When adding an image to Pinterest, an online image-sharing network, you’re required to enter a caption.If you don’t you’ll get an error asking you to “describe your pin,” as shown below.
This tiny attention to detail from Pinterest’s developers could be the thing that keeps them from getting their butts sued off for copyright infringement, according to Itai Maytal, an associate at New York law firm Miller Korzenik Sommers, which specialises in media and intellectual property.
By adding a caption, Pinterest is essentially making you comment on the photo. By commenting on that photo, Pinterest can make the argument that having the photo on its site could be protected under “fair use.”
“It would favour them because it’s commentary, and commentary and parody are some of the types of uses that the law encourages,” Maytal. “It certainly wouldn’t end the analysis, so the jury would still be out as to whether this is all protected under fair use.”
Just because it’s a caption doesn’t necessarily qualify it as a comment in the full the spirit of fair use, Maytal said. It’s not simply, “we put a caption, leave us alone,” he said, so you have to examine the caption more closely.
Pinterest is facing some scrutiny as to whether the process of “pinning” an image — basically adding a full version of the image to the site — without a licence is copyright infringement.
This caused one lawyer named “Kristen,” who was worried about whether she would be held responsible for copyright infringement for pinning what could be licensed photos, to delete some of her pinboards out of fear.
Pinterest will still have to go through the other parts of a four-part test that determines whether an image is legally presented under fair use, as Maytal laid out in our earlier interview with him.
But this could keep professional photographers and other image owners from suing Pinterest for illegally sharing their work without paying for a licence.
But the best response is to take down copyrighted material if the owner is complaining in any case, Maytal said.
The co-founder of Pinterest reached out to that same lawyer that deleted her pinboards, saying that the site is still trying to figure out an elegant solution to its copyright questions.
We reached out to Pinterest for comment on the story, but haven’t heard back yet.