In case you’ve been living under a digital rock, one of the currently hot internet properties is pinterest.com. Pinterest is a social media platform that allows users to skim pictures from third-party websites and to post them along with a link back to the original website that the image originally appeared on – sort of like a much more streamlined & robust method of saving bookmarks/favorites. Unlike Facebook or some of the other social media sites which encourage users to come-up with their own content, Pinterest is largely based on a model of users creating collections of photos from third-parties.
This model creates a bit of a dilemma for the copyright holder because it is in essence a model based on using their photos to create traffic to someone else’s website. Proponents of Pinterest argue that it isn’t really diverting traffic, but rather increasing traffic to business who may have images represented on user’s “boards.” This is similar to the argument that websites solely consisting of framing (placing other websites’ content into a frame appearing on the framer’s website) used a few years ago in cases like Washington Post v. Total News. While the Washington Post case settled, the complaint argued a variety of claims including copyright infringement and misappropriation. On the flip side, in cases involving images that are part of search engine results, courts have found that the use of the smaller images constituted fair use under the Copyright Act (e.g. Kelly v. Arriba Soft Corporation, 336 F.3d 811). Notably, however, cases like Kelly were very specific to the smaller inline images and found that that reasoning did not apply to larger images or images that were independently framed or linked to – arguably what Pinterest does.
So where does this leave Pinterest? Quite simply – in a bit of a bind. While many businesses will not care that their images are being used, as it can mean a real increase in their business, other copyright holders may be less enthralled since the same benefits are not bestowed upon them from the appropriation of their intellectual property. While Pinterest can initially rely on the DMCA safe harbor (assuming they can continue to comply with take down notices), at some point they will be challenged on grounds that the site is designed for the purposes of facilitating infringement and therefore the safe harbor does not apply. In my opinion this is a real dilemma – if Pinterest is to survive long term and generate real income they will need to distance themselves from a purely appropriation model of content development.
Additional reading: Pinterest: Is It A Facebook Or A Grokster?