs to Pinterest, Atlanta-based photographer and lawyer Kirsten Kowalski decided to take a look at the fine print in the user agreement. What she found surprised her, so much so that it prompted her to publish an article to her blog explaining why she "tearfully deleted [her] Pinterest inspiration boards."

The first surprise Kowalski encountered related to the terms applicable to content that Pinterest's users "pin" to the site. Users were required to represent and warrant that they're either the sole and exclusive owner of the content, or that they have all "rights, licenses, consents and releases that are necessary to grant" to Cold Brew Labs a license to the "pinned" materials. As a result of some of the outcry regarding overly legalistic terms and conditions in its user agreement, Pinterest revised the terms in April, 2012. However, while the "represent and warrant" language was dropped, the replacement language was effectively the same: Pinterest's users agree that any content they "pin" won't violate any law or infringe the rights of third parties and users grant a license to the "pinned" materials.

This last point—the granting of a license—is particularly problematic. Under Pinterest's agreement, users grant it a license to "use, display, reproduce, re-pin, modify (e.g., reformat), rearrange, and distribute" user content on Pinterest (the license granted also gives Pinterest the right to grant sublicenses to user content to third parties). The problem with granting such a license is that unless you own the rights to the material that you're "pinning" on Pinterest, or otherwise have the necessary authority from the person who created the material, you don't have the ability to grant a license to Pinterest. Just as you can't lawfully sell property that you don't own, you can't grant a license with any greater rights than you have.

It was this license problem that prompted Galen Moore, web editor for the Boston Business Journal, to stop using Pinterest one day after he established an account with the service. Moore's intention was to create pinboards with the "kinds of content that we handle that have a visual appeal," such as architects' renderings and other images. "Unless you know you have a 'worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license,' you'd better tread carefully." Moore concluded with the admonition, "If you operate a business, or have any net worth to speak of, I recommend a careful read of the fine print."

While the "pinning" or copying of an image to Pinterest may be a fair use depending upon the circumstances, fair use doesn't give the user the ability to grant a license to use the image. Only the owner (or an authorized licensee who has the right to grant sublicenses) of the image has the right to grant licenses. Thus, unless the photographers have posted their images to Pinterest, odds are good that Pinterest's users simply don't have the right to grant the rights required by the user agreement. Beyond constituting a breach of the user's agreement with Pinterest, the inability to grant a license also creates the potential for a claim of copyright infringement.

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