Pinterest and Copyright Law
October 24, 2012 9:17 AM   Subscribe

Help deciphering Pinterest and copyright law, please! The short story is that I'm a food blogger. A picture from my blog was pinned to Pinterest, then someone else used the "embed" feature on Pinterest to put it on their site. I say this is not okay, she says this is totally kosher. What say you?

The long story: I have a Pinterest account, and because I get a good amount of traffic from Pinterest, I encourage users to pin my photos via a "pin it" button on my blog.

One day on Pinterest I saw one of my pictures--let's say a picture of My Unique Delish Muffins--had been pinned and had tons of repins--awesome! But when I looked closer, the picture actually linked to another site that posted this picture, along with a slightly tweaked version of My Unique Delish Muffins.

I have no problem with her recipe--she re-wrote mine and made some changes, so that's fair game. But I think it's lousy that she's using my picture as representative of her recipe, and I think it's REALLY lousy that it's all over pinterest linking back to her instead of me, and she's getting page views and advertising dollars as a result.

I wrote her nicely and asked her to take it down, and she basically said that since she used the "embed" feature from Pinterest, she was in the clear. [She never claimed the picture was her own, and in fact there's a very small link near the picture back to my website.]

First of all, is what she says true, per US copyright law?

Complicating factor: SHE is the one who pinned it from my site, this is not a picture I put up myself. As I understood it from the Pinterest TOS, when you pin something you're technically claiming to have the rights to pin it (ie, ownership). Of course no one uses it that way, but I thought that's what the terms stated. So if she pinned it herself from my site, then used the embed feature to put it on her site, is that kosher or sketchy?

I have filled out the Pinterest form asking them to remove this pin since it's my product and I didn't upload it--if she's embedded it from that pin, then that might make it disappear off her site. However, the picture is still all over pinterest so there's nothing to stop her from finding another copy and embed from that one, and so on. I could remove all instances of the pin from pinterest, but some point back to my own site...argh!

My other thought was to file a DMCA notice with her ISP, but since I'm not 100% sure it's NOT okay to do what she's done, I don't know if that will get me anywhere. (Legally, I mean. Morally, I think she's lame for not taking it down when I've asked.)

This was way too many words about a minor problem, but she's gotten under my skin. I'd love to hear everyone's thoughts, and if you have some relevant links for me, that would be awesome.
posted by Bella Sebastian to Technology (15 answers total) 3 users marked this as a favorite
File the DMCA notice; she's probably done the same thing to other food bloggers.
posted by spunweb at 9:19 AM on October 24, 2012

Of course it's not kosher under copyright law. Of course it's totally within your rights to complain on any platform.

If you take a picture in the U.S., you are its copyright holder. There are fair use exceptions: reproducing the entire photo on a commercial site is not at all anything like fair use.

This is what Pinterest hath wrought.
posted by RJ Reynolds at 9:35 AM on October 24, 2012 [7 favorites]

I am an IP attorney, but I am not your attorney. This is not legal advice.

This is a complicated question. There may be several potential copyright issues, including implied license and fair use. There may be right of publicity and false endorsement issues. The Pinterest terms of service may also enter into it.

I don't bring this all up to scare you. You seem to want certainty about the legal situation before proceeding, and that's understandable. But legal certainty costs money. It would take a competent attorney time and effort to come to a conclusion and advise you about all of these issues. So what you have to decide is how risk averse you are and how much money and stress you are interested in sinking into this.

For example, suppose you file a DMCA takedown notice. Now suppose she files a counter-notice, citing her good faith belief that her use of the picture is covered by implied license (i.e. you allowed users to pin the picture, someone did, and now she's using a Pinterest feature to embed it on her site). Are you then prepared to file a federal lawsuit? That's $350 just for the district court filing fee, unless you can proceed in forma pauperis. Is this person's use of the image (or the principle of the thing) worth that much to you?

These are all issues that I would recommend discussing with an attorney. Many attorneys offer a free initial consultation. If cost is an issue, inquire about a sliding scale or a fixed fee (as opposed to an hourly rate).
posted by jedicus at 9:40 AM on October 24, 2012 [7 favorites]

If I were in this situation, I'd want to ask a lawyer if the use of my recipe image with a recipe that is based on mine, but altered constitutes fair use. Essentially: does the commentary need to be directly related to the copied content in question, and does an altered recipe constitute commentary?
posted by xyzzy at 9:49 AM on October 24, 2012

make some cute little cards with your blog name on them. have them on little toothpicks or plastic swords or something, little billboards, but seriously cute ones...and have these in the food photos you take. Don't litigate, innovate.
posted by th3ph17 at 9:59 AM on October 24, 2012 [58 favorites]

Th3ph17's suggestion is fantastic, and also what I've seen other popular food bloggers do when baking.
posted by spunweb at 10:11 AM on October 24, 2012 [1 favorite]

My other thought was to file a DMCA notice with her ISP, but since I'm not 100% sure it's NOT okay to do what she's done, I don't know if that will get me anywhere. (Legally, I mean. Morally, I think she's lame for not taking it down when I've asked.)

The vast majority of these kinds of disputes are resolved without a judgment being made in court, and anything dealing with digital content and fair use online is pretty much a legal gray area at the moment anyway. Even if you wasted a lot of money on a lawsuit, the bottom line would probably be that you would have to come to some sort of an agreement between the two of you. Trying to get it taken down through Pinterest or a DMCA takedown for her site is one way to use third party leverage to get her to stop, but if she puts enough energy into circumventing those attempts she can probably get around them. Personally I would probably either just ignore it and spend my energy on my own projects without worrying about people passing off my work as their own, or I would try to come to some sort of compromise with the other person that we could both agree to (like making the attribution more prominent).
posted by burnmp3s at 10:15 AM on October 24, 2012

It might be worth thinking about what fallback position you'd be happy with, if a legal remedy isn't available. If she provided a *very* prominent link to your site, making it clear that the picture is from you and the recipe is adapted from yours, would that be enough?
posted by LobsterMitten at 10:43 AM on October 24, 2012

I'm not sure how Pinterest saves or links to those images. Would it work to upload a watermarked image (with the same location and filename) that prominently featured the name and URL of your site and replaced the old image? If not, I would definitely do that with all your images going forward.

What Pinterest really should do is allow people to prevent their images from being embedded. I'm with Jedicus, I think this is a really hard legal problem (IAAL) but with enough artists and other creative types protesting, they might be persuaded to change their policy. (For instance, see here for somebody else complaining about this exact problem.)
posted by chickenmagazine at 11:36 AM on October 24, 2012

If you don't want something to be copied and reposted, with or without attribution, don't put it on the internet.

As far as legal remedies go I can't advise you, but if you're concerned about getting credit I would just ask the person nicely to give you attribution. It's unlikely that they're actually trying to steal from you.

In the future, it may also help to watermark all your images with URL/name so that even if someone does grab and repost your stuff, attribution is built in.
posted by signsofrain at 11:39 AM on October 24, 2012 [4 favorites]

Does the embedded image show the source line? My understanding is that the code Pinterest gives you will put something like

Source: Bella Sebastian's Awesome Website via Bella Sebastian on Pinterest

on the bottom of the image, but this is easily removed. If the blogger removed it, this might be an avenue of complaint to Pinterest.
posted by Nonsteroidal Anti-Inflammatory Drug at 1:32 PM on October 24, 2012

..and on re-read, the source line is there. This is gonna be covered in Pinterest's TOS, so there's not much you can do at this point. Use th3ph17's awesome idea going forward.
posted by Nonsteroidal Anti-Inflammatory Drug at 1:35 PM on October 24, 2012

Update: Pinterest agreed to remove the image, and since it was essentially hotlinked from Pinterest, her recipe page now has a big empty box where my photo used to be. The reason they removed it is because I was not the one who uploaded it there--it was this other user. If I had uploaded it, my understanding is that I would be out of luck because in uploading, I would be agreeing to their Terms of Service and allow other users to embed the image. When she pinned it from my site, she was in essence claiming she had the rights to do so, and I was able to show Pinterest that was not the case. [I'm writing all of this in case others with a similar question find this later.]

What's to stop her from finding the image somewhere else on Pinterest and embedding it again? Well, nothing. I'm hopeful she'll just let it go or take her own freaking picture, but if it happens again I'll be asking Pinterest to remove all instances of the image from their site. This would stop the flow of traffic to my site, yes, but the majority of the links seem to be to hers, and honestly I'm willing to take a small hit so she doesn't get the traffic.

My takeaway is this: I won't be pinning my own images to the site. I'll probably remove the "pin this" buttons from my blog. I won't prevent people from pinning from my site (...yet...) but I don't want anyone to be able to argue that I've encouraged others to use my content by making it easy or enticing to pin it.

For those who suggested watermarks or other branding, it's not a bad idea but it's not a real solution. When the photo is on her page, right next a complete recipe, what is the enticement for someone to click over to my site? Absolutely nothing.

And finally, the link from chickenmagazine made a good point--since the image is hotlinked from Pinterest, filing a DMCA notice with her ISP wouldn't do anything since it's not on her server. Good to know, but a little unnerving to have all of the deciding power in the hands of Pinterest.

I'm not anti-Pinterest but I am anti-embed option, and I hope that they can be persuaded to make it optional, or even disable it entirely.
posted by Bella Sebastian at 2:34 PM on October 24, 2012 [1 favorite]

Modify the image you have posted on your website to include a watermark. This way, if she tries to take it again, she will have the watermarked version. Additionally, if you see it pop up on her site without the watermark, you will know that it came from somewhere other than your site. Perhaps you can track down the source, assuming she didn't keep a copy for herself.
posted by nikkorizz at 3:05 PM on October 24, 2012 [2 favorites]

Perhaps of interest, artist and writer Katherine Tyrrell talks about:
- getting Pinterest to remove her pinned images, Parts 1 and 2
- how to prevent your Flickr images from being pinned
- how to prevent your Blogger images from being pinned
posted by mon-ma-tron at 3:32 PM on October 24, 2012 [2 favorites]

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