Pin the Tail on the TOS
I’ve been watching the Pinterest saga for a few weeks now. Although I have an account, I haven’t used it yet (although I find it interesting that people have somehow found me there). As is the case with many social networks, the issue here are the terms of service that you agree to when you use Pinterest. Depending on your position (and your area of photographic expertise), you are either unbothered by these terms or you find them ridiculous. First, here are the terms as posted here (emphasis mine):
By making available any Member Content through the Site, Application or Services, you hereby grant to Cold Brew Labs a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content only on, through or by means of the Site, Application or Services. Cold Brew Labs does not claim any ownership rights in any such Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such Member Content.
You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Site, Application and Services. 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; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or Cold Brew Labs’ use of the Member Content (or any portion thereof) on, through or by means of the Site, Application and the Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Right off the bat, it’s obvious this is generic CYA legal speak: when in doubt, claim everything and you’re covered. And looking at the terms, it looks like they’ve claimed just about anything they can (except for ownership, which is relegated to near-junk-bond status after the pilfering of rights listed above). As listed, they can do pretty much whatever they want with the content you have. At first glance – who cares? If I’m posting a product link to B&H, I don’t care about this part. Where I do care, however, is with my content. My images are mine, and I don’t like such grandiose rights claims about them, especially on a site that won’t work without users submitting their content. Even more ridiculous is the second paragraph above, where they assert that you must either have the ownership to the content you post, or have secured the rights to post it. Who has such rights to all of the content on the internet? Of course, no one. Your interests are varied, and you want to share them. You’re not a ‘collector of rights.’
In this way, Pinterest’s TOS are at odds with its own reason for being: if you can’t share what you don’t own, you can’t pin, and if you can’t pin, Pinterest has no content. It’s like signing up for a 5k race and then being told by the organizers that you need to get the proper permits from the city to have a race. No one would show up.
Some photographers (Trey Ratcliff, notably) argue that you should stop complaining and embrace the wave of the future. This being the wave of giving away your work for free, hoping that exposure to the world (consisting mostly of, surprise, other photographers) leads to being hired by ‘other’ people (the ones that actually hire photographers)). Trey is an awesome, successful photographer, but he’s also an edge case. You cannot start a photo business today by self-funding shoots, giving those away for free, hoping for someone to hire or license them. It’s not a business plan.
Indeed, some photographers have begun to question their use of Pinterest, even removing their images entirely. Others (some wedding photographers, for example) have openly embraced Pinterest because it is good at driving traffic and getting your work in front of the public. This is why I said that it depends on the type of photographer you are. Family/couple-related imagery usually has no lasting commercial value, because (at least on the wedding side) most photographers license those images to the clients to do with as they please. There’s nothing to stop someone (nor should there be) from pinning their favorite image from their wedding.
What’s been missing so far in this is a response from larger commercial companies. Should the legal team of a large company be concerned that Pinterest claims an open-ended license of their assets? Maybe, maybe not. On the one hand, what would Pinterest do with them? I thought of this for a while. What if they put together a harmless television ad, showing a collage of content submitted by users? Do you think the Pinterest legal team might make some effort to license, say, this pinned image before featuring it in an ad? You bet they would.
Pinterest eventually will have to clarify their TOS (last updated March, 2011). We saw the same thing with iBooks Author when it was released. Pinterest can be a very powerful platform, with a lot of *trusted* engagement, if they do.
In the meantime, I’ll keep my account there open, with nothing pinned. Well, except for this article.
The irony of pinning this post, with accompanying Pinterest logo, is not lost on me. According to their TOS, I must own their logo.