Karen Benton, an Australian abstract artist, asked me for my opinion about strategies for keeping on the right side of protecting your copyright and avoiding violating others’ copyright when it comes to the content-sharing service Pinterest.
I am not a lawyer, nor an expert on copyright law, so this post does not constitute legal advice. These are my lay opinions. Note also that this pertains primarily to Australian law. I have based some of my ideas on the following post: Cox, R., & Kearney, P. (April 02, 2012). Pinterest and copyright: To pin or not to pin? [updated]. Minter Ellison Intellect blog. If any lawyers would like to comment on this, I’d love to hear from you.
(A) Protecting your copyright
When it comes to protecting your copyright, you need to consider what evidence you would take to court to argue that you had provided users with clear indications about their rights to use or not use your materials.
The Minter Ellison post suggests that there are at least three scenarios:
(1) Having a “Pin It” link on your website might imply that you are providing users with tacit rights to pin and repin your images on Pinterest. That does not necessarily destroy your copyright in terms of recognition of creation, although it might limit your ability argue that you specifically reserve to display (and hence potentially monetize) your materials to the exclusion of all others.
(2) On the other hand, having “No Pin” code and text on your site might constitute a relatively clear attempt to directly and explicitly indicate to users that you are protecting your copyright and exclusive rights to display (and hence potentially monetize) your materials.
(3) If you have no indication either way I think the basic copyright rules (see B below) would apply, but it might come down to who has the better lawyers.
Note that any such argument would stand as part of any larger indication/lack of indication about copyright on your website. So a © symbol and statement on every page, especially on every image, might change the overall copyright reading, as might the use of any Creative Commons licensing.
My recommendation (note: not legal advice!)
Decide to deliberately use (1) or (2), and also use a complimentary general copyright statement.
(B) Considering others’ copyright
The basic sense of copyright is that it is automatically granted to the author upon creation of an original work. This means that authors can explicitly or may implicitly *give away* copyright. Explicitly giving away copyright involves displaying a license such as “public domain” or one of the Creative Commons sharing licences. Implicitly giving away copyright involves placing your material in a place where others have free access, not displaying any kind of ownership/license, and not contesting the use of material by others. Whatever implicitly more free rules of sharing people might want to claim about Pinterest and other social media services, I think the basic sense of copyright remains in place if a creator decide to contest the use of materials by others.
So it would seem that unless material specifically provides for the right to free use by others, or the website the material is on is arguably in the public domain or implies free use by others, then copyright still stands.
The rubber hits the road when money is involved. When you make money using the materials of others without some form of authorisation then you are open to litigation. So, private users pinning images in their own collections or shared collections are probably fine because they aren’t making money. But if a business uses the images of others, there maybe trouble.
When it comes to selling products, it may be that if you take your own image of a product then you can use that image even if you don’t own the rights to the ‘look’ of the product itself. It gets trickier when the product itself is image-based, especially a painting, since the value of the image of the painting could be said to be close to the value of the painting itself.
It gets even trickier when think of the combination of A and B. If a business wishes to be part of a community of businesses, using images from its own and other business sites, there could be a lot of trouble if someone decided to litigate.
My recommendation for B (note: not legal advice!)
If you’re a business, or connected to a business involving sales where you are using materials from other sources, seek permission in writing for on either a per-object or blanket basis. Don’t post without permission, even if you see a “Pin It” link on the other site.
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