Pinterest user Kristin Kowalski recently caused a stir by raising questions about whether users of the service exposed themselves to liability by pinning photos.
In the post "Why I tearfully deleted my Pinterest inspiration boards," Kowalski said that the site's terms of service -- which said users were only allowed to pin photos they owned or licensed -- made her wary of the service. Kowalski, like many other users, pinned other people's photos to her inspiration boards.
"I immediately thought of the ridiculously gorgeous images I had recently pinned from an outside website and, while I gave the other photographer credit right in my pin ... I most certainly could not think of any way that I either owned those photos or had a license, consent or release from the photographer who owned them," wrote Kowalski, a photographer and attorney.
Kowalski also took issue with the portion of Pinterest's terms that said users would have to pay the company's legal bills, as well as any judgment, should litigation result from their pins. "If some photographer out there decides that he or she does not want you using that photog's images as 'inspiration' or otherwise and decides to sue you and Pinterest over your use of that photog’s images, you will have to hire a lawyer for yourself and YOU will have to hire a lawyer for Pinterest and fund the costs of defending both of you in court," she wrote. "Not only that, but if a court finds that you have, in fact, violated copyright laws, you will pay all damages assessed against you and all damages assessed against Pinterest."
Her post clearly struck a chord with Pinterest, which revised its terms of service. The new terms also inform users that they can sometimes post images created by others under the fair use doctrine. But the company's terms still include problematic provisions requiring users to indemnify the company for any legal costs or judgments.
For her part, Kowalski says she's still not sure that pinning other people's photos is okay, given the legal uncertainties. "Fair use is tricky and complicated," she writes. "This doesn’t give me much comfort that any fair use analysis I conduct before I pin something is going to be accurate or that a court would agree with me."
Is she right to be so wary? It's often hard to predict how courts will view fair use questions.
But the digital rights group Electronic Frontier Foundation says that many users will be protected. "Posting pictures with captions and commentary, designed to spur further commentary and collaboration, are paradigmatic fair uses," the EFF says. "Most users seek no commercial benefit, and only use as much of the underlying image as is necessary for the commentary. Thus, a typical Pinterest user, to the extent she draws from copyrighted works, will be making acceptable fair uses of those works."