Using Pinterest and the fair use provisions of US copyright law

My burgeoning Pinterest pinboard collection.

Part 2 in a series about artists using Pinterest and respecting other people’s copyrights. Part 1 introduces some of my concerns about using Pinterest.

Please read this Prominent Disclaimer: I am not a lawyer, nor have I ever been a lawyer. I haven’t even played one on tv. I am an artist and designer who seeks to respect the copyrights of other people’s work and who requests that other people respect my own copyrights. The essay below is simply my thoughts and ruminations about the issues involved in using intellectual property in the age of digital and social media.

It seems to me that the big question about using Pinterest is whether pinning and re-pinning image files to Pinterest constitutes “fair use” for the individual member. Section 107 of US Copyright Law:

§ 107 · Limitations on exclusive rights: Fair use40

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Here are some examples of fair use:

• A teenager wallpapers her room with popstar photos clipped from Tiger Beat magazine.
• A homeowner keeps a binder notebook full of magazine spreads to show her contractor when she starts that kitchen renovation.
• An illustrator buys a copy of a dance magazine for anatomical reference of the arabesque pose when creating a poster for a dance company.
• A political cartoonist draws a satirical caricature of a famous politician to look like the trademarked clown figurehead of a fast food company.

As you can see, these are all examples of analog use of analog images. Pinterest users use their pinboards in similar ways, but is the translation to digital exactly the same? One of the important requirements for a use to be “fair use” is that the usage must not damage the ability of the original creator to sell that image.

Here are some examples of how a well-intentioned Pinterest user could pin an image and damage an artist’s ability to sell their work:

• A Pinterest user uploads a landscape painting by a favorite artist to Pinterest. Somone else re-pins it, downloads it to their computer and sells it as a greeting card on a print-on-demand commerce site. The original artist gets no credit or royalites from the card.
• There are bloggers who are downloading images and copy from other websites, uploading these to their own blogs, then pinning that material to Pinterest, claiming ownership by linking to their own website. Unsuspecting Pinterest users re-pin the image and drive traffic to the stealing blogger. The original creator gets no credit or payment.

I sure don’t want to do anything like that! And I’m sure you don’t want to either.

Next: Some ideas for respectful ways to use other’s images on Pinterest.

Some interesting resources and discussions:

• The US Copyright Office’s information page about the Fair Use provision
• Creative Commons, an alternate intellectual property rights system that attempts to provide digital fair use permissions
• Photographer Trey Ratcliff discusses his use of Pinterest with Creative Commons-permitted images
• Sean Locke writes about his misgivings on rights usage and the Pinterest website itself
• Living Locurto reports on the theft of recipes and food photography using Pinterest as the medium
• Clay Zeigler at Black Star Rising has posted an equitable discussion of the pros and cons for creatives who use Pinterest.