We’re no longer just “facebooking” and “tweeting,” now we’re “pinning,” too. That is, we’re using the latest internet start-up, Pinterest, to create an on-line bulletin board of our favorite things. More specifically, members of the website create virtual “pinboards” to collect, organize, and share decorating ideas, recipes, party plans, stylish clothing, vintage cars, and much more. After accepting an invitation to join, members download a “Pin it” button to their browsers. Using this button, members pull images from around the internet and “pin” -- i.e., post -- them to their pinboards. Members can also browse pinboards created by others, leave comments, and “repin” images to their own pinboards. In this way, Pinterest connects people all over the world through common interests. It’s another means for social networking with a focus on sharing ideas and receiving inspiration.

All this pinning and repining, however, may have serious copyright implications. The Copyright Act provides that a copyright owner has the exclusive rights to do and authorize any of the following:

  1. to reproduce the copyrighted work;
  2. to prepare derivative works based on the copyrighted work; and 
  3. to distribute copies of the copyrighted work to the public by sale, transfer of ownership, lease, rental, lending, etc.

See 17 U.S.C. § 106. In addition, authors of certain works of visual art have the right to claim authorship of their works and prevent distortion, mutilation, or other modification that would prejudice their honor or reputation. See 17 U.S.C. § 106A. Pinning an image may run afoul of these laws.

For example, take the Pinterest member that comes across a scenic photograph on a travel website and pins it to his pinboard devoted to vacations. The member neither took the picture nor requested permission from the copyright owner to reproduce it. Then, the member’s sister sees the photograph on her brother’s vacation board and repins it to her own pinboard devoted to the outdoors. While some copyright owners may have no problem with these uses, and may even welcome them to gain exposure, others, such as photographers, make a living off the reproduction of their images. These unauthorized uses encroach upon that living.

The better practice would be for the Pinterest member to go on vacation, take the photograph himself, and then pin his own photograph (which his sister can repin after requesting her brother’s permission). After all, Pinterest’s “Terms of Use” state that members represent and warrant that they are either the sole and exclusive owner of all content they pin or that they have all necessary authorizations to use the content they pin. Members also agree not to violate a third party’s intellectual property rights and indemnify Cold Brew Labs, Inc. (the providers of Pinterest) from any issues arising from images pinned. At the same time, however, Pinterest’s “Pin Etiquette” discourages members from pinning their own items and cautions against self-promotion. Moreover, the whole premise of Pinterest is to collect and share ideas in one place that people come across while surfing all over the web.

So what is a “pinner” supposed to do?

The first suggestion is to own what you pin by creating it yourself, regardless of what Pinterest encourages. It is, after all, your pinboard and you are free to use it in a legal manner. Next, credit your source (which does not limit your liability but may go a long way with the original creator). When a member pins an image from a website, Pinterest automatically captures the source link to credit the author. Review the source site and determine if there is a means to request permission to use certain images. Also, look for websites with the “Pin it” button, which more and more publishers are using, to identify content available for pinning. Finally, pinning may, to a certain extent, be fair use -- a common defense to copyright infringement that limits a copyright holder’s exclusive rights in the work. Whether something is fair use is determined on a case-by-case basis and requires examining four factors:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

17 U.S.C. § 107. Widespread use of Pinterest is so new that no court has addressed any alleged infringement through the site or a fair use defense. And, copyright law in general lags far behind today’s technology.

But given the popularity of Pinterest, changes are certainly coming. Pinterest has publicly acknowledged the contradictions in its policies and said it’s working to address copyright concerns. Stay tuned for what those may be and how your virtual bulletin boards may be affected.