By re-pinning a Pinterest image that included a copyrighted photograph, a company infringed the copyright in the photo, a federal judge in Hawaii has ruled.

Photographer Vincent Khoury Tylor, who specializes in images of Hawaiian landscapes, conducts a business selling and licensing his photographic works. He filed suit against bottled water company Hawaiian Springs after discovering that three of his photographs appeared on the company’s social media pages: an image of the Waimea Canyon on Facebook and images of the 7 Pools Waterfalls and the Akaka Falls on its Pinterest page. Tylor included a Motion for Partial Summary Judgment for copyright infringement for the use of all three images, along with a claim for willful infringement of the Waimea Canyon image, on which Tylor’s copyright management information was visible.

All three images were registered with the U.S. Copyright Office, and Hawaiian Springs admitted that it used a copy of the three images. As the record was undisputed that the defendant used Tylor’s copyrighted images on its commercial webpages without authorization, the judge granted summary judgment in favor of the plaintiff as to the defendant’s liability for copyright infringement of all three images but denied the plaintiff’s motion as to its claim of willful infringement for the defendant’s use of the Waimea Canyon image.

The defendant argued that outside vendors managed its commercial Facebook and Pinterest pages and that it had no knowledge that the copyrighted images were being used without authorization. Characterizing this defense as “misplaced,” U.S. District Judge Helen Gillmor reminded the defendant that knowledge or intent is irrelevant to liability for copyright infringement.

The court also rejected Hawaiian Springs’ argument that its use of the Akaka Falls image falls under the “fair use” exception.

To support its fair use argument, the defendant submitted a declaration from its marketing director stating that she re-pinned the image from a mock advertisement she found on Pinterest and did not know that the mock ad used the plaintiff’s copyrighted image without his permission. The defendant also submitted a declaration from the creator of the mock ad, who stated that she used the Akaka Falls image as part of a college homework assignment and later posted it to her personal Pinterest page.

Applying the four fair use factors, the court said the image was not used by Hawaiian Springs for scholarship, criticism or another particular fair use purpose; was not used for scientific or artistic purposes; and was instead used for the defendant’s own commercial advertising on Pinterest. Additionally, the court noted that Hawaiian Springs used the entire image with text and advertising materials on top of the photo and the company failed to set forth any evidence concerning the effect on Tylor’s market of his work to support its fair use defense.

“Defendant’s use of Plaintiff’s entire Image for an exclusively commercial purpose of advertising its products on Pinterest is not subject to the fair use exception,” the court held.

To read the order in Tylor v. Hawaiian Springs, click here

Why it matters: Many people are often under the false assumption that copying an image that is available on social media is “fair use.” In particular, because Pinterest is a platform that allows users to re-pin images within the platform, many people think that such practice does not create any copyright liability. There is, however, nothing in the Pinterest or other social media platform terms to suggest that anyone can use content on these platforms without any copyright liability. This case is a reminder that social media advertising offers a host of possibilities for copyright infringement and that companies should ensure they have permission for all images taken from social media.