–Catlan McCurdy, Attorney
First, there was copyright. Then, there was Pinterest. And now, there is drama. The words “copyright infringement” and “Pinterest” have been thrown around a lot recently, mainly due to the blog post of one photographer/lawyer, Kirsten Kowalski. Kirsten recently blogged about her decision to break up with Pinterest aka delete her inspiration boards, and in addition to receiving what I’m sure are record hits on her personal site (genius), she has also initiated the conversation surrounding potential copyright liability for Pinterest users. And I’m happy to chime in. So was Aaron Keller yesterday.
Full disclosure: I do not have a Pinterest account. I meant to sign up for one, I really did, but “create Pinterest account” has been lounging around on my to-do list along with “clean bathroom” for a few months now, and I might get to it eventually, I just don’t know when. I’ll clean the bathroom tomorrow though, I promise. However, even without an account, I do have a pretty good understanding of what Pinterest is, and if you need some help, there are some good explanations here and here.
Now that we’re all caught up, let us continue.
Kirsten briefly touches on whether or not fair use would serve as an appropriate defense for a hypothetical copyright infringement claim based on a Pinterest user pinning content for which the user has not received permission to publish. She shies away from a full fair use analysis though, and with good reason – it takes way too long to explain in the brevity of a blog post. So, in an effort to keep this post minimally boring and not prohibitively lengthy, I propose delving into the concept a fair use a little deeper, but not law review note deep, to see if the average corgi-loving Pinterest user would have a fair use defense.
Fair use is complicated. The complications surrounding fair use exist because fair use is a fact intensive defense. This makes it harder to predict the outcome of asserting fair use as a defense, which means it isn’t asserted very often. More often than not, users are too terrified of copyright infringement and monetary damages to assert a fair use defense. The unpredictability of the doctrine may not be worth the copyright litigation gamble, which involves high legal fees and possibly years before a resolution. Many people, including Kirsten, weigh their options and decide to not use copyrighted material at all in an effort to avoid liability. Unfortunately, this type of behavior stifles innovation and prevents inspiration. Perspiration, well, we have that in buckets, because the threat of copyright litigation is definitely something to get hot and bothered over.
The fair use analysis, which determines whether social benefit is greater than private loss, was built into the 1976 Copyright Act via four factors. However, contemporary advocates of fair use think that fair use can really be distilled into three questions:
- Was the use of the copyrighted material for a different purpose, rather than just reuse for the original purpose and same audience?
- Was the amount of material taken appropriate to the purpose of the use?
- Was the use reasonable within the field or discipline it was made in?
If the answer to these questions is yes, then a court would likely find the use of the copyrighted material fair. A quick run through of these three questions will hopefully leave us all at least with some thoughts on fair use and Pinterest.
- Yes, it can be argued that pinning copyrighted material on Pinterest is for a different purpose. For example, a clothing store produces a catalogue, which includes photographs of their clothing, descriptions of the clothes, pricing, contact information, etc. The purpose of the photographs is to show consumers appealing images of the products, so that the consumers may be incited to purchase. Now, take the average Pinterest user, a woman in her twenties or thirties, who loves online shopping, social networking, and pictures of funny animal memes. She pins a pair of jeans on Pinterest to show her friends the purchase she just made. The purpose of her use is non-commercial, and she merely aims to share the image with friends in an effort to illustrate her latest purchase. The comment she includes along with the picture may even be said to transform the use (“omg check out these pastel skinnies – the ’90s are back!”). The audiences could be similar, or even identical, but the purpose in publishing aka pinning the photograph is completely different.
- Even if our jean-shopping friend above pins the entire image, not just a thumbnail, that amount could still be appropriate. In Bill Graham Archives v. Dorling Kindersley, Ltd., the Second Circuit found this factor to be inconclusive even though entire images of Grateful Dead posters had been published in a coffee table book without permission. The court’s findings were based in part on the first question because the purpose of the defendant’s use was to emphasize the images’ historical rather than creative value. Here we see how a strong transformative use argument can influence multiple factors in the fair use analysis.
- Pinterest is above all a social networking tool. Furthermore, it is social networking styled around the sharing of images! To share anything other than images and the descriptions users compose to accompany the images would be the unreasonable thing to do. Sharing of images seems quite reasonable to do on Pinterest, seeing as that is the entire point of the site.
Maybe all of this has only proven to you that fair use is fact intensive and difficult. That much is true. But I would encourage us all to really consider the fair use defense when contemplating using material for a new purpose. Fair use was created as a check to the balance of power copyright owners possess, and it serves as one of the traditional safeguards of the First Amendment. Will a fair use defense work every time? No. Will fair use protect Pinterest users? Maybe. With a fact intensive defense, it is difficult to predict outcomes, but Pinterest users who are truly concerned with potential copyright liability should evaluate their own use and come to their own conclusions rather than deleting their accounts and calling it a day. I reccommend picking up a copy of Reclaiming Fair Use and making smart, creative decisions. We are all inspired by those who have come before us, and the fair use of copyrighted materials Happy pinning!