I only became aware of Pinterest late last month when I chanced upon a blog from a former Pinterest user, a lawyer who is also a photographer. She had read the terms and conditions of the site and decided she disliked what she saw so much, she deleted her boards from the site. Her blog has gone viral in the weeks since as people realise their legal vulnerability, hidden in the site's terms. 

But I'm getting ahead of myself: Pinterest - what is it?

Pinterest is a social photo sharing site which bills itself as an 'online pinboard'. A user who registers then can create 'boards', essentially a themed group of pictures 'pinned' to each board. These boards are then available to be browsed by other Pinterest users, who can also comment on the pictures pinned.  However, although you may 'pin' your own photos to a board that you create, the site's own guidelines on etiquette discourage 'self-promotion'. The question then arises, if you are not meant to pin your own photographs, whose can you pin? 

Alarm bells started ringing for Kirsten, the lawyer/photographer who investigated Pinterest's terms and conditions, when she found that some photographers who had their pictures 'pinned' were starting to complain about violations of copyright. Upon checking their terms again, she found that Pinterest users are required to obtain permission from the copyright holder for any photos that they pin on their boards, and furthermore they are solely liable for any work they pin. How many people do you think would email the copyright holder first before pinning their pictures up, assuming they know who that might be? Exactly, and right there the whole idea of the 'online pinboard' falls apart. 

Kirsten had always made a point of crediting the original photographer when pinning anything to her boards, as the etiquette guide says to do, but realised that this is not the same as actually having consent from the original owner to do that, so investigated further. 

She investigated the section on US copyright law dealing with 'fair use'; that is the right to use portions of a copyrighted work without consent under certain circumstances. Although judging what is and what is not 'fair use' can be a grey area, the law states that for the purposes of criticism, comment, news reporting, research, or teaching, a portion of a copyrighted work may be used. 

Unfortunately for Pinterest and its members, pinning a photograph on a Pinterest board is none of those things. 

According to Kirsten, the outcome of the case of Kelly vs Arriba Soft Corporation is likely to be the one on which Pinterest's whole site relies upon. In that case, a photographer sued a search engine for the unauthorised use of images in its search results. The photographer lost, as the images used in the search engine results were only thumbnails as opposed to the entire work. Again, this is a grey area, warns Kirsten, as thumbnails may or may not constitute 'fair use' and a lot depends on whether only the 'necessary portion' of the image is used or not. 

However, Pinterest boards do not use thumbnails. Pinterest takes the image at the same size and resolution as the original source, and pins it to the board. So - Pinterest etiquette says that you are not supposed to pin your own work up (excessively) as it is 'self-promotion', but legally, you can only pin other people's work if you have explicit permission from the copyright owner to do so. If you fall foul of that, where do you stand? 

Kirsten once again went back to the terms and conditions and what she found there horrified her. 

When you sign up, the terms do state that users must agree not to violate copyright or any other laws, but the section in ALL CAPITALS is the scary part. It says, and I'm quoting directly from their terms:

"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 SITE, APPLICATION, SERVICES AND SITE CONTENT REMAINS WITH YOU."

So, if you do violate copyright, however inadvertently, on your own head be it. It gets better - again from the terms, but not in caps this time at least:

"You agree to defend, indemnify, and hold Cold Brew Labs, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Site, Application, Services or Site Content, (ii) your Member Content, or (iii) your violation of these Terms."

In other words, if you are sued by a photographer, you must pay both for your own defence lawyer AND for Pinterest's lawyer. If you lose, then not only must you pay damages against yourself, but you must also pay damages against Pinterest. Furthermore, Pinterest themselves reserve the right to prosecute users who violate copyright laws. 

Having sifted through all of that, it is no surprise that Kirsten decided (reluctantly, she says) to delete her boards on the site. Most of us are not lawyers, and most of us are not professional photographers either. She is to be thanked for flagging up such draconian terms and conditions, which the majority of users simply will not see and if they do, will not understand their full implications. 

As a follow-up to this story, only last week, Kirsten was contacted by Pinterest co-founder Ben Silbermann who confirmed in a conversation with Kirsten that Pinterest were working on a solution and promised changes "in the very near future". She added that he described himself as "a guy with a computer who had a vision", and not an expert on copyright law. He even asked for suggestions, she said.

Despite the hopeful tone of Kirsten's follow-up blog, the question remains: why is all liability loaded onto the user that way and if Ben Silbermann really doesn't understand copyright law, why launch a site that can potentially put its users in a very sticky situation? 

Pinterest is currently getting attention from online entrepreneurs as a way of generating traffic to their sites, it's certainly something I would like to look into. But I won't sign up for a site that loads legal liability so completely onto its users, however seductive its interface is.

I await the outcome of the changes to Pinterest's terms with interest. 

DDK Portraits - Kirsten's photography website and blog

Pinterest