In the course of setting up an online account, I was presented with a license agreement spanning 24 screens. As I started to review the terms of the agreement, I was struck by the thought that most people’s eyes would glaze over by the third or fourth screen, assuming they even made it that far. And since the window with the license agreement only required users to scroll down the first page before being able to click "accept" and move on, I suspect that a majority of people click "accept" without ever seeing page two, much less the entire agreement.
However, in many jurisdictions, all of the terms of the service’s agreement would be enforceable, even if one cavalierly skipped the last 23 screens worth of terms and conditions. The reality is that many courts will have little sympathy for someone who enters into an agreement without reading it, receives benefits under the agreement and then complains when he or she must honor the bargain made. Thus, ignoring the terms when entering into the agreement may lead to serious repercussions later.
If there’s an instance where people generally disregard contract provisions, it’s when they’re using social-media websites and services. However, as the old axiom provides, there’s no such thing as a free lunch. When using a free social-media website or service, there’s commonly some benefit that the user confers on the host or provider of the service. That benefit may be as simple and innocuous as allowing the service to present the user with advertising; however, the benefit may be as complex as any other contractual relationship, which may result in far-reaching and even unexpected consequences.
For example, one of the unexpected consequences may involve the sale of your personal information to other companies. If the service only has your email address, this may only result in some additional unsolicited emails appearing in your in-box. If you also give the service your cell phone number, the sale of your personal information may result in unsolicited text messages, too.
However, the user agreement need not be limited to issues such as your personal information. In extreme cases, it could even require that the user indemnify and defend the company against claims relating to your use of the service. Or, stated differently, the agreement could require a service’s users to defend the business model of the company providing the service.
As with so many social-media websites, there’s no free lunch with the social-media website Pinterest (www.pinterest.com). If you’re unfamiliar with Pinterest, its creator, Cold Brew Labs, Inc., refers to the service as an online pinboard or virtual pinboard, with the social-media goal of connecting people through their common interests. The service allows users to "organize and share beautiful things [found] on the web" by "pinning"—in some cases, linking to information found on the web with the ability to follow the link back to the original site; in other cases, copying the content without any link back—and suggests that its users can use the service to "plan their weddings, decorate their homes, and organize their favorite recipes." The service also allows users to browse other users’ pinboards, to see what other users have pinned from the Internet, and to "re-pin" information and images that other users "pinned." Some photographers have used Pinterest to assemble inspiration boards, or as a tool for collecting information in advance of a shoot, and some wedding photographers have used Pinterest to permit their clients to begin assembling ideas for shoots. Dallas-based fashion and wedding photographer Jessica D’Onofrio uses Pinterest to work with clients. "I create a pinboard that I invite [the] client to join where she can pin her inspiration for a shoot, or for the wedding day…." D’Onofrio also uses Pinterest to attract additional clients. "While not my original intent," writes D’Onofrio, "I HAVE received solid leads from [Pinterest]. And, perhaps the fact it was not the original intent, is why it worked…I think if [photographers] just post a big display of their personal images and expect the rest of the work to be done by repins, they’re missing the point. It needs to be something [photographers are] using in an interactive format that includes participation from brides, friends and other like-minded demographics. It’s a dialogue, not a monologue."
Others aren’t convinced that Pinterest is an effective referral source or business-generation resource. PhotoShelter cofounder Allen Murabayashi suggested on his blog that "for photographers, [Pinterest] simply isn’t a good referral source because it doesn’t lead to sales." After looking at statistics relating to Pinterest, and noting that the service "drives a ton of page views," Murabayashi suggested that "Pinterest is an aspirational pin board…[where] [t]he ‘Likes’ and ‘Repinning’ help to validate a user’s curatorial skills. And like every social media site in the world, the service is a tool of self-expression." While acknowledging that Pinterest "is an awesome marketing tool for retailers," Murabayashi nonetheless concludes, "Pinterest hasn’t shown itself to be a good referral mechanism for service-based offerings (e.g., hiring you for a wedding). And, if you compare the number of repins for the fashion category vs. the arts category, you’ll begin to understand that spending time on Pinterest as a marketing activity simply doesn’t pay off for photographers.
…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.
While Pinterest has already developed something of a following, the service isn’t without controversy. For photographers, the more common debate topics involving Pinterest are whether it’s skirting copyright law, whether it potentially encourages copyright infringement and whether the increased exposure to a photographer’s work is worth the hassle of having one’s copyrights infringed and enforcing one’s rights.
Some content creators are less than enthusiastic about Pinterest because the "pinning" of content may reduce website traffic. Digital photographs can be "pinned" in such a way that the image is simply copied to Pinterest, with no link back to the source website. Thus, depending upon how the content is "pinned," the act of "pinning" may simply involve the copying of copyrightable material without the content creator’s consent. In light of these issues, some content creators are understandably critical of Pinterest.
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.
Paradoxically, Pinterest’s user agreement potentially makes its users liable for claims of infringement even though a particular user’s use of the image may constitute fair use. Under the agreement, Pinterest disclaims all liability relating to its users’ use of the service. It also obligates users to indemnify and defend Pinterest from any claims relating to the users’ use of the service, the content pinned or any other breach of Pinterest’s user agreement. If the user didn’t have the right to grant a license to Pinterest, and Pinterest is sued for infringement, the indemnification provision makes the user responsible for not only the amount of any judgment awarded against Pinterest for infringement, but also for the cost of defending Pinterest against the claims of infringement. It was this scenario that greatly troubled Kowalski. As she explained in her blog, the indemnification provision means that "if some photographer out there decides that he or she does not want you using [the] images as ‘inspiration’ or otherwise and decides to sue you and Pinterest over your use of the [the] images, you will have to hire a lawyer for yourself and YOU will have to hire a lawyer for Pinterest and fund the costs of defending both of you in court. Not only that, but if a court finds that you have, in fact, violated copyrights laws, you will pay all damages assessed against you and all damages assessed against Pinterest. OUCH."
Pros On Pinterest
|Some website operators and content creators don’t mind Pinterest, primarily because the "pinning" of content from their websites may result in additional visitors to their websites. Tampa-based photographer James Broome has used Pinterest since September, 2011, and his experience with the service has been a positive one. As Broome explained on a message board, "[I]t’s nice to get images repinned and to see the traffic to my site from the looks."
However, not all photographers have shared Broome’s experience. Ironically, some photographers have encountered problems when "pinning" their own images from their own websites, and in some cases, users are presented with a sufficiently ominous warning to dissuade them from following the link or seeing the source website. Al Diaz, a staff photographer for The Miami Herald, "pinned" his own images, which were either published on his blog, AlDiazPhotoBlog.com, or the Herald‘s website, or both. However, when a Pinterest user—even one that "re-pinned" one of Diaz’s images—attempts to view the source website, Pinterest presents a warning page with a large exclamation point and bold-faced word "Warning!" together with the message that "[t]his link redirects visitors to another site—it may link to spam or other inappropriate content." At the bottom of the warning page, three options are provided: Back to Pinterest, Continue to Link, More Info. If More Info is selected, Pinterest advises that "[u]sers have reported that this links to spam or other inappropriate content." Despite sending several messages to Pinterest’s support team attempting to ascertain why his blog and the Herald‘s website generate such ominous warnings, Diaz has yet to receive a response from Pinterest.
Pinterest’s user agreement also potentially makes its users liable for defending claims of infringement for which Pinterest may be able to claim a limited immunity. The service has positioned itself to take advantage of the safe harbor for online providers contained within the Digital Millennium Copyright Act (which is now part of the Copyright Act of 1976 as amended). Under this safe harbor, an online provider can avoid liability for copyright infringement if the online provider registers an agent to receive notices of copyright infringement, and "responds expeditiously to remove, or disable access to, the material that is claimed to be infringing…." Thus, while Pinterest may be able to avoid liability for its users’ infringing activities, no such safe harbor exists for its users. Nothing in Pinterest’s user agreement requires it to take advantage of the safe harbor and, in fact, Pinterest’s copyright policy states that "Pinterest will take whatever action, in its sole discretion, it deems appropriate…" after receiving a notice of alleged infringement.
Worth The Risk?
Ultimately, the decision of whether the benefits of using Pinterest outweigh the risks are very much a business decision and any such decision should be as informed as possible. It’s also important to keep in mind that Pinterest, like many other social-media sites, is constantly evolving. Pinterest has already revised its user agreement once in response to complaints from its users, and it stands to reason that the user agreement may continue to change over time.
In response to Mura
bayashi’s blog article, San Francisco-based photographer Jim Goldstein posted a comment giving the issue some perspective. "I gave up on Twitter after two weeks, thinking it was useless.
I came back a few months later and found great use in it. The lesson learned is that it’s important to be open-minded and to keep a watchful eye on the service as it evolves. What Pinterest is today may not be Pinterest in the future. Social media web sites are malleable, both in how the founders shape them and how end users creatively use them. The future could be equally bright or dim with Pinterest, but I like to think half that equation falls on the photographer using the service. Photographers need to be creative in other ways beyond the camera."
Even if Pinterest ultimately proves itself to be a valuable tool to photographers, serious consideration needs to be given to the user agreement and whether the intended use of the service comports with the agreement. No matter how great the utility, if the service can’t be used without violating the user agreement, the only prudent course is to wait until Pinterest sufficiently revises the terms so that they’re consistent with the manner in which the service is used.
Samuel Lewis is a board-certified intellectual property law specialist and partner at Feldman Gale, P.A., in Miami, Fla., and a professional photographer who has covered sporting events for more than 25 years. He can be reached at [email protected] or [email protected].