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The Promise and Perils of Pinterest

The views expressed are those of the author and are not necessarily those of Scientific American.


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Even making this image for this blog post violates Pinterest's rules.

The Promise – a bold credited, copyright future

Initially, I was enamored by Pinterest, the image sharing and collecting site.  It’s like a visual scrapbook of all the things you love online, and does what Tumblr has neglected to do, and requires a link back to the source of each image.

Amazing. A boon for artists, illustrators and photographers, as well as educators. Science educators can organize class images for students to reference, the image makers get a link back to their sites, helping get their names out there and possibly further exposure and perhaps paying gigs.

Win-win all around, right?

Pinterest even goes so far as to credit the two designers who created their two logos (that I have crudely satirized at left) – Juan Carlos Pagan and Michael Deal.  This is the type of thing as an illustrator online that I really like: respect and shareability.  Pinterest has a lot of vision and wants to give credit where credit is due.

The Problem – why you’re using Pinterest wrong

It’s likely if you’re on Pinterest, you’re using it wrong. I did when I started. I was envisioning a Symbiartic Pinterest board, all the images Kalliopi and I have mustered together on our less than 1-year old blog complete with handy links promoting the visionaries that are exploring the intersection of science and art.

But the problem is, I didn’t have permission from the artists to show off their work on Pinterest. Kalliopi and I are very careful to ask before posting (one of the reasons we do not post with massive frequency – we have to wait on replies). Perhaps, I thought, I could begin to ask artists when I approach them about a Symbiartic feature if they’re willing to go on a Symbiartic Pinterest board as well?

You see, the problem with Pinterest is that right in the Terms of Service, they state you,

“…are the sole and exclusive owner of all Member Content…”

and you,

“agree not to do any of the following: Post, upload, publish, submit, provide access to or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights…”

 

So ask yourself: how many images have you posted on Pinterest that you have permission for? How many are available under Creative Commons Licences or expired copyrights? Have you looked? Are you aware that you’re on the hook (not Pinterest) if someone is suing for violations?

The explosive popularity of Pinterest has rested on people making boards using boards to plan lessons, gather neat-o foltsam from the internet, design dream homes and wardrobes, share jokes, share inspirations and do it all without asking for permission to post those images.

Now, this isn’t the worst thing ever to happen.  Most of the internet relies on sharing, mashing, collaborating and the creativity of free information, including images. I’m sure IKEA or Marvel Comics are not too bothered that their wares are pinned on countless Pinterest boards – it’s free advertising spreading their brands. Even many illustrators won’t mind the extra notoriety and blog traffic they can leverage coming from those handy links-to-the-source Pinterest expects. GeekMom outlines a few ways you can try to adhere to a type of Pinterest etiquette.

But it is interesting that Pinterest’s current growth is resting on increasing violations of copyright.

The Peril – what is it Pinterest wants to sell?

Shortly after I posted on my personal blog, The Flying Trilobite about why I liked Pinterest, Kalliopi and a few other illustration colleagues got into a discussion with me (on the blog and G+) about one weird little clause in Pinterest’s Terms of Service. Typically, I read these very carefully.  I admit, I missed one tiny word this time around.
Sell“.
Pinterest states:

“By 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.” Emphasis mine.

 

Problematically in the same paragraph, Pinterest states: “Cold Brew Labs does not claim any ownership rights in any such Member Content”.

So which is it?  Do they claim ownership to the content or not?  And what are they planning to sell, anyway?  I suspect it’s selling the themes and content of the boards to advertisers – let’s say they notice an increase in the frequency of boards that feature a new teen pop star, they could potentially sell that information to a record label and make a deal for more advertising. Much like Facebook and Google will do with information culled from online profiles.

Or perhaps, something similar to that Twitpic clause that was quietly changed and allowed Twitpic to sell user’s photos to news services without the photographers seeing a dime or even notification. If that’s the case though, why isn’t  Pinterest cracking down more on copyright violations?  You’d think if the plan was to sell to affiliates, more diligence in keeping everyone’s boards clear of images that could land them in legal hot water would be on the agenda.

So potentially they could be planning a line of coffee table books based on popular board topics (“Inspiring Gardens” from Pinterest Press anyone?). Or maybe t-shirts of hipster cartoons. I dunno. We don’t know.

I sent an email and some tweets to Pinterest a month ago asking about these precise issues.  Haven’t heard anything so far.

So when am I deleting my Pinterest board?

That’s right. I still have one. I like to adopt and try out most online services as they roll out to help further my illustration career. You go where the customers and fans are. So for me, it’s a case of risk assessment: is it likely Pinterest is going to suddenly sell off a surreal portrait of Darwin or some winged trilobites to some news or marketing affiliate? and make more money from it than I ever have?   Or will being on Pinterest drive even more people to my portfolio and sites than ever before?  Almost half my online traffic comes from Twitter, so perhaps Pinterest could tip me into sustainability as an artist.

Pinterest is listening, in part because of a high-profile story about a lawyer deleting her boards that was carried by the Wall Street Journal. The lawyer, Kirsten Kowalski, says the Pinterest CE Ben Silbermann and she have had a progressive discussion about it, according to a story posted at the Washington Post online yesterday. But still no word about what “sell” means.

I’m going to ask again, and give them another couple of weeks before I delete my boards. I think.

Edit: They did respond with off-the-record comments.  I deleted the content of all my boards.

Related links:
Pinterest gets right what Tumblr got wrong – on The Flying Trilobite by Glendon Mellow
Pinterest Terms of Service: Word by Terrifying Word – here on Symbiartic by Kalliopi Monoyios.
Pinterest Terms of Service Link Round-Up – on The Flying Trilobite by Glendon Mellow.

Glendon Mellow About the Author: Glendon Mellow is a fine artist, illustrator and tattoo designer working in oil and digital media based in Toronto, Canada. He tweets @FlyingTrilobite. You can see Glendon's work-in-progress at The Flying Trilobite blog and portfolio at www.glendonmellow.com. Follow on Twitter @symbiartic.

The views expressed are those of the author and are not necessarily those of Scientific American.





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Comments 18 Comments

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  1. 1. Alex Wild 3:41 pm 03/16/2012

    I’m following Pinterest pretty closely for a guy who doesn’t have an account. Although Pinterest’s terms offer the usual legal disclaimers, I’m not sure their attempt to place copyright liability on their users will stick if they end up in court. Do you know how they handle DMCA takedown notices?

    Link to this
  2. 2. Glendon Mellow 4:04 pm 03/16/2012

    Well Alex, they say a few things about DMCA on their copyright page: http://pinterest.com/about/copyright/
    and there’s a form there if your copyright has been violated.

    DeviantArt has a similar complaint mechanism, and my experience with dA has shown they take it seriously and take swift action (under two days). I haven’t heard anything about Pinterest. But I’m less than amazed after not hearing back from them in about a month.

    Link to this
  3. 3. Emily D 11:01 pm 03/16/2012

    Very thought-provoking article, Glendon! Thank you. It seems like Pinterest is banking on the fact that so many people are unaware that they’re violating copyright law. Because of that, and because of the alarming fine print, I’ll be steering clear of Pinterest for sure.

    Link to this
  4. 4. juliabrucker 1:04 am 03/17/2012

    I’ve actually been asking the same question, as I have not really seen that link-back of sources for pins in action. I know my work has been posted on Pinterest but finding it is near impossible, which means that it has not been cited with my name, website, or any other means of contacting me. I question whether it really gets an artist’s name out there, or if it just is for fun, and no one is really going to buy any of that stuff they post anyway.

    Link to this
  5. 5. Symbiartic.km 3:26 am 03/17/2012

    Nice post, Glendon. One important point you didn’t mention was that when someone pins an image, Pinterest actually downloads and saves a high resolution copy on their servers. On the internet, sharing is the whole point, but if you’re linking to an image stored on the original owner’s site (in other words, “in their possession” – whatever that means!), if the owner chooses to take his toys and go home so you can’t point at it anymore, that’s his prerogative. Pointing to someone else’s image without taking a hard copy preserves the fine line of ownership on the internet. What freaks me out royally is that every time you pin an image, you’re essentially giving Pinterest a free hard copy straight out of the owner’s house. And if the owner notices and objects, Pinterest’s TOS make it clear that your hands have the blood on them – not theirs.

    I also think to worry about the word “sell” and not the other legalese is too simple. In very basic senses, “licensing” and “distributing” are sales. And you can be sure that they wouldn’t bother claiming the right to modify, copy, transmit, perform, blah blah blah if they didn’t think they could monetize that. So to emphasize “sell” seems incomplete to me. Not that I’m against them making money – that’s fine, and everyone has to make a living somehow. But their terms of service are too open ended. I want to know exactly how they plan to make money off my images. And yours.

    Bottom line is, until this clause is clarified, I’m not using it.

    Link to this
  6. 6. Symbiartic.km 3:30 am 03/17/2012

    @juliabrucker: interesting to note that in the recently proposed Orphan Works legislation (hasn’t passed yet, thank goodness, but we have to assume it will continue to rear its ugly head) “orphaned” work, or work for which users are unable to find authorship information, would be automatically relegated to the public domain. Scary for content producers since sites like Pinterest make it so easy for authorship information to be stripped from your work. Arg.

    Link to this
  7. 7. arttechlaw 6:36 pm 03/17/2012

    Pinterest is an interesting case. If they keep a copy on their own servers, they fail the server test from Perfect 10 v. Amazon and could be liable for infringement. They can avoid that if they streamline their DMCA take-down procedures, and it would help if they merely frame the content and in-line link to the hosting website rather than hosting it themselves.

    Terms of Service are problematic in that they tend to be very broadly written to provide a defense to suits, but are written SO broadly that a wide swath of users are almost always in violation. Lots of sites used by teenagers state no one under 18 is to use the site (including much of Google) as a defense to liability for providing content to minors. TOS’s are dubiously enforceable, anyways.

    @Symbiartic – Orphan works legislation is mostly for making accessible old books, movies, and other media to archives and such. It wouldn’t touch recent content on the internet that has lost connection to the user. The CAT proposal is useful, as embedding the information in the metadata would solve the attribution problem. Very seldom is content commercially profitable after the first few years, but the life + 70 years copyright laws, which attach to EVERYTHING automatically, mean that Disney get to keep their profits while massive amounts of cultural knowledge are lost to age and obscurity.

    Link to this
  8. 8. Johnay 12:52 am 03/18/2012

    @Symbiartic – It is my understanding that the Orphan Works bill does not shift any works to the public domain, but rather shelters a user from *punitive* damages if the copyright owner finds them. They are still liable to pay the owner a reasonable licensing fee and/or royalties, and if they don’t pay that they lose all “orphan works” protection and may still have to pay punitive damages if a trial doesn’t go their way. IIRC, the owner can also refuse to license further use.

    In my opinion copyright goes on for far too long. I would shorten it to the longer of either 20 years after death (time enough for an heir to live off it while learning a trade) or the 1st heir’s life if they are, or become, fully disabled.

    Link to this
  9. 9. Johnay 10:44 am 03/18/2012

    A question for the copyright lawyers out there: How effective would it be to, when posting our own work, to include wording in the description claiming copyright and revoking any right to sell or otherwise exploit the image?

    Link to this
  10. 10. Glendon Mellow 8:50 pm 03/18/2012

    Kalliopi, thanks for those comments about Pinterest’s high-res copies. It’s an important point.

    Julia, Emily, Arttechlaw and all, thanks for weighing in.

    Link to this
  11. 11. Glendon Mellow 8:53 pm 03/18/2012

    #9. Johnay, I’m not a copyright lawyer, but to answer you literally, including a description in the metadata of an image, or on the site it appears on or on the image itself, isn’t 100% effective: far from it. Obtrusive watermarks, in my opinion not only stop some copyright violations, they can also be unwelcoming to potential clients. It’s a trade-off.

    As I tried to indicate in the final words above about Pinterest, using it is a trade-off. For the average user, are they likely to get sued by a struggling illustrator? Will a big company with known trademarks let it slide because it’s advertising their brand?

    For creators, is Pinterest likely to swipe (sorry, legitimately “sell” – hey its in the Terms of Service) their specific art or photography and sell it to affiliates without notification and make giant heaps of money? Or ignore them because the images are too amateur or outside the zeitgeist to be profitable? It’s risk assessment. The potential for creators is fast, easy advertising through Pinterest – the risk is selling their images to a company that hasn’t said what they may use them for.

    Link to this
  12. 12. Glendon Mellow 8:55 pm 03/18/2012

    I’ve received a message via Twitter from @aaronseattle , a community manager at Pinterest: https://twitter.com/#!/AaronSeattle/status/181139716014485505
    So I’ll update when I learn some answers to the questions and concerns posted above.

    Link to this
  13. 13. Symbiartic.km 4:09 am 03/19/2012

    @arttechlaw, I understand the intent of the Orphan Works legislation, but it has unintended and unpleasant consequences for copyright holders as Johnay alludes to.

    @Johnay, removing punitive damages breaks down a big barrier to infringement, making it more akin to a parking ticket, imo – I can easily imagine people just using images as they please, rolling the dice as to whether the rightful owner will even notice. If they do, the infringer just pays the owner a hundred bucks to go away. If not, sweet! The infringer gets to use the image for free. Good deal! Boo.

    Incidentally, I don’t see any hard in having copyright expiration after the creator’s death (…but would that encourage people to take out the most creative of us prematurely?! Kidding!!) I think creatives should have a right to live off of their work, and to extend that benefit to their heirs for a few years after seems sensible enough. Is there a reason why this has not happened?

    Link to this
  14. 14. Johnay 6:07 pm 03/19/2012

    I think I was misunderstood. I was referring to a copyright message in the description of images of mine that I post myself. But the watermark thing does raise another question: if I have copyright information embedded in an IPTC header in an image file, would a site like Pinterest be legally required to keep it intact in whatever resized versions they produce?

    Also, I don’t see Orphaned Works as removing punitive damages. A user would still be subject to those damages if they refused to pay up (or to stop using the image if you told them to.) As I understand it, a reasonable license would vary from case to case. Why not establish & publish some good high rates & per-copy royalties before any such uses occur? And, of course, make sure you are out there to be easily found; the other requirement to avoid punitive damages is a good-faith effort to find the copyright holder.

    As things are, there are tons of copyright-protected images being used every day with no effort being made whatsoever to find their sources and properly license them. Those who continue that practice will not avoid punitive damages if caught, and those who do are the ones who wouldn’t likely go ahead and use the images and who are more likely to pay to license the work up front. On the balance I think artists will see more gain in licensing than loss in damages, and less infringement overall.

    Link to this
  15. 15. Glendon Mellow 11:08 pm 03/19/2012

    I’ve received a response from the Pinterest community manager to my #1 question -What does the “sell” part mean?

    He couldn’t agree to allow me to publish his response from the email, though I will receive word from the PR team in the next couple of days.

    What I can tell you is that the response was enough that I have deleted the artwork off of my boards:
    http://pinterest.com/flyingtrilobite/my-sketches/

    Link to this
  16. 16. IdentifyUS 2:06 pm 03/24/2012

    I see that Pinterest has just recently updated their Terms & Privacy statement, no doubt in response to some of this type of excellent due diligence and scrutiny of the fine print. So time to take a look at the new fine print:
    http://pinterest.com/about/terms/?utm_source=sendgrid.com&utm_medium=email&utm_campaign=pinterest.com

    Link to this
  17. 17. Glendon Mellow 10:16 am 03/25/2012

    IdentifyUS – Yup! We talk about it here.

    Link to this
  18. 18. ablestmage 8:14 pm 03/26/2012

    I think you’re confused on what constitutes “Content” and overlooking the “non-exclusive” bit.

    When you submit something, you’re submitting a LINK and some text. You’re not submitting your hard work. You’re not submitting pictures (unless you upload them yourself, perhaps) or physical objects. You’re submitting to Pinterest the right and authority to sell/etc the LINK AND TEXT *to* the work described on your site, not the work itself. You retain complete ownership of all projects, materials, and wherewithal. “Content” is more or less the data with which Pinterest is able to locate that which you wish to share.

    “Non-exclusive” is the opposite of “exclusive.” If Pinterest were to require exclusive right, then they would essentially own it. Being non-exclusive, you keep all of your original authority and natural copyright/patent/etc but are simply granting Pinterest permission to repeat the data you submitted to which other Pinterest users can locate the site describing the originals you wish to share.

    Link to this

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