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Copyrighted Photographs on Pinterest.com

While this blog is directed to concerns over Pinterest, a short primer on copyright law may be in order. Copyright protection is provided for original works of authorship. A copyright is formed immediately upon creation of the original work. Nothing else needs to be done and there is no such thing as a "poor man's copyright" i.e. mailing the work to yourself. However, there are advantages to registering your work with the US Copyright Office (http://www.copyright.gov). To being with it is cheap and simple. You can generally do it yourself and the fee is only $35. Moreover, multiple photos can be submitted at the same time with a single fee. Thus, a photographer can file a batch of files every few months. Most importantly, if a work is registered, the holder of copyright can be awarded statutory and attorney fees. In other words, the artist does not need to prove damages, instead they are assumed and tens of thousands of dollars may be awarded without proving any losses. If a work is not registered, the artist can still sue, but can only recover actual damages such as lost profits and profits of the infringing party, both of which are difficult to show. Finally, it is important to know that in order to obtain statutory damages, the filing for the registration must be made 3 months before publication or before the infringement. If this window is missed, it can be rectified for subsequent infringements by a future filing, but statutory damages for prior acts will still not be available.

Back to the story... The website Pinterest (http://www.pinterest.com) has blossomed as of late and with it controversies related to copyrighted works with particular focus on photographs.

The problem, in short, is that users of Pinterest are pinning the works of others onto the Pinterest site. While some may ask why photographers would not want the added exposure, there are several concerns. The first is that the pinned works do not include back links to the original authors and in fact there has been some evidence that web searches for these works actually lead to Pinterest. Second, Pinterest includes language that any works posted thereon become the sole property of Pinterest and Pinterest's rights are nonrevokable. This is particularly hard to swallow since Pinterest does not allow user's to post their own works and therefore can only be posting, and asserting rights to, works which must be owned by a third party. Third, there have been stories that Pinterest is allowing other websites to freely use these posted works.

There are, however, remedies available to artists regardless of whether or not they have registered their work. These remedies come in at least three basic forms. 1) File a lawsuit 2) Utilize the Digital Millennium Copyright Act (DMCA) or 3) Take actions to prevent the infringement.

Filing a lawsuit: Generally very expensive and unless the work has been registered, filing a lawsuit is probably not the most advisable route. Additionally, filing a suit is very time consuming and only justifiable when the infinger is willfully infringing and will not pay a license fee.

The DMCA: The DCMA was enacted in 1998 and includes specific provisions related to internet content. Specifically, it creates a safe harbor for ISPs so that they are not sued for infringement due to the sites they serve. However, should a copyright holder assert to the ISP that a work is being infringed, it is the ISP's duty to prevent further infringement and should either shut down the site or ensure that the site removes the infringing post. However, the accused can rebut the infringement characterization and if that occurs, the copyright holder has 14 days to file suit. That being said, it is free to make the assertion and can be very effective. With respect to Pinterest, DCMA actions can be made directly to Pinterest (http://pinterest.com/about/copyright) or to Amazon who is the ISP for Pinterest (http://aws-portal.amazon.com/gp/aws/html-forms-controller/contactus/AWSAbuse).

Take Actions to Prevent Infringement: There are actions that the copyright holder can take to either stop continued infringement or to prevent it in the first place. With respect to current infringement, it will often suffice to simply contact the poster and inform them that a copyright is being infringed. Often the offender does not realize that the work is copyrighted and certainly is not looking for trouble. Once informed of the situation, and if need be the repercussions of continued infringement, the work will typically be removed from the site. To prevent future infringement, a photographer may consider putting watermarks on any publicly displayed photos to stop others from wanting to re-post the photograph. Also, photographers may want to include the "circle C" © to indicate to others that the photographer considers this a copyrighted and non-sharable work. While the circle C does not provide any legal significance, it will at least deter some people from copying the image. These actions are simple, free and usually fast acting.

The above should be considered only an overview of the problems and remedies associated with copyrights in general and specifically with web based usage of copyrighted works. Every case is unique and therefore you may want to consider contacting an attorney before you undertake a course of action.

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