Whenever a hot new social site pops up, the masses rejoice and the attorneys huddle. Pinterest is no exception. Recently, an attorney/photographer took down her Pinterest page due to legal concerns. This prompted Arik Hanson to ask Kelcey Patrick-Ferree, a different attorney, why.
Excerpts from the full post:
What’s the real risk for brands thinking about using Pinterest at this stage?
I must, unfortunately, give the classic lawyer answer: it depends!
If a retailer wants to promote its own products through Pinterest without ever re-pinning anyone else’s content, there is very little risk. The usual rules will apply, of course, in the same way that they do on Facebook or Twitter: disclose significant relationships, don’t use others’ content without permission, and so on. The legal issue du jour is copyright, and several retailers already have social media policies prohibiting posting other companies’ content to their own social media pages/profiles/etc.–as long as brands apply those rules consistently, they should be fine. On the flip side, all companies should consider whether they mind granting a license to Pinterest as defined in its Terms of Use. For brands like retailers that care about promoting products, as opposed to protecting the intellectual property associated with photos of those products, the analysis will likely favor using Pinterest.
If you were counseling a Fortune 500 brand–or even a midsized or small business–what would your advice be for those organizations considering Pinterest?
If the company wants to be very cautious, it should join but pin only its own content that it does not mind granting a license to. There are several companies, including Fortune 500s, that have already done so, including Target and Home Depot. Target is using Pinterest to promote its own products from its own website only, and it fits the bill I described above: it cares more about promoting its products than protecting the intellectual property associated with photos of those products. Home Depot has been more adventurous and is pinning outside content, mainly ideas for room decor. This surprised me a little; I followed a couple of Home Depot’s repins back to blogging sites that did not clearly own the photos they were posting, or give permission for users to repost their content. Home Depot’s social media folks may know something about those sites that I do not, though (e.g., it’s possible that the content is coming from the personal blog of a Home Depot employee who gave permission, or the social media folks have offline, written permission to use the content–I have no way of knowing).
Smaller businesses and businesses focused on services rather than products may wish to be more adventurous and interactive, pinning products from other companies and repinning content from other users. In those cases, they will want to have permission to use the photos that they pin (either directly or via the other company’s Terms of Use). If there is a doubt, it’s better not to pin. In the case of repinning, the site is merely framing already-uploaded content (i.e., displaying the content in a slightly different context, but not making a new “copy”), so despite the fact that the Terms of Use do not grant users a sublicense to repin content, there is unlikely to be liability arising out of the act of repinning itself. But this may not be sufficient to ensure users are not on the hook for repinning infringing content. Again, the rule of thumb will be: make sure you own the content, have permission to use it, or have permission from someone who had the right to grant you that permission.
Ed. Note – Arik was very careful to note that the above should NOT be relied upon as legal advice. Please consult an attorney if you need Pinterest-related legal advice.
Read the full interview at Communications Conversations
This post was modified to correct a misstatement from the original publication.
