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Should You Quit Pinterest? Terms Of Use and Liability

About ten days ago, photographer and lawyer Kirsten of DDK Portrait Photography wrote that she was tearfully deleting her Pinterest boards because after a close reading of Pinterest’s Terms Of Use policy, she worried about issues related to copyright and liability. Why?

Because Pinterest’s current Terms of Use policy (the one you accepted when you joined the site) states that when it comes to issues of liability, it’s YOU that gets sued not Pinterest.

Yes, YOU.

Gulp.

In her post where she delves deep into the TOU, she talks about the red flags she spotted that made her want to cover her legal butt.

Her concerns about this section of the TOU really caught my eye:

INDEMNITY

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.

LIMITATION OF LIABILITY

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.

She observed the following about this clause:

This “defend and indemnify” stuff means that if some photographer out there decides that he or she does not want you using that photogs images as “inspiration” or otherwise and decides to sue you and Pinterest over your use of that photog’s images, you will have to hire a lawyer for yourself and YOU will have to hire a lawyer for Pinterest and fund the costs of defending both of you in court.  Not only that, but if a court finds that you have, in fact, violated copyright laws, you will pay all damages assessed against you and all damages assessed against Pinterest.  OUCH.  Oh, but it gets better.   Pinterest reserves the right to prosecute you for violations. Basically, Pinterest has its keester covered and have shifted all of the risk to you.

Oof. Scary, right?

Sara of Saving For Someday, also a lawyer, weighs in on the issue of copyright and Pinterest as well.

First, let me say that the Pinterest Terms and Conditions are pretty straight forward. While I’d guess about 90% of the Pinterest population just clicked the ‘agree’ box, I, in fact, have read the T&C. Several times. There are places where they are convoluted and exceedingly verbose. And, in many instances they’re quite a bit more ‘techy’ than they really should be. But, being a lawyer who works with online content creation, protection and sharing I’m probably a bit deeper into the reality of how a site like Pinterest is used than the average corporate or tech attorney. That being said, I didn’t see anything in Terms and Conditions or Copyright notice that would raise any red flags related to privacy or copyright protections.

At the heart of the matter is a tangled mess of promotion and copyright; after all, since the founding of the internet and the surge of digital imaging, we’ve been posting our photos and images online. That said, there is a major difference between my mundane Instagram stream and, say, my best friend’s incredible photography that she spends hours of effort on. While it’s lovely to bring more eyes to her work via Pinterest, does it actually help the photographer in the long run? My friend has her Flickr account set so that people cannot download her work, but people can pin it at will from her website (unless she installs the code to block pinning, of course).

I think it’s important to remember that Pinterest is still a young site, and with time, many of these issues should resolve hopefully without putting users at risk. But I do highly recommend that you think BEFORE you pin; are you properly crediting this person for the image? Did you pin from a blog POST, not the general blog SITE? Is the image watermarked? Does the photographer have a copyright definition on their site that tells you how they feel about their images being used elsewhere? Did you have to download that image to pin it (if this is true, unless it’s your own image, don’t be an asshole skip pinning it)?

If we all are smart about using Pinterest, we can keep our joyful exuberance about the site. But be careful. I recommend you read Sara’s full article about copyright and Pinterest (the one I referenced above) carefully for more tips about being a responsible pinner.

Edited to add: Pinterest is taking these concerns seriously; they reached out to Kirsten and spoke to her at length about how best to address these issues. Good on Pinterest! (Hat tip to LizPW of Eat, Drink, and Be Mommy for letting me know about this update!)

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