Pinterest for Employers

Pinterest for Business

I was recently interviewed for the Society for Human Resource Management article “Pinterest Might Facilitate Copyright Infringement.” Below for your viewing pleasure is the entire text of the email-based interview with Workplace Law Content Manager Allen Smith.

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What special copyright issues arise in using Pinterest and how should employees be trained to comply with copyright laws when they are pinning content on Pinterest in a work-related capacity?

Pinterest raises more or less the same copyright issues as any other website, but it has gotten more media attention than others. In general, no one should ever place any content on the web that he or she does not own or have a license (permission) to place on the web. Employees should be aware of what intellectual property their employer owns, any of which may be posted on the employer’s behalf (in compliance with any other laws and workplace policies, of course), and what intellectual property may be subject to licenses which limit the employer’s (and by extension the employee’s) right to post. Otherwise, content located on the web is generally off-limits; making material public does not abrogate any copyright rights. Exceptions include content that is in the public domain (there are several online databases of public domain works—in general, a work published prior to 1923 will be in the public domain); content that is explicitly licensed for pinning; content that falls under fair use exceptions to copyright; and content that is subject to a Creative Commons license (though be careful with that one, as work-related uses may not qualify for some Creative Commons licenses).

Employees should be trained to look for key phrases in website Terms of Use indicating that it is safe to use content on Pinterest (a handy shortcut: if a site owner who clearly owns or licenses the content has placed a “Pin It!” button on the site, pinning should be fine; Etsy is a good example). In addition, a Pinterest account holder that pins its own content has granted a license to Pinterest, so that the content can be re-pinned by other users. The tricky part can be determining whether content was pinned by the rights owner since Pinterest does not have a corollary to the Twitter Verified Account badge.

Could you provide examples of how employees might use Pinterest for work purposes?

I have seen some companies doing wonderful things with Pinterest, primarily retailers. Random House Books has an account and pins not only its own books (brilliant given that “Books Worth Reading” is one of the default pinboards), but also interesting book- and reading-related images. Home Depot has become very involved in the home decor suggestions boards and re-pins content in addition to posting its own proprietary photos, which of course gets people thinking about ways they could improve their homes using Home Depot products. Service professionals can use Pinterest as well; one of my favorite accounts belongs to a style consultant, Sasha Westin, who uses Pinterest to gather suggested wardrobes for people, such as “Men’s Relaxed Professional,” complete with links for purchasing each item.

If employees are using their personal Pinterest accounts to promote their employer, they should be aware of FTC blogger regulations, which require disclosing that relationship.

How are the copyright issues that arise when using Pinterest similar to copyright challenges employees face with other forms of social media that’s used in their work?

As noted, they are really very much the same. No one should post content on any site that he or she does not own or have a license to use. The difference between posting a link to an article on Facebook and posting it on Pinterest, though, is that on Facebook a thumbnail of any photo accompanying the article appears (which has been pretty well, but not definitively, established as fair use), but on Pinterest the full image appears and is uploaded to the Pinterest servers. Pinterest also has a more visual focus, which encourages people to post infringing material such as the work of photographers or painters.

Is pinning content owned by others any different from a legal standpoint from retweeting content on Twitter, and if so, how?

Yes. When someone posts something to Twitter, one of two things is happening: either it is original content, which that person has granted a license to Twitter to use (and that use includes retweeting by other users), or it is not original content. Content that is not original generally must be paraphrased or be a brief introduction to linked content. Linking does not infringe on copyright, and Twitter’s 140-character limit is short enough that it would be difficult to infringe any Twitter-external content. Pinterest has no such limitations.

Are many employees oblivious to the copyright concerns that may exist in their work-related use of Pinterest and, if so, what kind of training might employers provide?

I can’t speak to employees in particular, but much of the general population has developed an ethic about sharing that is not sensitive to the rights of copyright holders. This ethic extends to personal and professional use of social media, including Pinterest. Employers should ensure that their employees are aware that when it comes to copyright, creation, not possession, is 9/10ths of the law. Employees using Pinterest in a work-related capacity should always consider the source, whether the source owns the copyrighted material, and whether the source has given the employer a right to use the copyrighted material. For employers who may be cost-sensitive, the Copyright Office maintains a series of easy-to-understand Circulars, which explain much of what an average person needs to know about copyright. Circular 1 contains the fundamentals. The Copyright Office, however, does not give information about what to look for in a license.

There are also social media certifications becoming available for employees whose routine duties involve social media; the one I am familiar with, from the National Institute for Social Media, should be coming out this fall and will be accredited. (Disclosure: I am chair of the Industry Advisory Committee for NISM, so I wrote the portions of the exam dealing with legal questions. I do not benefit financially from my relationship with NISM.)

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How Do I Get a Copyright?

Intellectual Property - Copyright

I have had several people ask me recently how they can get a copyright in their works. There is good news: contrary to some rumors, you don’t have to do anything to get a copyright! If your work is copyrightable, copyright exists in that work at the moment of creation. But what kinds of works are copyrightable?

Copyright protects original works of authorship fixed in a tangible medium of expression. This means that if you have created something, it needs to be original to be eligible for copyright protection. Originality in copyright law means that a work has to both be independently created and have a minimum degree of creativity. If it lacks either of these factors, it is not eligible for copyright; courts have held that works like databases are not eligible for copyright protection because they lack the requisite creativity. A work must also be fixed to be eligible for copyright protection. If a particular creative work was not recorded in any way, it is not protected by copyright—legally, it has not yet been created. Merely fixed in memory does not count; the fixation must occur in a tangible medium of expression such that it is possible to reproduce it—this means that 1’s and 0’s on a hard drive do count as fixation, as ephemeral as they may seem at first blush.

So if copyright exists at the moment of creation, what do people mean when they say they “have a copyright” or “want to get a copyright”? In the United States, they are generally referring to copyright registration, the process of entering a creative work into the U.S. Copyright Office’s database of copyrighted works. Registration offers several benefits to copyright holders, including:

  • Establishing a public record of the copyright claim.
  • Allowing copyright holders to file infringement suits in court.
  • Owners of a registration can collect statutory damages and attorneys’ fees in a court action, if the registration is made within three months after publication of a work or prior to an infringement. Otherwise, the owner of the unregistered copyrighted work must prove actual damages in order to collect in court.
  • Registration establishes prima facie evidence (that is, evidence that will be accepted as establishing facts unless the other side can present evidence showing that it is not true) of the validity of the copyright and any facts stated in the registration certificate, if the registration is made within five years of publication.
  • Once a work is registered, the owner of a copyright can record the work with the U.S. Customs and Border Protection Service for protection against importation of infringing copies.

Because of the many benefits of protection, many copyright holders choose to register their copyrighted works. The Copyright Office has different rules and procedures for registration of different types of works, all of which are outlined on the Copyright Office website.

Interested in registering your copyrightable works but unsure how to go about it? The Law Office of Kelcey Patrick-Ferree offers copyright registration training and copyright registration services. Contact me for more detail.