The Legal Implications for Brands of Using Pinterest
Several times over the last few months, we’ve been approached by brands (particularly retailers) who are worried about getting involved on Pinterest. They feel they should get involved – it’s the new, shiny social network, and great for visual brands like fashion retailers – but are worried about the legal implications of using Pinterest – specifically around the issue of who owns the content which is pinned.
In this post, I’m going to address some of the most legal common questions we’re asked by brands. Who owns the copyright? How can you control who re-Pins content? What does the licence mean? What does Pinterest’s (and I quote) ‘non-exclusive, royalty-free, transferable, sublicensable, worldwide licence to use, display, reproduce, re-pin, modify (eg re-format), re-arrange and distribute’ actually mean for a brand? And why does Pinterest specifically grant a license to users ‘for your personal, non-commercial use’ (and does that mean brands shouldn’t use it if they’re going to ultimately increase sales as a result of using it)?
What is ‘commercial use’?
Let’s start with that last point. If Pinterest is (as it seems at first glance) only allowing ‘non-commercial use’ of its site, then this could be a very short post. Its terms are slightly confusing, but there’s some clarity as you read on:
If you open an account on behalf of a company, organization, or other entity… you agree to these Terms on the entity’s behalf.
So brands are permitted touse Pinterest. It seems likely that the ‘non-commercial’ phrase is ambiguous and probably in fact intended to stop you doing things like selling access to the site, rather than stopping you from encouraging people to buy from you. At some point, Pinterest is going to have to make money, so preventing brands from using it makes no commercial sense.
What am I agreeing to if I use Pinterest?
Put simply, if you put something up on a board, you are granting everyone permission to use it in pretty much any way they want, as long as they keep to the ‘Pin Etiquette’ and the ‘Acceptable Use’ policy within the site’s terms of service.
Legally, you’re granting a licence to anyone, anywhere in the world, to use, display, re-Pin, modify, rearrange and distribute the content you’ve made available on Pinterest.
How is that different from encouraging people to share my content on Facebook or Twitter?
The biggest difference is that you are licensing people to reproduce your content on their Pinterest boards. On Facebook and Twitter, people share rather than reproduce content, so their sharing posts link back to your content.
That means two things:
- You should own the rights to the content to start with.
- You lose control of the content once it has been re-Pinned. Even if you remove it from your own board, you can’t remove it from other people’s (unless Pinterest steps in; which it might do if, say, they’ve done something illegal with it, or specifically breached the terms of the site).
Does it matter that I don’t have control of my content?
If you own the rights to the content, probably not. Re-Pinning can be great publicity for a brand, and arguably if you’re trying to sell products, you’ll want them seen by as many people as possible. Commercially we work with brands on how to get the maximum number of beneficial re-pins; it can be fantastic brand and product promotion.
However, if you don’t own (or have appropriate rights to) what you’re Pinning, it does matter. And remember, it is not just the right to pin you need, it is also the right to grant others the rights to re-Pin. If you don’t own it or have the rights, don’t Pin it. If you’re a retailer, that might mean, for example, checking you have the rights to show products designed by a third party (a good time to check out your supplier terms). According to Pinterest’s terms, the Pinner (whether a brand or an individual) has unlimited liability for any damages that result from Pinning content (and for others re-Pinning that content) that they didn’t have the rights to.
Really? Unlimited liability for something I have no control over?
Potentially – although you’d have to do something monumentally awful, and a third party would have to prove that it was your pinned content that caused them damage. Section 10 of Pinterest’s Terms states that the user assumes unlimited liability risk for any damages and associated legal costs. Pinterest, on the other hand, will only assume liability for a maximum value of $100. It’s worth noting as well that terms are governed by the laws of California.
Am I liable if someone else (my agency, for example) has Pinned something on my behalf?
If anyone Pins content on your behalf, then you are liable for that content, whether they’re an individual working for you, or an agency contracted to you. If your agency did something explicitly without your permission, then your normal contract should cover who would be liable in the event of action taken against you.
What can I do if I don’t like the way someone’s re-Pinned my images?
Pinterest users have to keep within the law, of course, and also to Pinterest’s terms. If you feel someone has genuinely broken the terms of the site (for example, if they’ve used your content on a board that’s designed to harm or abuse someone, or has illegal content on it, or that’s libellous), then you can report the content to Pinterest. Note, Pinterest is not obliged to remove content from the service. Its terms say:
We reserve the right, but are not obligated, to remove User Content from the Service for any reason, including User Content that we believe violates these Terms or the Pinterest Acceptable Use Policy.
You can also report copyright infringement to Pinterest, by filling in a copyright complaint form.
What can I do if someone complains about my content on Pinterest?
Pinterest provides details of how to respond to a complaint about your content on Pinterest in its copyright pages. Pinterest’s terms state that:
If your account receives too many copyright complaints, you may lose the ability to Pin new content on Pinterest, and your account may be disabled completely.
(Note, it doesn’t say how many complaints is too many.)
What if I just don’t want to get involved at all?
You can’t stop people Pinning from your site unless you put a ‘No Pin Code’ on your website, which blocks people from using your content on Pinterest. It’s possible that if your content were used on Pinterest and you believed it had infringed copyright in some way, a defendant might argue that you should have used the No Pin Code to prevent the issue occurring in the first place. They may argue you have given implied consent. This is a tenuous legal argument at best. It most likely wouldn’t affect how fault would be attributed, but it might reduce any damages awarded.
We haven’t had a test case for Pinterest yet so it’s hard to know exactly what things like liability for brands will look like in the event of a damages case. Many brands may feel that the gains to be had from using Pinterest will outweigh the risks, but it’s always worth getting formal legal advice before you get involved with any new platform.
If you have any other questions on the legal use of Pinterest, let me know in the comments section and I’ll do my best to answer them.
Image courtesy of flickr: Los Amigos Del Fuego
. She has worked in intellectual property and technology law for over 17 years. Prior to working at eModeration’s and as a consultant with leading technology specialist law firm, Kemp Little LLP, Rachel ran her own legal practice and before that was head of the IP&IT department in ...