This article is by Brian Sherwin, regular contributing writer for FineArtViews. Brian Sherwin is an art critic, blogger, curator, artist and writer based near Chicago, Illinois. He has been published in Hi Fructose Magazine, Illinois Times, and other publications, and linked to by publications such as The Huffington Post, The Boston Globe, Juxtapoz Magazine, Deutsche Bank ArtMag, ARTLURKER, Myartspace, Blabbermouth, Milwaukee Journal Sentinel, Conservative Punk, Modern Art Obsession, Citizen LA, Shark Forum, Two Coats of Paint, Vandalog, COMPANY and Art Fag City. If you want your blog posts listed in the FineArtViews newsletter with the possibility of being republished to our 17,000+ subscribers, consider blogging with FASO Artist Websites.  Disclaimer: This author's views are entirely his/her own and may not reflect the views of BoldBrush, Inc.. You should submit an article and share your views as a guest author by clicking here.

It has come to my attention that some artists are annoyed by Pinterest regarding copyright. Point blank -- some artists view the ease of sharing -- 'pinning' -- images of art on Pinterest without permission from the copyright owner as a threat to all artists. This concern adds to a recent burst of online criticism over how Pinterest handles content and copyright in general -- so much so that Pinterest recently defended itself, via company blog post, against accusations that the site is dependent on the exploitation of copyrighted material. Pinterest also recently updated a page about Copyright. That said, I have a feeling that this debate over Pinterest and copyright is not going away anytime soon -- and a lot of that has to do with how the Pinterest terms of service (TOS) agreement is currently written.

On the company blog post Pinterest co-founder Ben Silbermann states, "We work hard to follow the DMCA [Digital Millennium Copyright Act] procedure for acting quickly when we receive notices of claimed copyright infringement. We have a form for reporting claims of copyright violations on our site here. Every pin has a flag to make reporting easier. We also know that copyright is a complicated and nuanced issue and we have knowledgeable people who are providing lots of guidance.". Unfortunately, what Silbermann says does not mesh well with what is stated on the Pinterest terms of service (TOS) page -- which has not been updated since March of 2011 at the time of this writing.

The TOS agreement on Pinterest -- under Ownership -- states that, "Site, Application, Services and Site Content are protected by copyright, trademark, and other laws of the United States and foreign countries." This wording is confusing because it implies that Pinterest -- or more specifically, Cold Brew Labs, Inc, holds copyright / trademark to anything 'pinned' on Pinterest. After all, the terms also state that, ""Site Content" means Member Content and Pinterest Content." Point blank -- Pinterest assumes that you own copyright to whatever you 'pin' (which is laughable considering how the site is being used by 'Pinners') -- and from the wording in current Terms it appears they expect you to hand that ownership over by giving them strict rights. In other words, Pinterest can use your content (which is likely not technically your content to begin with IF you are 'Pinning' copyrighted materials from sources other than your own) for profit if they chose to do so.

For whatever reason Pinterest -- at least based on the Pinterest TOS agreement --has not made it clear that copyright owners of images 'pinned' retain ownership of their respected work. That is misleading because a copyright owner may not know that his or her content has been 'pinned' by someone else -- and Pinterest assumes that the Pinner has copyright. Instead the terms state, "Except as expressly provided in these Terms, Cold Brew Labs and its licensors exclusively own all right, title and interest in and to the Site, Application, Services and Site Content, including all associated intellectual property rights." In fact, Pinterest seems more concerned about people exploiting the website -- and their overall content -- than with the exploitation of copyrighted material in general. True, the terms do offer warnings about -- and resolutions for -- copyright disputes... but there is a lot of conflicting information as well. Hopefully that confusion will be dealt with in another Terms update at some point.

The Pinterest terms of service agreement does make it clear that Pinners should hold copyright to whatever they choose to pin, stating, "You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Site, Application and Services." However, I would suggest that Pinterest is fully aware that the majority of 'pinned' content is not owned by site users. It does not take long to realize that just by observing the main page of the website.

The Pinterest agreement terms go on to state, "Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available through the Site, Application and Services or you have all rights, licenses, consents and releases that are necessary to grant to Cold Brew Labs the rights in such Member Content, as contemplated under these Terms." -- which is their way of assuming that Pinners do in fact have the right... and thus they, Pinterest / Cold Brew Labs, have the right to use said content in anyway they choose. Note: That wording alone could become a legal mess if at some point Pinterest explores Print on Demand services OR starts to market prints (and other merchandise for that matter) involving Member Content solely for company profit -- which could technically happen based on how the TOS agreement is written at this time.

To be fair -- Pinterest's TOS agreement has a lot of info that is standard on most websites in general. Some of the wording is needed for websites of this nature to function -- and to avoid unnecessary lawsuits. For example, websites like Pinterest do need to have the right to use member content strictly for non-profit site promotional reasons -- or else they could be sued by any member who decides to terminate his or her account IF the content he or she uploaded remains on the website in some form. It is the way it is because individuals have attempted lawsuits against website owners in the past over these reasons.

TOS agreements can be tricky. Website owners generally want to protect themselves while protecting others. That goes 10 fold when artists are involved -- because artists are more apt to be upset about TOS wording compared to your average site user. I can recall similar issues spurred by deviantART's TOS agreement years ago -- and Myartspace (now defunct) had to make a few changes as well to appease artists. That said, Pinterest could do a better job of acknowledging copyright ownership in general -- and perhaps state that Member Content will only be used for non-profit site promotion.

Pinterest has offered what they view as a solution for the wider problem of alleged copyright infringement on the site. Ben Silverman -- co-founder of Pinterest-- recently stated, "We understand and respect that sometimes site owners do not want any of their material pinned. For these folks, we provide a snippet of code that can be added to any website." -- pointing to a recently released code that, in a sense, allows website owners to 'block' Pinterest users from 'pinning' things from their website. The only problem with this feature is that many feel that it should not be the responsibility of website owners to include Pinterest code on their website in order to 'protect' their pages from Pinterest users -- and thus, Pinterest overall. In fact, some have went as far as to describe this code as "intrusive".

Another interesting side of this is the fact that Pinterest has not officially -- as far as I know -- said anything about the concept of 'fair use' in regard to the site and Member Content. If the site truly expects website owners to safeguard their content by utilizing the offered code one would think that they would draw upon the concept of 'fair use' as a defense for user generated content on the site in general. After all, if a legal issue did arise from this... any legal team worth their weight in cash would 'attack' the idea that website owners should be expected to protect their content from another website -- especially when said website acknowledges the problem by offering what they view as a solution to avoid infringement. In a sense, Pinterest is saying 'we know that copyright infringement is a massive problem on our service -- so much so that we have created a way for you to block our site users -- but it is YOUR problem if you don't use our code'.

I honestly feel that Pinterest has good intentions -- I'd suggest that they just need time to get things right Terms-wise. That said, I do agree that they should probably re-think their terms of service approach in regard to copyright -- and perhaps implement some of the site-side tactics used by Youtube and deviantART to protect copyright owners. Not to mention that website owners -- including artists -- would probably not be so upset about being 'Pinned' if it were not for the fact that the terms on Pinterest technically state ownership of Member Content. Point blank -- the current Terms could easily become legally muddy depending on how Pinterest uses said content. For example, IF Pinterest offered a Print on Demand service involving Member Content images -- all Hell would break loose among copyright supporters. Trust me. Thus, they should declare that Member Content will only be used for non-profit site promotion -- that alone would be a step in the right direction.

With the above in mind, Pinterest is in a unique situation -- a rock and hard place, really -- compared to websites like Facebook and YouTube. I say that because Pinterest, as a service, clearly relies on copyright material -- whereas Facebook and YouTube involves a lot of content that is purely user-driven. For example, if you removed all of the potentially infringing content off of YouTube you would still be left with millions of member created videos and corporate sponsored videos. The same goes for Facebook -- if you removed all of the images, for example, you would still be left with billions upon billions of text-based wall posts. In a sense, Facebook and YouTube does not have to rely on potentially infringing material in order to function as a website and service -- they would still have 'meat on the bone' if all of the questionable content vanished tomorrow. Pinterest can try to claim the same -- but just a few glances of the site says otherwise.

In closing, do you have an opinion about these issues? Should copyright law be followed so solidly that it prevents people from introducing others to the artists they admire online? Should Pinterest modify site terms with artists and other copyright owners in mind? Is it wrong for Pinterest to expect website owners to include code that prevents 'Pinning'? Has Pinterest 'over-stepped' current law by claiming so much control -- as in rights to content -- over Member Content in general? Should they declare that Member Content will only be used for non-profit site promotion? Share your thoughts.

Take care, Stay true,

Brian Sherwin