Individual bloggers are held to higher legal, ethical standards than Pinterest
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and Photobucket. Why?
As of Friday, 14 November 2014, Photobucket has 154, 572 “Frank Sinatra” pictures & images, and 104, 680 in their “Marilyn Monroe” pictures & images gallery.
Photobucket actually sells prints (framed and unframed), “canvas wraps, and holiday cards using many of the hundreds of millions of images published on its site. I was unable to find copyright information provided by Photobucket or its users on any of the dozens of images that I checked. It’s not even remotely conceivable that all of the images on the site, or any significant percentage of them, are licensed for copyright use by Photobucket users. If the users had bothered to license them for a limited time, for a price, why would they turn around give away their rights to the use of the images to Photobucket?
I was also unable to find copyright information provided by Pinterest or its users on any of the dozens of images that I checked there.
Questions:
1. What percentage of images pinned by the 100 million Photobucket users and 70 million Pinterest users are copyrighted? Answer: Probably the vast majority of them.2. What percentage of the billions of images to be found on these sites have been licensed for use of any kind by Photobucket, Pinterest, or their users by purchasing or otherwise obtaining such license from the copyright owners?
3. If commercial image hosting, image sharing, and social networking sites are allowed to publish billions of such images without even bothering to find out who owns them, and Photobucket openly attempts to sell many such images, why should the individual blogger be held to higher ethical and legal standards?
The blog I need help with is: (visible only to logged in users)
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Pinterest and Photobucket place the entire burden of identifying copyright ownership and acquiring copyright licenses and facing all legal consequences arising from infringement claims upon their users, cleverly absolving themselves from legal responsibilities and liabilities in their respective Terms of Use that a user is required to agree to. One of the problems with this tactic is that Pinterest certainly knows, or could easily discover should they attempt to monitor what’s being pinned by their users, that in the vast majority of cases the images posted are not licensed at all by the user, and therefore not licensed to be used as they are allowed to be (copied, re-pinned, edited, etc.) by Pinterest, by all Pinterest users, and by merely curious Pinterest visitors.
Kirsten Kowalski, a portrait photographer and once avid Pinterest user, wrote of her disillusionment with Pinterest in an article titled “Why I Tearfully Deleted My Pinterest Inspiration Boards,” published about 3 years ago at ddkportraits.com. Kirsten also happens to be a lawyer so she was able to understand and interpret the legal jargon she encountered in the Pinterest terms of use better than the average Joe might be able to. She writes (quotes from the Pinterest TOU shaded maroon):
<span style=”color: #000080;”>What is the difference between posting another person’s photographs on your Pinterest page and posting another person’s photographs on your Facebook page? If the latter is so clearly a violation of copyright why isn’t the former? Being both a photographer who loves Pinterest (and admittedly had some really great “inspiration” boards full of gorgeous work from other photographers) and a lawyer who, well, is a lawyer, I decided to do some research and figure this out. And what I discovered concerned me. From a legal perspective, my concern was for my own potential liability. From an artist’s perspective, my concern was that I was arguably engaging in activity that is morally, ethically and professionally wrong.
<span style=”color: #000080;”>“Liability? Morals? Ethics? Wrong? HUH???” you may be asking? “It’s just Pinterest! And Pinterest itself discourages pinning your own work – so whose work are you supposed to use?” Good question. Unfortunately, the answer is not what I wanted and the analysis in reaching the answer is quite complicated.
<span style=”color: #000080;”>I began my inquiry into this by going to Pinterest first. I figured the creators of the site must have researched this and must have gotten comfortable that use of their site is lawful. If so, this must be addressed somewhere in their Terms of Use or somewhere on the site. Well, this is what I found:
“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.” <span style=”color: #000080;”>(From Pinterest’s Terms of Use).
<span style=”color: #000080;”>Um. Uh-oh.
<span style=”color: #000080;”>“Member Content” is defined as anything you post, upload, publish, transmit, etc. on the site. This includes pinning from the web and re-pinning right from Pinterest itself. I immediately thought of the ridiculously gorgeous images I had recently pinned from an outside website and, while I gave the other photographer credit right in my pin (how many of you do that by the way? Not that it makes it any more legal, just sayin’….), I most certainly could not think of any way that I either owned those photos or had a license, consent or release from the photographer who owned them. But did I somehow have a “right” to put them on Pinterest? “I MUST have that right,” I reasoned, “after all, this is what Pinterest is ALL ABOUT!”
But what really made her nervous and tipped the scales hopelessly against her keeping her work on Pinterest boards was the following:
<span style=”color: #000080;”>In several places in Pinterest’s Terms of Use, you, as the user, agree that you will not violate copyright law or any other laws. And then there is this:
“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.” <span style=”color: #000080;”>(yes, this is in ALL CAPS right in their TOU for a reason).
<span style=”color: #000080;”>And then, there is this:
“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.”
<p style=”text-align: center;”>_____________</p>
<p style=”text-align: left;”>(not from the Kowalski article)</p>
<p style=”text-align: left;”>Photobucket actually sells prints (framed and unframed), holiday cards, and “canvas wraps” using many of the hundreds of millions of images (100 million users claimed) published on its site. I was unable to find copyright information on any of the dozens of images that I checked. It’s not even remotely conceivable that all of the images on the site, or any significant percentage of them, are licensed for copyright use by Photobucket users. If the users had bothered to license them for a limited time, for a price, why would they turn around give away their rights to the use of the images to Photobucket?</p>
From the Photobucket Terms of Use, Content & Privacy section:- <span style=”color: #000080;”>When you make your Content public, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to copy, distribute, stream, post publicly display (e.g. post it elsewhere), reproduce and create derivative works from it (meaning things based on it), anywhere, whether in print or any kind of electronic version that exists now or is later developed, for any purpose, including a commercial purpose.
- <span style=”color: #000080;”>By making your content public, you are also giving other Members on Photobucket the right to copy, distribute, publicly perform, publicly display, reproduce and create derivative works from it via the Site, third party websites or applications (for example, via services allowing Members to order prints of Content or t-shirts and similar items containing Content, and via social media websites), provided such use is not for a commercial purpose.</span>
- <span style=”color: #000080;”>By uploading, you are confirming that the Content is yours—no one else’s—and that the uploading and use of your Content does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights or human rights of somebody else. If we learn that you are infringing others’ rights or are using Content that is not yours, Photobucket has the right to remove this Content and you agree that you are responsible for any costs associated with the infringement.
Later, under the “Things to Keep in Mind” section of the TOU, we find:
- <span style=”color: #000080;”>Your Indemnity to Us. If you breach any of the representations made herein regarding your rights in the Content, or your uploading of Content violates any of the promises you have made, you agree to indemnify, defend and hold Photobucket, its subsidiaries, and affiliates, and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of the Site and Photobucket Services in violation of that and/or arising from any Content that you post on or through the Site and Photobucket Services.</span>
- <span style=”color: #000080;”>Some Obligations Continue Even After You’ve Gone. Even if you close your account or we terminate your Membership, you will still be responsible for indemnifying us for breaches that took place while you used the Site and Photobucket Services. Obligations you owed to us and Users of the Site, which by their nature are intended to survive closing or termination, will survive.</span>
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I’m inviting intelligent people, including lawyers, to take up the discussion here. These aren’t obscure issues or ones that affect a tiny minority.
Sorry about three aspects of the second post: 1. Too long, 2. I quoted too much from a single article; should have condensed and paraphrased more often, and 3. I wasn’t aware, or had forgotten, that the color tags are not recognized here. It would have looked a lot better and been easier to read had that been available.
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Correction:
I had assumed that Photobucket expected their users to at least have licensed the work that they post to their accounts. Actually, that’s insufficient. Photobucket insists that the images a user posts belong to the user and the user alone:
From the Photobucket Terms of Use, Privacy & Content section:
By uploading, you are confirming that the Content is yours—no one else’s—and that the uploading and use of your Content does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights or human rights of somebody else.
So Photobucket assumes
- that those 10 billion images all belong exclusively to individual users, and
- each one of those 100 million users are so generous that they just can’t stop themselves from sharing their images on Photobucket, freely handing “worldwide, non-exclusive” copyrights over to Photobucket for nothing.
When you make your Content public, you grant us worldwide, non-exclusive, royalty-free license (with the right to sublicense) to copy, distribute, stream, post publicly display (e.g. post it elsewhere), reproduce and create derivative works from it (meaning things based on it), anywhere, whether in print or any kind of electronic version that exists now or is later developed, for any purpose, including a commercial purpose.
And while you’re at it, let’s hand over image use rights to the millions of Photobucket users at the same time, just so long as they don’t try to make any money off them.
By making your content public, you are also giving other Members on Photobucket the right to copy, distribute, publicly perform, publicly display, reproduce and create derivative works from it via the Site, third party websites or applications (for example, via services allowing Members to order prints of Content or t-shirts and similar items containing Content, and via social media websites), provided such use is not for a commercial purpose.
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At the time Kirsten Kowalski published her article titled “Why I Tearfully Deleted My Pinterest Inspiration Boards” at dkkportraits.com (3 years ago), from which I’ve liberally quoted above, Pinterest’s policy regarding user responsibility of the image content was ostensibly more lenient than that Photobucket today. Pinterest required that the user either 1. be the “sole and exclusive owner of all Member Content,” or 2. “have all rights, licenses, consents and releases that are necessary to grant to Cold Brew Labs” the rights to use that content as stipulated elsewhere in the TOU.
The full section of the Pinterest TOU as quoted by Kirsten in “Why I Tearfully Deleted My Pinterest Inspiration Boards”:
“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 [management company of Pinterest] 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.”
Kirsten was not the only one troubled by this section of the Pinterest Terms of Use (now called Terms of Service). Many have objected to it, and to other parts of the terms.
Pinterest has changed its Terms, which are now called Terms of Service, since Kirsten’s article was published. They’ve great simplified the wording so that the analogue to the section quoted above, which appears as section “a. Posting Content,” now reads only:
Pinterest allows you to post content, including photos, comments, links, and other materials. Anything that you post or otherwise make available on our Products is referred to as “User Content.” You retain all rights in, and are solely responsible for, the User Content you post to Pinterest.
I was unable to find a definition in the Terms of “User Content,” but it presumably means the same as “Member Content” did three years ago. What is meant by the term “solely responsible” is not explicitly described as it was previously, but I think we can presume it still means the same thing.
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I say, in the last post, “ostensibly more lenient” because for practical purposes the second of the two cases — having “all rights, licenses, consents and releases that are necessary to grant to Cold Brew Labs” virtually unrestricted worldwide use — would be redundant. The conditions of the second case probably don’t exist outside instances where the first case applies. In other words, who would have “all rights, licenses, consents and releases that are necessary to grant” such use other than the “sole and exclusive owner” of that content?
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Perhaps the second case cover instances of shared copyright ownership wherein the user has full rights (and is just dying to give them away).
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I am not a lawyer and did not even stay in a Holiday In Express last night – but from your quotes it looks like one gives up all rights to their own images when posting them to PhotoBucket – guess it is good that I dont’ post there and do limited images here – at least here they say my content is my content and if I take my content off WP.com gives up all rights to it
Thom Hartman had a guest on his show this week – the guest had read the TOS for their new FLAT SCREEN TV – and the TV claimed the right to photograph the users in their own homes and record all their conversations and sent it on the the great servers in the sky – so be careful about cuddling up with your honey in front of the TV (sorry a bit off topic – but the taking of our property and privacy is now at warp speed)
Thanks for your research above
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Very interesting discussion, musicdoc and one that needs to be discussed more often, in my opinion.
I don’t use either Pinterest or Photobucket but I do use Flickr which has a similar TOS. Most of the legalize is the same on these types of websites. When (at least on Flickr) they say that they can “copy, distribute, stream, post publicly display” etc. what they mean is that they can resize your picture/photo for use on their website.
Flickr users are constantly complaining of other websites that use their photos without permission or not complying with the terms of the Creative Commons license.
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This is the technical support forum, not the ideas or discussion forum.
Terms of service do not outrank the law, which is the same in all cases.
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Pinterest , Tumblr and dont even get me started on we heart it are the worst for reposting images and not providing credit. Its not just tough on the original artist, what about the people who want to see more of that artists work or learn about the artist themselves.
Luckily google images has a ‘search with image’ option that has made it really helpful to find the original source of certain images which I try to do as often as I can when I find uncredited images on tumblr etc.
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This is the technical support forum, not the ideas or discussion forum.
I would like technical advice on how to prevent Pinterest users from reposting my images, as I mentioned in my previous thread which was unceremoniously closed after a day or two before anything had been resolved.
Interestingly, WordPress.org users have sometimes found a Pinterest-user frustrating “no pin” meta tag in the <head> section of their HTML against their wishes.
Does WordPress.com have ideas and discussion forums?
@spiralightcostume,
I hadn’t mentioned Tumblr in previous post, but today I found an image on Tumblr which had obviously been copied from an image I published first on Songbook. I had constructed the image from multiple images. It is found in a Tumblr search result pool. No credit to the source is given there. You have to click on the username link overlaying the image to reach the user who copied the image and posted it Tumblr, and only there will you find the credit to the source. How many people are going to jump through that hoop when the full size image is available in the pool without going any further?Just as is the case with Pinterest, although thus far to a lesser extent, Tumblr is getting pageview credit, by virtue of having a higher volume of traffic and therefore winning at the Google Images popularity contest, for an image which I published first (after creating it in this instance).
If nothing is done to curb the flow, such image sharing and social networking sites will inevitably control pageview traffic for every image you or I post in a blog. They acquire control of pageview value of the images insidiously, imperceptibly, as a consequence of 1. the indifference to determining whether the images uploaded by users really belong to the users, 2. their huge size and growth, 3. the ease with which images are shared among tens of millions of image sharing and social networking site users, and 4. distancing the image from the source, as described in the Tumblr case above.Pinterest even claims to own such images merely because their users agree as users that they will only upload images which they own, while it’s obvious to any casual observer that this is very often not the case. And what rights does Pinterest assume over the images uploaded by users? From the current Pinterest Terms of Service , under the “2. Content” section (bold added):
<div>b. How Pinterest and other users can use your content</div>
<div></div>
<div>You grant Pinterest and its users a non-exclusive, royalty-free, transferable, sublicensable, worldwide license to use, store, display, reproduce, re-pin, modify, create derivative works, perform, and distribute your User Content on Pinterest solely for the purposes of operating, developing, providing, and using the Pinterest Products. Nothing in these Terms shall restrict other legal rights Pinterest may have to User Content, for example under other licenses. We reserve the right to remove or modify User Content for any reason, including User Content that we believe violates these Terms or our policies.</div>Note that it’s not clear whether the stipulation “on Pinterest solely for the purposes of operating, developing, providing, and using the Pinterest Products” applies only to the right to distribute, or to all of the other granted rights mentioned.
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Correction to previous post:
I said “Pinnterest even claims to own such images…” I meant that they claim “non-exclusive, royalty-free, transferable, sublicensable, worldwide” license to the use, storage, display, modification, creation of derivative works, etc. of images which could only be granted to them, I think, by an exclusive copyright owner, or perhaps a co-owner of copyrights who possesses the unlikely privilege of giving away such license to millions. -
@auxclass,
Nice example of how our privacy rights are increasingly being not just nibbled away but devoured in large chunks, or swallowed whole.Haven’t talked some of you folks since back in July or August re: those crazy editor window modifications.
@dandelionsalad,
I don’t know about Flickr, but, as I mentioned in my first post, Photobucket is openly advertising such images for sale (with, with no apparent copyright information) as framed prints, “canvas wraps,” and holiday cards. Before they introduced holiday cards a couple of days ago they also had unframed prints for sale. The regular price for a framed print is $46.99. -
In the Nov 16, 2014, 12:10 AM post I said,
They [Pinterest, Tumblr, etc.] acquire control of pageview value of the images insidiously, imperceptibly, as a consequence of…
“Imperceptibly” was a poor choice of word. Their acquisition of control of images is not necessarily gradual, nor are the results difficult to detect, but the process by which they do it is indirect, circuitous, as well as cunning, devious.
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To me this looks like a duplicate thread. The other one was closed by Staff here https://en.forums.wordpress.com/topic/can-wordpress-staff-help-me-to-stop-pinterest-users-from-pinning-my-images?replies=25#post-2131895
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If you have issues with Pinterest then please take that up with their Staff. You can report any copyright violations to Pinterest. You use the DMCA complaints take down process to have content under your own copyright removed just as you can in the case of any copyright violation. http://about.pinterest.com/copyright/
If you have issues with Photobucket then take that up with their support Staff. See here http://photobucket.com/copyright
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I’m inviting intelligent people, including lawyers, to take up the discussion here. These aren’t obscure issues or ones that affect a tiny minority.
Lawyers do not provide advice in support forums threads and anyone purporting to provide legal advice by that method ought to be immediately reported to the relevant bar association for their jurisdiction.
This is a technical support forum where we deal only with WordPress.com support issues. Anything other than technical support questions and answers to them is considered to be spam and treated accordingly.
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