A recent phenomenon in the ever-expanding world of social media is the popularity of online scrapbooking websites. These websites allow users to collect their favourite bits and pieces from across the internet in one place. A few examples include Pinterest (www.pinterest.com), Juxtapost (www.juxtapost.com) and We Heart It (www.weheartit.com). Pinterest is currently the largest of these and surpassed 10 million visitors per months faster than any website in history. In this article Pinterest will be used as the primary example to explore the intellectual property issues associated with such websites.
Pinterest allows users to create themed online "pinboards" by "pinning" and organizing images and videos found on the internet. Pinterest has caught the attention of such famous figures as Michelle Obama and Ann Romney, who have both created their own accounts and pinboards in the lead-up to the U.S. presidential election this fall. Pinterest defines itself as a "service that allows you to…organize and share beautiful things you find on the web," though users can also upload their own material. As such, Pinterest is premised on collecting together the images and videos of others.
Pinterest operates by allowing users to press a "Pin It" button in their web browser whenever they see images on the internet they would like to add to their pinboards. For example, users might want to collect images of dream golf courses they would love to play. While viewing the website of a golf course, users can simply press the "Pin It" button and select whatever image on the webpage that the user wants to capture. That image will then be added to the pinboard of the user's choice, along with any comments the user may wish to add. When users view the image on Pinterest they can link back to the website it was taken from by clicking on the photograph. Mobile apps currently available or under development will allow users to do the same thing on their smartphones.
However, the beautiful picture of the 18th hole overlooking the ocean may be protected by copyright. Copyright subsists in original works, including music, art, photographs, films and literary works. Copyright grants the work's owner the exclusive right to make copies of the work, and the owner may take legal action to prevent others from reproducing the work without permission. Further, the name and logo of the golf course may be the subject of trademark protection. Trademarks can be either unregistered or registered, and are indicators of source that distinguish the goods and services of a business from those of its competitors. Trademarks may potentially appear within the material on pinboards, in the user comments attached to the material, or in the title of the pinboard itself. Therefore, copyright and trademark owners should be aware of the possibility of their intellectual property appearing on such websites and the policies available to address unauthorized use.
One of the powerful features of many social networking websites is the ability of content to spread rapidly. With respect to Pinterest, all pinboards are public, making the contents viewable and searchable by anyone. Like many other social media sites, users of Pinterest can "follow" other users. In addition, with a click of the mouse users can "re-pin" any images or videos on Pinterest onto one of their own pinboards. This combination of features creates the ability for content to go "viral," being reproduced on thousands or millions of accounts in a short period of time. This highlights the importance of addressing unauthorized use of intellectual property on such websites promptly.
Copyright owners who discover unauthorized copies of their works on the internet should first determine whether or not the use is objectionable. For example, finding a copy of the 18th hole photograph on Pinterest may be free advertising when on a pinboard titled "Golf Courses I Love," but problematic when on a pinboard titled "Golf Courses I Hate." In some cases, a copyright owner may desire to prevent any unauthorized copies of their work, such as where the image is only available on a paid subscription website. Another potentially undesirable aspect of such websites is that they often allow users to maintain copies of images in their accounts, even after the original source image is removed from the internet.
If the copyright owner determines the reproduction of its work objectionable, the next step is to consider the particular copyright policy of the relevant social media website. Most online scrapbooking websites, including Pinterest, have a copyright policy in place allowing for copyright owners to file a notice requesting the removal of unauthorized copies of their works. Users can file a counter-notice if they feel that the content was removed in error. For U.S.-based websites and companies, such policies are required under the Digital Millennium Copyright Act ("DMCA") in order for the websites to benefit from the DMCA's safe harbour provisions. If the desired result cannot be achieved under the policies of the website, or if there is no policy, direct complaints to the website or the account holder may be required, and in appropriate cases copyright owners may consider enforcing their rights in court.
Trademark protection on social media websites is generally weaker than copyright protection, and a remedy may be harder to obtain in some circumstances. This is primarily because users of social media and scrapbooking websites often do not sell any products or provide any services, and their display of third party trademarks in images or text on their accounts may fall outside of the definition of "use" that is protected under trademark law. Most of the trademark policies of social media websites require that the trademark use be misleading or violate the complainant's trademark rights. As such, trademark holders will have the greatest success in complaints against brand impersonation, use of their marks for a commercial purpose or by a competitor, or use of their marks in connection with counterfeit goods. However, it may be more difficult to prevent use of trademarks in commentary, as part of an account user name or appearing incidentally in images. As with copyright, if the desired result cannot be achieved under the policies of the website, the trademark owner can consider direct complaints to the website or account holder, or potentially legal proceedings.
Given the growing popularity of such websites, businesses may also benefit from setting up their own accounts and profiles on relevant websites as a form of marketing and interaction with customers. While Pinterest's policies state that the site is for personal, non-commercial use, many companies currently operate accounts marketing their products. For example, a company could create an account with a pinboard of recipes that feature the food products sold by the company.
With the ever expanding popularity of social media websites, including online scrapbooking websites, many businesses will benefit from a comprehensive strategy of monitoring and enforcing infringement of their copyright and trademark rights on the internet.
The preceding is intended as a timely update on Canadian intellectual property and technology law. The content is informational only and does not constitute legal or professional advice. To obtain such advice, please communicate with our offices directly.