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| Image courtesy of erix! |
Pinterest was launched in March 2010. Estimates from AppData indicate that Pinterest now has 11.9 million active users (the majority of whom are female). Pinterest has become a significant driver of online retail traffic and is expected to continue to grow in popularity.
On 24 February 2012, a US lawyer and photographer posted an article on her blog questioning whether users of popular social media site 'Pinterest' were infringing copyright by 'pinning' photographs taken by other people. The post went viral generating 569 comments and 9,000 Facebook shares on her website alone. So, would an Australian Pinterest user infringe Australian copyright law by pinning another person's photographs without their permission?
Unfortunately, in most circumstances, pinning a photograph without permission will amount to copyright infringement under Australian law.
Under the Copyright Act 1968 (Cth), a photograph is considered to be an artistic work (and this will be the case independent of whether it is of artistic quality or not). The author of a photograph is the person who took the photograph and in most circumstances will also be the owner of copyright in the photograph (subject to any enforceable agreements with other parties).
The owner of a copyright in a photograph has a number of exclusive rights, including the right to publish or reproduce the work or communicate it to the public. A person who does any of these acts without the permission of the owner of copyright will infringe copyright of the photograph - unless an exception applies.
At present, the Copyright Act's fair dealing exceptions are narrowly cast, and include research or study; criticism or review; reporting news; professional advice given by a legal practitioner or patent attorney; and parody or satire. These exceptions are unlikely to provide any basis which would permit the unauthorised use of photographs on sites such as Pinterest. Accordingly, it seems likely that Pinterest users would, in many cases, be infringing Australian copyright by pinning other people's photographs without permission.
Doing so may also constitute a breach of the Pinterest Terms of Use, which provide that:
By making available any Member Content…you hereby grant … 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 … you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available … or you have all rights, licenses, consents and releases that are necessary … and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content … will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.Pinterest can be a powerful marketing tool. As the popularity of Pinterest grows, more companies are considering whether Pinterest should be a part of their broader social media strategy. Online brands that encourage the use of Pinterest can apply a 'pin it' button to websites to allow users to pin products. Applying a 'pin it' button to a photograph would (arguably) provide users with implied consent to publish the photograph to Pinterest. This would considerably reduce the risk of copyright infringement for users who pin the photographs, but companies will need to be sure they have ownership (or suitable licence rights) in any photographs to which they apply the 'pin it' button.
Interestingly, Pinterest supplies users with code to enable users to 'pin' images to their pinboards.
In Universal Music Australia v Sharman Licence Holdings [2005] FCA 1242, Sharman supplied software and a website that created a peer-to-peer network used to share pirated music and was held to have infringed copyright, on the basis that Sharman had authorised the infringement of copyright engaged in by users of its software. Similarly, in Universal Music Australia v Cooper (2005) 65 IPR 409, Mr Cooper was held to have infringed copyright by 'making available to the public a technical capacity calculated to lead to the doing of that act'. By making this code available, could Pinterest be authorising copyright infringement by its users?
In February, Pinterest released a 'no pin' code which website owners can apply to their site to prevent Pinterest users from pinning their photographs (but which does not prevent users saving a photograph and uploading it as their own). However, it is not clear that an Australian court would consider that a website owner was obliged to implement the 'no pin' code to protect their work, or that failure to utilise the 'no pin' code might amount to implied consent to pinning of the image.
Users of Pinterest should therefore be aware that, in the absence of an express consent to 'pin', or the implied consent of a 'pin-it' button on the source website, they may be infringing copyright in the photos that they pin.
[Update 3 April 2012: On 23 March, Pinterest responded to copyright concerns by announcing a new copyright policy and changes to the Terms of Use. The updated Terms of Use will take effect on the 6 April 2012 and are designed to simplify the reporting process for infringing posts and clarify that Pinterest does not claim a right to sell content. The onus remains on users to ensure that they comply with the acceptable use policy and do not infringe third party intellectual property rights.]
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