A few weeks ago, I was at an event that focused on, you guessed it, Pinterest. Great, I thought. We’ll hopefully hear about some of legal issues swirling around Pinterest for brands right now. It was just that week before that legal concerns had broke–and one attorney/photog had taken down her Pinterest board as a result. But, unfortunately, we didn’t get to discuss those legal concerns at this event–even though their was an attorney at the event who just so happened to specialize in social media.

So, I thought I’d take this chance to approach said attorney to answer some of the questions I have about Pinterest and brand usage (as I’m sure many others do at this point) and open up the discussion a bit. We’ve heard a lot about what the legal issues mean for the users–but what do they mean for brands? Insert Kelcee Patrick-Ferree, an attorney focused on internet and social media law. Let’s hear what she has to say about this issue that’s seemingly on many minds right now.

Note: When reading this post, keep the following disclaimer in mind: These answers are offered for informational purposes only and should not be relied upon as legal advice. If you need legal advice on this topic, please consult with an attorney regarding your own situation.

Over the last few weeks, significant legal concerns have emerged around Pinterest. What’s the real risk for brands thinking about using Pinterest at this stage?

I must, unfortunately, give the classic lawyer answer: it depends!

If a retailer wants to promote its own products through Pinterest without ever re-pinning anyone else’s content, there is very little risk. The usual rules will apply, of course, in the same way that they do on Facebook or Twitter: disclose significant relationships, don’t use others’ content without permission, and so on. The legal issue du jour is copyright, and several retailers already have social media policies prohibiting posting other companies’ content to their own social media pages/profiles/etc.–as long as brands apply those rules consistently, they should be fine. On the flip side, all companies should consider whether they mind granting a license to Pinterest as defined in its Terms of Use. For brands like retailers that care about promoting products, as opposed to protecting the intellectual property associated with photos of those products, the analysis will likely favor using Pinterest.

Pinterest may, however, give businesses whose products are images pause. Photography studios in particular may not like the Terms of Use; on the other hand, most other social media sites’ terms are very similar to Pinterest’s when it comes to granting rights to the website and to other users. In the end, it is basically free advertising, just like Facebook and Twitter, so it is a matter of deciding what non-monetary compensation a brand is willing to give for free advertising.

Posting content belonging to others always has risks, but there is more to the matter than “post only what you own.” The Terms don’t say you have to own it; they say you have to own it or have the right to post it (which is also true on any social media site–this merely affirms what the law already says). There are many ways to have that right. Some websites’ own Terms of Use do give that kind of permission, usually in the form of a policy regarding links to the site. Some photos are subject to Creative Commons copyright, which allows for sharing for non-commercial purposes. Some photos are not copyrighted at all, either because they belong to the U.S. government (which cannot own a U.S. copyright) or because they have fallen into the public domain. Brands could also have that right by pinning in a way that doesn’t infringe copyright, such as engaging in fair use (more on that later).

For many brands, those legal concerns will be enough to scare them away from even considering Pinterest as a tool. If you were counseling a Fortune 500 brand–or even a midsized or small business–what would your advice be for those organizations considering Pinterest?

If the company wants to be very cautious, it should join but pin only its own content that it does not mind granting a license to. There are several companies, including Fortune 500s, that have already done so, including Target and Home Depot. Target is using Pinterest to promote its own products from its own website only, and it fits the bill I described above: it cares more about promoting its products than protecting the intellectual property associated with photos of those products. Home Depot has been more adventurous and is pinning outside content, mainly ideas for room decor. This surprised me a little; I followed a couple of Home Depot’s repins back to blogging sites that did not clearly own the photos they were posting, or give permission for users to repost their content. Home Depot’s social media folks may know something about those sites that I do not, though (e.g., it’s possible that the content is coming from the personal blog of a Home Depot employee who gave permission, or the social media folks have offline, written permission to use the content–I have no way of knowing).

Smaller businesses and businesses focused on services rather than products may wish to be more adventurous and interactive, pinning products from other companies and repinning content from other users. In those cases, they will want to have permission to use the photos that they pin (either directly or via the other company’s Terms of Use). If there is a doubt, it’s better not to pin. In the case of repinning, the site is merely framing already-uploaded content (i.e., displaying the content in a slightly different context, but not making a new “copy”), so despite the fact that the Terms of Use do not grant users a sublicense to repin content, there is unlikely to be liability arising out of the act of repinning itself. But this may not be sufficient to ensure users are not on the hook for repinning infringing content. Again, the rule of thumb will be: make sure you own the content, have permission to use it, or have permission from someone who had the right to grant you that permission.

What about those brands that have already been pinning for months? What are the risks for those companies? Especially if they’ve pinned content that they don’t own?

The risks are the same as they would be for any company that posts content that it does not own to a social media site. They could be sued for infringement, if the way they posted was infringing–but keep in mind, there are a lot of ways in which the content could be non-infringing, ranging from the posted policies of the other company’s website to the way in which it was posted to an existing business relationship between two entities. They could also be required to indemnify Pinterest if the owner sues Pinterest for the infringement. If a company has been pinning for months, now may be a good time to re-evaluate whether its pins are likely to cause it trouble.

Apparently there’s been a discussion on Quora about the legalities and people are saying Pinterest should be safe citing a Ninth Circuit United States Court of Appeals decision in the Kelly v. Arriba Soft Corp. Do you know about this case? Does it have precedence in the matter concerning Pinterest?

Kelly v. Arriba Soft did not deal with a situation exactly like that of Pinterest; although the website in question in the Arriba Soft case did work similarly to Pinterest, displaying a thumbnail which could be clicked on to then display a larger version of an image,  it was a search engine that used algorithms, not a user-based site, and the court decided only the question of whether the thumbnail was allowable (it was in that instance). Pinterest is more likely relying on a combination of its Terms of Use, which place the onus on users to make sure that they have the right to add the content that they pin, and Section 512 of the Copyright Act, which provides a safe harbor for internet service providers who have infringing content on their sites due to user posting, so long as they provide a mechanism for copyright owners to have the infringing content removed–think YouTube, which hasn’t gone out of business yet.

On the user side, it seems like users are taking all the risk with Pinterest (and Pinterest, smartly, is covering its quarter-hinders). First, is that true? And second, if it is, is this just a case of the law not catching up to technology, or is there real risk for Pinterest users RIGHT NOW?

That is true to the extent that it can be true, as it is for any website you ever visit that has Terms of Use. Pinterest’s terms are not very different from any other social media company’s terms. The attorney who drafted them for Pinterest was advocating for Pinterest, not for the users of Pinterest’s services.

That said, the risk is likely not high unless the users are doing something that they shouldn’t beyond merely posting photo links on Pinterest. Fundamentally, most businesses are pleased when someone posts a link to their site as part of a “beautiful home decor” collection. Why would anyone try to discourage that behavior? The Wall Street Journal published an article the other day comparing Pinterest to Napster, and I could not disagree more. Napster was a method of sharing things so that you did not have to buy them. Pinterest is a method of sharing things with a handy link to where you can buy them from the people who make them. How is this a problem? And who would sue his customers for giving him free exposure and better SEO?

Problems are more likely to arise where users are pinning or repinning content that derives its economic value from its own existence, as opposed to from what it depicts. I would be very cautious about posting photographers’ work or photos of works of art.

In a recent Forbes article, a suggestion is made that Pinterest change the wording from “Describe” to “Comment” when asking users to add their two cents after pinning a photo. The claim: this would help with fair use defense. Do you think that’s true? Would that be something Pinterest should consider? And would it really resolve the bigger legal issues here?

Yes, it likely would help users with a fair use defense, assuming they are actually commenting rather than describing. Fair use is defined in Section 107 of the Copyright Act as including uses for purposes like “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” Even if a use meets the purpose criteria, though, it still must meet the four-part test laid out in the statute. Most important to this question is the fourth factor: “the effect of the use upon the potential market for or value of the copyrighted work.” Posting photographs of products to Pinterest will likely meet all four criteria, including the fourth (it is difficult to imagine how posting a photograph of a mixing stand from a commercial website could hurt the market for the photograph); but posting photographs where the photograph itself is the product would present more interesting issues.

I am not certain that changing the wording to “comment” would make a big difference to Pinterest itself, which likely relies on Section 512 of the Copyright Act, as noted above. As to the broader legal issues, I do not believe they are significantly different from those already presented by other social networking sites that allow users to post photographs. As a general rule, businesses and individuals alike should not be posting content on the internet that they do not either own or have the right to use.

Finally, how do you see this issue playing out in the months ahead? Pinterest is obviously aware of these issues. And brands are going to be reticent now (and so are users, actually), given the legal talk. Is there an end-game here that will make brands (and users) feel more at ease?

I think that the entire matter has been blown out of proportion, but Pinterest needs to reassure its users, and Pinterest-friendly sites also need to reassure their users. I suspect that a new Terms of Use will be coming out soon, addressing some of the issues that have been raised over the past few weeks. Pinterest’s ideal situation will be that it becomes so widely adopted that no one needs to “lift” content from websites to pin it, because the website owner will pin it. Pinterest may allow users to block repinning as well, to alleviate some of the concerns of photographers and others who may not want to allow repinning but may want to make content available on the site.

Copyright is something of a dinosaur, but I don’t see the laws changing radically any time soon. The laws protect the unsophisticated as well as the sophisticated, and that isn’t a bad thing. Businesses that want to take advantage of the essentially free advertising that comes from sites like Pinterest will need to make sure that they have taken steps to allow for such uses, by utilizing a Creative Commons copyright, putting terms allowing for sharing into their site Terms of Use, and/or putting “Pin It!” buttons on their sites.

Kelcey Patrick-Ferree is a business attorney focused on internet and social media law. She is active on several social media sites, including Pinterest. You can learn more about her and her practice at www.businesslawmn.com.