Pinning Your Way into Legal Trouble

Tweet

One social networking site, Pinterest, allows its users to share photos of Do-It-Yourself crafts and the like.  These photos are then “pinned” by other Pinterest account holders to their personal virtual bulletin board for all to see and “re-pin.”  In February 2012, Business Insider featured an article about attorney Kirsten Kowalski who deleted her Pinterest account after digging into the site’s Terms of Use.  Shortly after Kowalski deleted her account, popular blogs including Above the Law and TechDirt commented on the issue, and this commotion surrounding social networking legal terms has yet to die down.  But as Above the Law writer Christopher Danzig points out, Pinterest is no different than most other social networking sites when it comes to legal terms.  “[T]he implications appear to be essentially the same,” he says, comparing Pinterest terms of use to those of Twitter and YouTube.

Emily Haas, an intellectual property attorney from Coats and Bennett, PLLC, agrees.  “It’s not an entirely different issue,” she said when asked about the legal implications of Pinterest.  She explained that generally, if an individual creates a piece of artwork, that person owns the art—although there are some exceptions, such as work made for hire.  When artwork is shared on the internet, an issue arises whether the owner has permitted that particular use of his or her work.  On websites such as Pinterest, where the general idea is to “pin” the work of others to virtual pin boards, the issue becomes even more prevalent.  This inherent risk in sharing others’ work coupled with legal disclaimers on many websites increases the need for user awareness of legal terms and the importance of understanding the conditions upon which users may be held liable for infringement.

Pinterest and other social networking sites primarily shift all liability to the user through the websites’ terms of use.  For example, Pinterest’s Terms of Service contain a clause stating, “YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICES, PINTEREST CONTENT, AND USER CONTENT REMAINS WITH YOU AND YOU USE THE SERVICES AT YOUR OWN RISK. YOU AGREE THAT NEITHER PINTEREST NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES. . . .”  Similarly, Facebook’s Statement of Rights and Responsibilities limits liability by stating, “If anyone brings a claim against us related to your actions, content or information on Facebook, you will indemnify and hold us harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim.”  Similar clauses are seen on websites including Twitter, eBay, Amazon and YouTube.  In addition, most sites have clauses that require mandatory arbitration, or forum selection clauses that limit the jurisdictions in which suits may be brought.

While these terms may be far from “user friendly,” under the Digital Millennium Copyright Act of 1998 (DMCA), the terms are perfectly legal.  Title II of the DMCA contains what is often referred to as the Safe Harbor Provision, a protection for online service providers and website owners against copyright infringement liability, so long as they meet requirements set forth in the act.  First, owners must file a notice with the United States Copyright Office designating an agent of the website to receive notification of claimed infringement; this information must also be posted on the face of the website.  Once notification is received, service providers must promptly block access to infringing material or remove the material immediately upon notification of an infringement claim from a copyright holder.  After proper notice and removal, the DMCA shields website owners from liability “to any person for any claim based on the service provider’s good faith disabling of access to, or removal of, material or activity claimed to be infringing.”

With liability easily shifted to the user, patrons of these websites need to know what constitutes infringement on their part, and what type of damages may be sought.  Federal copyright laws give the owner of a copyright the exclusive right to: reproduce the work; distribute copies of the work to the public by sale, rental, lease, or other transfer of ownership; and perform or display the work publicly.  Copyright owners may give others permission to exercise these rights, but without the authorization of the copyright owner, republication on websites can constitute copyright infringement.

In addition to copyright infringement, trademark infringement presents its own risk when posting and selling items on webpages.  Federal trademark law defines infringement of a registered trademark as any use in commerce or reproduction (including counterfeits, copies and “colorable imitations”) of a “registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive.”  Infringement laws also expressly apply to the use of the trademark on “labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce.”  Federal laws make similar acts with regard to unregistered trademarks on infringement as well.

According to Haas, damages for copyright and trademark infringement range from monetary damages to equitable relief.  In instances of trademark infringement, an aggrieved party may seek attorneys’ fees in exceptional cases.  The Fourth Circuit requires a showing of “something less than bad faith” in order to award attorneys’ fees, but other circuits require a showing of bad faith to recover attorneys’ fees in trademark litigation.

In the event a website user is deemed to have infringed a copyright, the copyright owners could seek, at a minimum, the actual damages suffered as a result of the infringement, and any profits of the infringing party attributable to the infringement.  Alternatively, an aggrieved party may elect to seek statutory damages, which can range from $200 to $150,000, and depends on whether the court finds willful infringement.  Additionally, the court has discretion to award attorney fees, and willful infringement of a copyright may constitute criminal offenses if certain criteria are met.

Damages for trademark infringement often include injunctions against further infringing use of the trademark, and monetary relief in the form of the defendant’s profits and the loss sustained by the plaintiff may be available.  In addition to causes of action provided in federal law, Haas also points to North Carolina General Statute 75-1.1 on Unfair and Deceptive Trade Practices as an example of how trademark infringement may constitute a violation of state law as well. 

Although there are risks associated with social networking sites, users need not immediately delete social networking accounts as attorney Kirsten Kowalski did.  So long as users are aware of what constitutes copyright and trademark infringement, these websites can be used without running into legal trouble.  For example, works in the public domain are no longer restricted by copyright and can be freely used by others. Works labeled “free of known copyright restrictions,” “in the public domain,” or “PDM” can often be used for any purpose, even commercial purposes, without asking for permission.

In addition to works no longer constrained by copyright, Creative Commons Licenses apply to works that are protected by copyright, but whose owner allows some rights to shift to users under certain conditions.  In contrast to the “all rights reserved” situation a copyright creates, a Creative Commons License creates a “some rights reserved” setting, allowing others to use the work in specific ways authorized by the owner.  Works with a Creative Commons License are generally denoted with “CC” and typically require users to attribute to the original creator of the work or link the work back to the original owner.  Many popular websites such as Flickr, Google, and Wikipedia currently utilize Creative Commons Licenses in some form.

While the legal scare is not likely to bring the social networking craze to a screeching halt, the cognizant user will think twice before hitting the “re-pin” button or sharing a photo on Facebook. And while it may not be necessary to abandon social networking sites, it is essential for users to know what can be posted and what constitutes infringement. After all, there is usually at least some risk in sharing Intellectual Property you do not have the rights to use.

Leslie Underwood is a second-year student and staff writer for the Campbell Law Observer.  Leslie can be contacted at lk*************@em***.edu.