Incense

by Bart Arondson

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Imagine person A sharing a photo on a website publicly, for example on a community site like Flickr. Next, person B "pins" this on a board in Pinterest, without asking for permission. The same photo is now visible in Pinterest.

What are the legal implications of this? My understanding is that even on a public website, photos are copyrighted (unless otherwise stated by the photographer) by default, and for republication, one must ask for permission at the copyright owner.

Is pinning an image considered a republication? Does it require permission? Or is it more like embedding, or a fair use that does not require permission?

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A lot depends on the political jurisdiction you are in. What is legal in one country or province may not be legal in others, and vice versa. –  Michael Clark Aug 6 at 1:58
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Further, sometimes in terms of civil law there has not been an established history of case law to determine what is or is not acceptable until enough cases have come before courts so that the fine line between acceptable and unacceptable is established. –  Michael Clark Aug 6 at 2:01
    
@Ferdy - Each site has it's own policies. If you were more specific about which sites are the source sites, it is simply a matter of review of that sites policies. Are you asking for the specific case of images on Flickr being "pinned" onto someone's board on Pinterest? If so, what does your reading Flickr's policies reveal? –  B Shaw Aug 6 at 14:05
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My question is asked regardless of the source site. Photos are usually owned by photographers not by the site on which they share them. Furthermore it's not a pinterest policy review either, since they too do not own the photo. –  Ferdy Aug 6 at 15:23
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Pinterest, tumblr and co are not link collections. They copy and republish the content. There is no fair use exception just for mass entertainmment. But these services operate as "user generated content" sites and are allowed to work so (under US law) if they take down content fast after being notified about legal complaints. Of course "finding something on the net" doesn't constitute an effort by the user so these take down notices are handled fast or the service would be shut down. Other ugc sites like Youtube use the same modus operandi. –  his Aug 7 at 8:05

4 Answers 4

Legally they're on shaky grounds if they copy the content to their own servers and then distribute it without asking permission from the content owner.
What can be done about it though is another can of worms entirely, and depends on the jurisdictions involved, which could be many and if they're smart have been carefully selected to muddy the waters as much as possible.

I've seen a case (involving software piracy, not pilfering photos, but the same principles apply) where a UK based company with servers in Germany had content stolen by a Spanish pirate who distributed it using servers owned by a French company but hosted in Italy.
Despite all those legal entities being in the EU the legal complications were so bad it eventually ended in an effective stalemate, with the hosting provider agreeing to remove the content and terminate their contract with the pirate to prevent bad press, but the pirate not suffering any legal repercussions for his acts.

Given the way US law is biassed against foreigners, for a US company or person it is far easier than that to steal intellectual property of non-US companies or persons and get away with it. Just select the state and city where you have your legal entity registered carefully (which usually means California).

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Pinterest doesn't actually do that though. USERS do that. –  Jasmine Aug 7 at 16:15

It's hard to see a distinction between what Pinterest does and what Google does when it caches web content. When Google was sued a decade ago for copyright infringement over its use of caching a court determined that Google was not infringing copyright.

In allowing users to pin content, Pinterest appears to do much the same thing that Google did and I expect they'd make most of the same arguments.

If you're concerned about Pinterest and want to prevent people from pinning your content, you can add a meta tag to your stuff to prevent pinning:

<meta name="pinterest" content="no pin" />
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Lets related this virtual thing to the physical world...

If you are standing in a sculpture garden looking at artworks, does looking at the artwork constitute using it? If you then point out the artwork and cause someone else to look at it, does that violate the artist's rights? Pinterest is exactly that - it's the internet version of "hey! lookie here!" and that doesn't constitute distribution of the artwork. The artwork was already distributed by the artist, same as if they had placed it in a public scultpture garden. Artists need to be careful about controlling their distribution, by using appropriate privacy settings on sites where they publish, but IMO (and IANAL) - publishing your photo on Flickr and allowing it to be shared to Facebook or whatever, is the artist giving permission to point out that artwork. You're not distributing it, you're helping people find it in the place where the artist distributed it.

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Could you provide a reference to either case law or statute which backs up this interpretation? –  Philip Kendall Aug 6 at 19:39
    
Nope. Not aware of any tests of this principle. There hasn't been any. This is the best answer they are gonna get. It's basically the same answer as the other down-voted one. The only legal framework we can apply is the user agreements, which is covered in both answers right now. You don't lose your copyright though, when posting to the popular sharing sites. –  Jasmine Aug 6 at 20:27
    
This example falls apart because the website in question, Pinterest, does not simply "point" to the original image, it actually makes a copy of it and distributes it further from its servers. There is not much you can do physically to prevent this from happening, but from legal point of view, can definitely be challenged. –  SaltyNuts Oct 9 at 17:36

When you upload photos to any kind of social media you are relinquishing all rights to the image in the form that it is uploaded. This is in every single "User agreement" you clicked "I agree" on when you joined said social media site.

So person A uploads in full consent (due to the user agreement they accepted by joining the social media sight) an image... person B likes the image and downloads the jpg version that was uploaded and does whatever he or she wants to do with it because the image (in the form that it was uploaded) belongs to the social media sight now and they allow free distribution of images.

Edited to add the Facebook consent for IP Licensing:

"For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License)."

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Sorry, but this is just plain wrong. You may be granting Facebook or whoever a right to use the images, but you certainly retain other rights. –  Philip Kendall Aug 6 at 16:08
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@Phillip Kendall I suggest you read the user agreement more closely before you begin downvoting my answer. You may not like it but as an example from Facebook, it is clearly stated "For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). –  MikeV Aug 6 at 16:48
    
You might also take a closer look at what I wrote and where I said (twice actually) "In the form that it was uploaded". Person A still retains all copyrights of the original image, but the uploaded one is granted to the social media site. –  MikeV Aug 6 at 16:51
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Sorry, but you're still wrong. Person B still has no rights to the image, because they haven't got a license from Facebook to use the image. Just because Facebook could sub-license the image to anybody doesn't mean that they do. –  Philip Kendall Aug 6 at 19:38
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A lot of startups work on the verge of illegality, a few far beyond. The thing is US civil law is quite bad for consuments in general, more so if you are outside the US. Suing a US user content service because of a criminal thing some user did who may well be outside the US himself is pointless, you need to pin the user who uploaded or ask the service to take down the user content. This works, all these services have fast DMCA takedown procedures that work. The situation is not nice, the users are criminals, the services benefit from this behaviour, but there is not much one can do. –  his Aug 7 at 8:00

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