Using Pinterest without Committing Copyright Infringement

            Pinterest is a platform that is gaining popularity like Facebook and Twitter did a few years ago.  Its users report an addiction stronger than Starbucks coffee.  Pinterest invites users to find images that other people have posted on the web and add them to the Pinterest user’s virtual pin board.  It has the potential to drive tremendous traffic to business websites and to help them sell products and services, but most of the images selected by each Pinterest user are “owned” by someone else under U.S. Copyright Law, presenting many pitfalls to be sued for copyright infringement.

            Copyright law in the United States protects all original content from the moment of creation for the life of the author plus 70 years, whether or not it is registered with the Copyright Office and whether or not it bears the copyright symbol of ©.  The copyright laws give exclusive rights to the author to publish, distribute, and make derivative works of the original work of authorship.

            Many people think that giving attribution to the original source is good enough, but attribution and permission are two different things.  How do you use Pinterest without committing copyright infringement?  Here are eight practical tips to minimize your exposure to claims of copyright infringement:

1.      Use your own content.  By using your own content, such as photographs that you personally take, you minimize the risk of copyright infringement.  (There is still a risk of copyright infringement if, for example, you photograph then pin an entire poem that belongs to someone else.)  The trade-off of using your own material on Pinterest is that you are giving Pinterest a “non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to use, display, reproduce, re-pin, modify . . . , rearrange and distribute” your content, according to its updated Terms of Service.  By pinning it on Pinterest, you give up your exclusive rights to that work whenever you pin it on Pinterest.

2.      Get permission.  The surest way to avoid claims of copyright infringement is to get permission from the owner of the work that you wish to pin.  Get it in writing.

3.      Use the “pin it” button.  If a content owner encourages users to share their material with the Pinterest “pin it” button, arguably the content owner is giving you an implied license to pin it.

4.      Give attribution.  Whenever you pin something that belongs to someone else, be sure to attribute the original source.  This will not protect you from a claim of copyright infringement if you’re lacking actual permission, but it may minimize your exposure.  A further tip:  don’t just upload directly from Google Images.  When you do that, Pinterest gives the attribution to you by stating “uploaded by user,” rather than giving it to the original source.

5.      Pin products rather than art.  This is based more on common sense than the law, but businesses selling products presumably want to get the word out about their products and appreciate the free word of mouth publicity you’re generating on their behalf.  Some artists appreciate you pinning their work, too, but many artists make money selling or licensing original works, and would argue that you’re driving down the value of their work.  (Caveat: some brand owners may assert claims of trademark infringement if you use their marks without permission.)

6.      Limit your pinning to repining.  When you re-pin material that has already been pinned on someone else’s board, you arguably have the protection of Pinterest’s Terms of Service, which explain that no one should pin anything on Pinterest unless they have the right to do so.  Thus, if ever sued for copyright infringement, you could argue that you had a good faith belief, based on Pinterest’s Terms of Service, that any material you re-pinned was originally posted on Pinterest by someone who had rights to put it there.

7.      Be careful when pinning for profit.  A defense many people point to when sued for copyright infringement is the Fair Use Doctrine, which looks at four factors, one of which is the nature of the copying, and whether it is commercial (meaning, for money) or not.  It is harder to successfully argue fair use when the copying is done for profit than for a hobby or educational purposes.

8.      Pin less than an entire image.  Back to the Fair Use Doctrine: it’s harder to succeed with this defense when you’ve copied the entire image of a work belonging to someone else.  Consider copying only a small portion of the image instead.

            Using Pinterest is a lot like riding in a car.  In a car, you can use a seat belt, turn on your lights, and pay attention to the road to avoid accidents, but you can still be hit.  These are some tips to help you minimize the risk of being sued for copyright infringement when using Pinterest.  The smarter you are, the lower your risk; the more aggressive you are, the higher your risk. 

            Businesses have a lot to gain by using Pinterest, mainly driving traffic to their websites and building brand identity, loyalty, and interaction with customers.  To help protect your business from exposure to lawsuits when using Pinterest, consult a qualified intellectual property lawyer who can tailor advice to your unique situation.  The above tips are not intended as legal advice.

"Always On," Consumers Expect Businesses to Embrace Technology Even More

In this new iPhone world, where consumers can download an app at the press of a button, businesses must embrace technology or risk being left behind.  When I say embrace technology, I'm not talking about just having an Internet presence or just using social media for marketing.  I mean using technology to create new apps, tools or games that let you instantly connect and engage with your customers.


Brian X. Chen, a writer for Wired Magazine, was recently interviewed on NPR's Fresh Air from WHYY.  Here's a link to the story and the interview.  In the interview, he discussed his new book, Always On: How the iPhone Unlocked the Anything-Anytime-Anywhere Future -- and Locked Us In. 

From a business perspective, the most fascinating part of the book is Chen's comment on how consumers' expectations have changed in light of the way the iPhone lets them unlock worlds of knowledge in the swipe of their phone screen.  In an excerpt from his book, he writes: "The iPhone changed our standards for what we expect from technology, and as a result, businesses are being forced to give us more for our money. We don't want seven pieces of hardware to perform seven different tasks; we want a single gadget capable of doing anything-anytime-anywhere. Soon, manufacturers will no longer be able to sell single-function gadgets lacking an internet connection because those gadgets will soon be obsolete. Consequently, a large number of companies and industries find themselves threatened because a downloadable app can easily replace nearly any dedicated, single-use product."

How is your business using technology to satisfy consumer expectations?  What app could you develop to keep your customers engaged?  Are you thinking from the mindset of a customer who owns an iPhone, and who expects information immediately? No matter your industry -- entertainment, publishing, banking, technology, professional services, arts, health care, environmental -- customers want more from you, and they expect it in the form of instantly accessed technology.

The Next Tidal Wave in Social Media: Video, Apps, QR Codes and Location-based Software

Video, apps, QR Codes and LBS (for location based software, not pounds) are about to be the next tidal wave in social media. It's not that Facebook, Twitter and LinkedIn are losing any prominence (yet), but more and more businesses are waking up to see new ways to connect with their audiences. When law firms and banks (conservative by nature) start adding video to their home pages, you know something's catching on.

As these forms of social media become more popular, they raise new issues for the law to grapple with. Who owns the content? Did you get permission to include an image of that person or that song in your video? Have you informed your users that you plan to sell information about their visiting patterns whenever they view your site? Thoughts for businesses, legislatures and the courts to consider...

Video: Protecting Your Family & Your Reputation when Using Social Media

I was recently invited to speak on "Digital Citizenship and the First Amendment" at The Leadership and Civility in a Digital Age speaker series, presented by Lipscomb University’s Nelson & Sue Andrews Institute for Civic Leadership and Department of Communication and Journalism and by Centerstone.  My friend Debi Tate, a former commissioner on the FCC, invited me to join First Amendment scholar Gene Policinsky on the panel. 

Typically when I speak on legal issues in social media, it is to an audience of business leaders or marketing professionals.  Last night was an opportunity to look at these issues from the perspective of the individual consumer and citizen.  With that in mind, I titled my talk "Protecting Your Family & Your Reputation when Using Social Media."  We had a great crowd and a good conversation.  For a link to the video, go here. 

WaterCooler goes to Corsair Distillery for Exclusive Tasting & Tour

If you missed the last WaterCooler, you missed a great event!  Nashville's only distillery, Corsair, gave us a behind-the-scenes tour of how they make and distill what is quickly becoming one of the most sought-after small batch liquors in the U.S. when they hosted us in April 2011. 

Located in Marathon Village, which used to house Yazoo Brewery, Corsair had to work mighty hard to even get up and running in Tennessee. 

Darek Bell

Because Tennessee's laws and Nashville's laws were so onerous, Corsair actually began in Bowling Green, Kentucky.  Only after they were able to convince the state and local lawmakers to allow them to "manufacture intoxicating liquors" were they able to come back home. 

As part of a private event for WaterCooler, co-owners Darek Bell and Andrew Webber showed us around, told the story behind Corsair, and gave us samples in their tasting room.  The Tennessean just reported that members of the public won't get this same opportunity until the laws are changed. 

Andrew Webber

To join the invitation list and receive news about upcoming WaterCooler events, shoot me an email. Thanks to everyone who showed up.  See you at the next on on May 9 at Conexion Americas! 

Here are some photos from WaterCooler at Corsair:

Want to Limit Liability Against Copyright Infringement Claims when Hosting User Content on your Website?

If you host a website that invites the public to submit content, often called UGC (or User Generated Content), you may want to read the recent summary judgment decision in Arista Records LLC v. Myxer Inc. and stay tuned to the final outcome at trial.  Website hosts that allow UGC run the risk of being sued for copyright infringement, among other claims, because users sometimes submit material whose copyright belongs to someone else.  If a copyright owner sues you for copyright infringement in your role as a website host, one of the most common defenses asserted is that the web hosting is protected under the DMCA (Digital Millennium Copyright Act). 

On April 1, 2011, a federal court in California issued the above decision in a case pitting content owners against website hosts.  UMG Records and other music companies sued Myxer and its principals for copyright infringement because Myxer hosts a website that invites the public to upload music and then download it as ring tones on cell phones.  Myxer doesn't pay UMG anything, and UMG argues that it loses money every time a ring tone is downloaded through Myxer.

Myxer asserted two primary defenses: that its use was fair use and that it was protected by the DMCA's "safe harbors."  On summary judgment, the court rejected Myxer's fair use defense, finding that converting the songs into ring tones did not qualify as a "transformative" use and finding that Myxer's business model likely cut into UMG's market. 

But the court kept alive Myxer's DMCA defense.  It found that genuine issues of fact existed regarding Myxer's implementation of a DMCA policy and regarding the speed with which it removed allegedly infringing material.  Now it will be up to Myxer to prevail on this defense at trial.

Just like Myxer is hoping to do, businesses that allow the public to post content on their websites may limit their liability against copyright infringement lawsuits by following some steps under the DMCA.  As a ground rule, if you create or direct content on your website that infringes on another's copyright, you can't turn to the DMCA for help.  But if all you do is host content created by others, to get the benefits of DMCA protection you need to (1) adopt a  DMCA policy and communicate it to your users, (2) appoint a DMCA agent, (3) follow the DMCA steps of quickly responding to accusations of hosting material that infringes another's copyright, (4) permanently remove repeat infringers, and (5) receive no financial benefit directly attributable to any infringing activity on your site. 

To read more about how to protect your business under the DMCA, check out this great resource from the EFF (Electronic Frontier Foundation), or contact an attorney with experience in copyrights and intellectual property law.

Griffin Technology Hosts WaterCooler

WaterCooler is a monthly networking event for "young" entrepreneurs.  (I take liberty with use of the word "young" since my co-founder and I are pushing 40, and since we'd like to stay involved for a while.  With that in mind, we include anyone in their 20s, 30s and 40s.)  We started this fun venture in September 2009 and highlight a different local business or expert each time.  Lately we've been enjoying the field trips, visiting Yazoo Brewery, Olive & Sinclair Chocolate Co., and (coming up on April 18) Corsair Distillery.  It's a casual way to meet others who are active in the business, cultural and philanthropic worlds of Nashville.  Hopefully connections will be made at WaterCooler that spur new entrepreneurial and community collaborations.  If you'd like to be added to the list, email me at szralek@bonelaw.com.

Griffin Technology graciously hosted us on April 23.  Jackie Ballinger, its Marketing and PR guru, welcomed each guest and provided us with an incredible array of food and drink.  Also greeting guests as they arrived was this VW bus, which employees use for impromptu meetings, and which Griffin has traveled in for marketing at SXSW and Bonnaroo, to name a few:

Photo courtesy of Griffin Technology

Mark Rowan, Griffin's President, spoke about its background, its international reach and its commitment to Nashville. 

Photo courtesy of Griffin Technology

It was clear that Griffin is a dominant player in the global tech scene, and we're lucky to have it right here in our own backyard.

After, Jackie led us on a tour of their new work space.  We saw the wall of awesome accessory covers, the vending machine stocked with beer, and the work station decked out in action figures -- none of which is a regular feature where most of us work:

In the highest form of flattery (jealousy), everyone decided to ditch their current job and apply to work at Griffin. 

Here are some photos of the event:

Video of Recent Presentation on Legal Issues in Social Media

In late January, Indie Connect asked me to speak with professionals in the music industry about the pressing legal issues in social media.  It was an honor being with them.  They were kind enough to capture a video of the presentation, which you can watch here. 

If you'd like me to come speak about Social Media Law with your business or group, email me at szralek@bonelaw.com. 

Last week I spoke on social media legal issues to the Tennessee Bar Association.  Yesterday, the Nashville Business Journal selected me to be one of four panelists at an upcoming presentation on social media to the business community.  And in late March, I'll be co-presenting with Taylor Vick of Point3 Media on the collaboration needed in social media between legal and marketing; we'll be at PodCamp in Nashville.  Our title is "Kill All the Lawyers: Marketing through Social Media the Legal Way."  Sign up to attend -- it's free, and there will be incredible sessions on social media all day long.

Best Practices for Businesses: Tip #1: Adopt a Social Media Policy

According to a February 14, 2011 article on Mashable.com "social media is predicted to see one of the biggest increases in online marketing spending this year."  With that in mind, businesses need to adopt and implement a social media policy.  In fact, they should implement two policies: one for all employees, and another for those employees responsible for official social media communications on behalf of the business.

Some businesses may say that there's no need to have a social media policy because they aren't officially engaged in social media.  Even if a business doesn't officially participate in social media, you can bet its employees are on Facebook or Twitter.  They're definitely using social media after work, but probably using it during working hours, too.  Their unofficial use of social media makes it important for businesses to set some guidelines.

Businesses should consider adopting two separate policies:

1.  A social media policy for ALL employees.  Businesses should provide all employees general guidelines on certain matters, for example: keeping business matters confidential, affirming that employees should have no expectation of privacy for anything posted on a publicly-accessible site, and reminding employees that they should clarify that any opinion expressed is made in their individual capacity, not on behalf of their employer.  In light of a recent NLRB settlement with a Connecticut ambulance company who discliplined an employee for making negative comments about her employer on Facebook, businesses should be very reluctant to limit employees' right to discuss the terms of their employment (like wages and conditions).  Businesses should adopt this policy even if they do not officially engage in social media as a company.

2.  A policy for employees responsible for official social media communications of the business.  Those employees responsible for communicating on behalf of the company through social media need guidelines.  They need to know what is acceptable language, how to respond to negative reviews of the business, and their responsibilities when inviting user generated content.  There are laws governing marketing to minors and regulations requiring disclosure of any material connection between a blogger and a business.  These are just a few of the items a business should consider when crafting its social media policy.