Gonzalo E. Mon is a partner in the Advertising Law practice at Kelley Drye & Warren LLP and his co-author, John J. Heitmann, is a partner in the firm’s Telecommunications group. Read more on Kelley Drye’s advertising blog, Ad Law Access, or keep up with the group on Facebook or Twitter.
Although Pinterest launched just two years ago, the site already boasts about 12 million users and a staggering number of daily pageviews. Both numbers are growing quickly. Companies are paying attention to this rapid growth and — much like the early days of Facebook — are wondering whether it makes sense to establish an early presence on the site.
Some have incorrectly concluded that Pinterest owns everything posted on the site. And others have correctly pointed out that posting other people’s pictures without permission could be problematic.
Before a company — or a user, for that matter — joins Pinterest, it’s important to separate the myths from the realities.
No, Pinterest Doesn’t Own What You Post
The term “Site Content” is defined to include “Member Content,” and the term “Member Content” is defined as “all Content that a Member posts” on the site.
Based on a quick read of the terms, some people have concluded that Pinterest automatically owns all rights, title and interest to anything that a member posts on the site. However, that’s not the case. To learn the truth, you need to read further and determine what the company means by the phrase “except as expressly provided in these Terms.”
The answer appears a few paragraphs later in a section entitled “Member Content,” where Pinterest states, “Cold Brew Labs does not claim any ownership rights in any such Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such Member Content.”
In other words, you’re not giving up any ownership rights you may have simply by virtue of posting something on Pinterest.
Yes, Pinterest Has Broad Rights to What you Post
That said, when you post content on the site, you do grant Pinterest broad rights to use that content. The terms state, “You hereby grant to Cold Brew Labs a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content only on, through or by means of the Site…”
If you were offended when you thought Pinterest owned everything, and then were relieved to learn that wasn’t the case, you may get re-offended when reading this section. However, this type of provision is actually very common, and to a certain extent, is necessary for any social media site to run. In fact, if you look at Facebook’s Statement of Rights and Responsibilities, you’ll see members also grant Facebook a broad license to use content.
That’s not to say that the licenses are identical. For example, although Facebook states that the license you grant them “ends when you delete your IP content or your account, unless your content has been shared with others, and they have not deleted it,” Pinterest states that the license you grant them is “irrevocable” and “perpetual.”
You’re always going to grant rights to a social media site when you post content, so you may want to read the terms to figure out the extent of those rights.
No, You Can’t Just Post Other People’s Stuff
So, Pinterest has a right to use what you post, but they don’t own it. The big question for companies, though, is do you own what you post?
Keep in mind that, unlike Facebook — which is mostly about creating and posting your own stuff — the focus of Pinterest is posting stuff you find on other sites. And if you find content on other sites, odds are you don’t own it, someone else does. That someone else may have something to say about you posting their stuff without permission.
For consumers, the likelihood that someone will challenge your right to content is probably low. For a business, the risks are much higher for two reasons: 1) commercial use (in other words, for business) is offered less protection; and (2) companies have deeper pockets.
If a company takes an image that belongs to someone else and pins it on a virtual pinboard, it could receive a letter from the copyright owner, accusing that business of infringing his rights. Such letters can lead to lawsuits and monetary penalties.
Yes, You Can Deal with the Risks
If your company sets up a presence on Pinterest, you should only pin content you own or have a license to use. If you have a license, check that license to ensure you are allowed to post the content on Pinterest.
Copyright isn’t the only issue, though. You should also be careful before you post any content that includes celebrity images or third party trademarks. Again, if you don’t have permission from the celebrities or trademark owners, you could be getting a nasty letter.
Although your risks need to be evaluated on a case-by-case basis, a good rule of thumb when setting up and populating a company Pinterest pinboard is to treat that pinboard just as you would treat your company website. If your legal department would advise you not to post something on the website, you probably shouldn’t pin it to your company’s pinboard, either. Yes, it will limit what you can do on Pinterest, but you (or whoever pays your legal bills) will thank me later.
Via Mashable: http://www.mashable.com