Law, as learned for the bar exam, is different from law, as it affects everyday life. The current hubbub over the terms of service of Pinterest, a popular image-driven social network, provides a perfect "fact pattern" to illustrate the difference.
First, the creator of an original work (or the person who commissioned the work, if it's a "work for hire") automatically owns copyright in it, whether or not she registers the work with the US Copyright Office. Registering your work, of course, has its benefits, some of which are especially significant in the Pinterest example... but we'll get to that in a moment.
Copyright comprises several exclusive rights and powers pertaining to creative work. Often referred to as a "bundle of rights," copyright means the owner has exclusive rights to do the following:
- Reproduce the copyrighted work (make copies).
- Prepare derivative works.
- Distribute copies to the public.
- Perform certain kinds of works publicly (e.g., plays, dance routines, movies).
- Display the copyrighted work publicly (e.g., sculptures, paintings).
- Perform the copyrighted work publicly by means of a digital audio transmission (for sound recordings).
Source: 17 U.S.C., Ch. 1, § 106. (PDF)
Copyright inheres the moment I "fix my original work" in a "tangible medium," which might mean doodling my portrait on a napkin, taking a photograph, or typing my novel into my laptop. Electronic files are "fixed" for that purpose. Source: 17 U.S.C., Ch. 1, § 102. (PDF)
Here's where things get 'Pinteresting'
Let's say, I'm an entrepreneur who sells widgets. To market those widgets more effectively, I take attractive photos of them and post them on my website. A widget enthusiast who is unaffiliated with my business starts a pin board on Pinterest and "pins" one of the photos from my site.
For this example, let's assume that the enthusiast "pins" the image directly from my site, which means that the "pin" will link to the page that displays that photo on my site.
The pinning process involves making a copy of my photo; Pinterest generates a smaller version of images, and uploads them to pin boards on that site. Pursuant to the copyright law referenced earlier in this article, doing so constitutes "reproducing the copyrighted work," which would be in violation of my exclusive right to do so as the copyright owner. Ergo, Pinterest and the widget enthusiast would be liable for copyright infringement.
At least, that would be the case if Pinterest's Terms of Use did not shift the liability completely onto the user/enthusiast/pinner. But since the agreement shifts liability to the user, the pinner has assumed complete responsibility for the violation of copyright law. As copyright owner, I could sue that pinner for infringement.
Here is where registration with the US Copyright Office becomes important. Had I registered my copyrighted work (my widget photo) with the US Copyright Office prior to the "pinfringement," I could bring suit against the Pinterest user and seek "statutory damages" in the event I couldn't prove exactly how much money her unsanctioned reproduction of my work cost me. I could also seek attorney's fees, but only if I had registered the photo as a copyrighted work before bringing suit. Source: 17 U.S.C. Ch. 4, §§ 411 and 412. (PDF)
Should I sue?
And now, for the distinction between law on the bar exam and law in real life: Why would I ever sue in this case?
If I were to sue, as a business owner I would alienate a brand evangelist, as well as countless others who will learn about my lawsuit and "flame" me online. I would also be wasting the opportunity to harness the power of viral marketing without paying a cent for the privilege.
Make no mistake, Pinterest has a huge and growing following (11.7 million users), and repins currently make up 80% of pinning activity. In other words, my widget photo might well be pinned and repinned dozens of times (if not more), with a link leading back to my website where I sell widgets.
Have I really been damaged because someone reproduced my copyrighted photo in this instance? Assuming I desire website traffic and sales, the answer is clearly no.
Now, let's change the facts and assume that the Pinterest user does not link back to my site, but rather downloads my photo, uploads it directly to the online pin board, and makes no mention of me.
In that instance, I'm not reaping the benefits of free viral marketing, but I'm still not really being damaged, because I'm not in the business of selling photos. I'm in the business of selling widgets.
Even under such circumstances, a lawsuit is a costly and unattractive option. A request that the user take down the photo, or, better yet, link to my website, presents a better option... even in light of the copyright infringement. If this option sounds time-consuming for a busy entrepreneur ... that's because it is.
The better approach is to watermark my photos before uploading them to my widget site. Then, my trademark, my brand name, and maybe even my URL would be prominently displayed in the photo, allowing me to reclaim at least some of the viral marketing appeal Pinterest offers. That would be the case even if someone were to create her own pin rather than linking directly from my site.
* * *
So, although pinning might technically violate copyright law, you probably shouldn't pursue legal process. People pay thousands of dollars to produce viral videos that are never shared. If you manage to create content that people want to share (i.e., "pin"), let them have at it. However, be aware of the potential risks and benefits Pinterest presents.
The moral of the story: Prepare to be pinned, and position yourself to parlay pins into profitable purchases.
(For more on Pinterest, see this infographic and this Pinterest Marketing Kit.)
