Pinterest, Image Sharing Websites and the Law (5 December 2012)

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The shortened URL for this document is: http://jiscleg.al/Pinterest

1. Introduction
2. Copyright
3. Privacy/e-Safety
4. Conclusion
5. Want to Know More?

1.     Introduction

What’s in this guidance?

This guidance is intended for staff in colleges and universities considering using image sharing social networks such as Pinterest in teaching and learning.  In this guide you will find information regarding copyright and other key legal considerations in using image sharing social networks in an FE and HE context. 

What is Pinterest?

Pinterest is an image-sharing social networking website.  Pinterest describes itself as a virtual pinboard to organise and share the ‘things you love’.  The site allows individuals to set up an online profile where they can post personal information, upload photographs, pin images sourced from other websites and organise the material in virtual pinboards which are available publicly. 

How can image-sharing websites like Pinterest be used in teaching and learning?

Using an image sharing website students and staff can post images and, in the case of Pinterest, can pin images from other websites which can be accessed and shared as an on-line resource as part of teaching and learning. 

2.      Copyright

What are the copyright issues?

The nature of the Pinterest website, which encourages the pinning of images from other websites and re-pinning images pinned by other users, brings the issue of copyright into sharp focus.  This activity is problematic as you are only entitled to publish images on a website where you are either the copyright owner of the image or have permission or a licence from the copyright holder to do so or where copyright in the image has expired.

2.1 Images Created and Posted by Staff and Students

Do image sharing social networks assert ownership over images posted by staff and students?

With respect to the issue of copyright ownership and social networks contrary to what some users may believe most social networks do not assert ownership in content posted by their users.  However, the extent of the licence granted by users to the social network to reuse their content varies between different providers.

Pinterest does not claim ownership in content posted by its users on Pinterest.  Users of Pinterest retain copyright in content they post to Pinterest.  This means that where students post photographs they have created to Pinterest ownership of copyright in such images will normally remain with the students.  Conversely images created by college or university staff in the course of employment and posted to Pinterest will be owned by the institution unless agreed otherwise for example in a contract of employment. To avoid copyright infringement staff and students should only post images in Pinterest which are out of copyright or which they own or have permission or a licence from the rightsholder to post. 

Whilst there is no assertion by Pinterest of copyright ownership over content a user posts to Pinterest, by using the service a user grants Pinterest and its users a non-exclusive, royalty-free, transferable, sub-licensable, worldwide licence to use, store, display, reproduce, re-pin, modify, create derivative works, perform and distribute the user’s content on Pinterest for the purposes of operating, developing, providing and using the Pinterest products.

The licence in effect enables other users to search for, see, use and/or re-pin any user content made available on Pinterest.  By default pinboards created in Pinterest are publicly available.  Users can elect to create secret boards which are only visible to participants invited by the board’s creator.  However, any participant in a secret board is entitled to re-pin images to other publicly available boards.

In common with Pinterest (and contrary to what some users may believe) Facebook does not claim copyright ownership in content posted by its users on Facebook.  Section 2 of Facebook’s terms and conditions states that users will own all of the content and information they post on Facebook.  However, in relation to content like photographs in which there are intellectual property rights while Facebook does not claim copyright ownership it does require that users grant Facebook a very broad licence to use the intellectual property (IP) content (section 2(1)).  There are no restrictions specified as to how the IP content can be used.  The licence does not limit use of photographs or other IP content to what is necessary to provide the user with the Facebook service therefore Facebook feasibly could use a photograph posted by a user in its marketing campaigns or sell the image to a third party.  The licence to use the IP content ends when a user deletes the content or their account.  However, this is not the case if the content has been shared with others and they have not deleted it. 

With regard to Flickr an analysis of the Yahoo terms of service reveals that Yahoo does not claim ownership in any images posted by its users and provides a mechanism in section 23 thereof for users to report any infringement of their intellectual property rights on the Yahoo services (which includes Flickr).  In section 8(b) of the terms of service with respect to any photos or other graphics a user elects to post for inclusion in publicly accessible areas of the services ‘the user grants Yahoo! a world-wide, royalty free and non-exclusive licence to reproduce, modify, adapt and publish such Content on the Services solely for the purpose of displaying, distributing and promoting the specific Yahoo! Group to which such Content was submitted, or, in the case of photos and graphics, solely for the purpose for which such photo or graphic was submitted to the Services’.  The scope of the licence granted to Yahoo to reuse any photo submitted to Flickr is therefore much more limited than that required by Facebook from its users. 

What restrictions can an institution, staff or students impose on users of content they post to image sharing websites?

In selecting an appropriate website for sharing images an institution may want to consider the licence they want to grant others to use photographs they post.  For example, when uploading photographs to Flickr the default licence is ‘all rights reserved’ but users can opt for an alternative licence, such as the Creative Commons licences.

However, not all image sharing websites allow users to choose the licence under which they control use of their own images (such as allowing licensing under an open licence like Creative Commons).  Similarly, not all image sharing websites will let users mark their images ‘All rights reserved’ or add a copyright statement.  Some sites may include a statement "All images on this site are copyright of the individual photographers" on their 'About Us' page or have no clear statements at all.  While copyright is automatic and does not need to be asserted many users who find images will assume they are automatically entitled to copy them because they are freely available on the web. A copyright statement may inform third parties, and deter them from using your images without obtaining permission.

Authors of copyright images have a moral right to be identified as such but that right needs to be asserted by giving notice (usually in writing) to those seeking to use or exploit the image.  Although the expectation in Pinterest is that images will be attributed, the ease with which users in Pinterest can re-pin images can result in attribution of images to their original source being lost and staff or students not being credited as the creators of their photographs. For further information on moral rights refer to JISC Legal’s paper Moral Rights and OERs – Essentials.

2.2 Third Party Images

Can students or staff pin images they have found on the internet in Pinterest or share such images on other social networks?

To avoid copyright infringement staff and students should only pin images in Pinterest which are out of copyright or which they own or have permission or a licence from the rightsholder to pin.  Pinning an image involves copying and making a copyright work available to the public both of which are acts restricted to the copyright owner by virtue of the Copyright, Designs and Patents Act 1988 (CDPA).

There are no applicable copyright exceptions which would apply to pinning an image on a publicly accessible website.  ‘Fair use’ often quoted as a defence to copyright infringement where copyright works are shared for non-commercial purposes is a US concept which does not apply in the UK.  None of the more limited copyright exceptions available in the UK regime are likely to apply.  Fair dealing for the purposes of criticism and review (s 36 CDPA) for example is unlikely to apply to pinning an image in its entirety to a publicly accessible virtual pinboard.

The foregoing guidance also applies to copying third party images in other social networks.

Where does responsibility lie for copyright clearance?

The responsibility for copyright clearance of any image posted to Pinterest remains with the user.  The terms and conditions and acceptable use policy provide that a user agrees that any content they post will not infringe any third party’s intellectual property rights.  Users must not post any information or content they do not have the right to make available under law or contractual relationship.

To avoid copyright infringement it is advisable only to pin items that you own or have permission or a licence to pin.

Compared with pinning a copyright-infringing image to a private group in Flickr for example, pinning an image which is copyright infringing in Pinterest is likely to be a higher risk activity due to the fact that Pinterest boards are generally public and other users can re-pin images that staff or students pin resulting in further dissemination of the infringing image.  An infringing image pinned in a secret board on Pinterest can be re-pinned by any participant and thereafter disseminated freely by any Pinterest user.

There are images available on the internet where the rightsholders grant a licence to use the images which would allow pinning in Pinterest.  For example, there are Creative Commons licensed images available which may be used provided the original author is credited in compliance with the terms of the licence. 

When choosing images to share it is worth examining the ‘Terms of Service’ of websites to determine whether permission to use the images is granted by the site itself.  Twitpic (the photo-sharing function of Twitter) provides that all content uploaded is copyright of its respective owner.  The owner retains full rights to distribute their own work without prior consent from Twitpic, and it is not acceptable to copy or save another user’s content from Twitpic and upload to other sites for redistribution and dissemination.  However, users of Twitpic can obtain a non-exclusive licence to use photos shared on the site with prior permission from Twitpic and provided that credit is attributed to Twitpic as the source.

Some websites have a ‘pin it’ tool which allow a user to pin an item to Pinterest.  Ostensibly this constitutes permission to pin an image to Pinterest and the image is attributed to the source.  However caution should still be exercised in pinning images as there could be copyright infringement if the owner of the website does not have the authority to allow users to share the relevant images.  For example, it is unlikely that college student A has the authority to display Disney images on his personal web pages and allow others to pin the images in Pinterest.

Yahoo-owned Flickr is an example of a website which has recently added Pin It buttons to the sharing options available on the photo sharing platform.  Flickr assures that all pinned images will be properly attributed, regardless of where they are pinned from.  Where Flickr users do not want their images pinned Flickr also has an opt out tool code for contributors to prevent their images being shared in Pinterest.

Where can I find copyright cleared images?

Our sister service JISC Digital Media has guidance on finding copyright cleared images for use in education.  The Creative Commons website (http://creativecommons.org/) has a tool for finding CC-licensed works.  Two collections of digitised images, The Royal College of Art Record of Student Work and The Royal College of Art Collection, are available on a non-commercial basis for the purposes of learning, teaching and research through a new digitisation project accessible through the Visual Arts Data Service (VADS).  The National Portrait Gallery has also made over fifty thousand images available for use via a Creative Commons licence (http://jiscleg.al/imagesforeducation).

Can staff or students re-pin images made available on other Pinterest users’ boards?

Caution should be taken when re-pinning images from other users’ pinboards in Pinterest.  While the functionality of Pinterest enables a Pinterest user to search for, see, use and/or re-pin any user content made available on Pinterest by others and Pinterest users post content on the understanding it can be used in this way some time should be spent on determining the provenance of the content to be re-pinned.  Has the content been uploaded to Pinterest by the rightsholder or with the rightsholder’s permission?  If the user who initially pinned the image does not have the rights to make the image available on Pinterest then re-pinning it could be further infringement.  For example, stills from commercial films uploaded by an individual that is not associated with the rightsholder are likely to have been copied without permission and as a result could be infringing copyright. 

2.3 Liability

There is the potential for copyright infringement and resulting liability if staff and students upload, pin or re-pin other people’s images in Pinterest or other image-sharing websites .  The extent to which a college or university may be liable for copyright infringement and what measures they can take to limit their liability is outlined in this section. 

Does attributing an image to its author ensure that there is no copyright infringement?

There is a misconception that provided an image posted on a social network is attributed to its original author (with or without a link to the original source), there will be no infringement of copyright.  Unless a copyright owner has granted permission for their image to be used through an open licence or otherwise, staff and students should be made aware that attributing an image to its original author is not sufficient to avoid copyright infringement (though such attribution may be a condition of the permission for use). 

Who will be liable for copyright infringement where a college or university encourages its learners to use an image sharing website as part of their learning?

The essence of ‘Web 2.0’ is the ability of a user to publish and edit content.  Use of social networks like Pinterest is usually on a non-controlled basis i.e. no editorial control is carried out before content is published.  As such the ‘notice and take down’ principle established and reaffirmed in UK law will apply.  Liability can arise for the posting of copyright infringing content.  If the institution could not reasonably be expected to be aware of the infringing content as it is being published and acts promptly to remove infringing content, then it is unlikely to be held liable.  This assumes that the institution has a culture of compliance with the law of copyright and engages in awareness raising and training with regard to the law of copyright for its staff and students.

Should an institution operate a ‘Notice and Takedown Procedure’ with respect to content shared on image sharing social networks?

It is important that an institution acts promptly when is becomes aware of a potential legal liability online.  It is important that those encouraging the use of image sharing websites in the learning environment, in particular those exercising control over or mediating content have a clear mechanism to alert the institution when a question of liability occurs.  For further information, refer to the JISC Legal guidance on Hosting Liability.  The institution should remove the suspect content straight away pending an investigation.

It should be noted that it may not be possible for the institution to remove infringing content.  If the image sharing website has editorial control then the institution may need to notify the social network in order to have content removed.

Institutions may want to reinforce to staff and students the (Acceptable Use Policy) message that copyright infringement (including via image sharing websites) must not be done in connection with the institution’s activities, and users must remove infringing material from any account so linked immediately upon request. 

Scenario

I am a history lecturer and I have found a great website called ‘Pinterest’ where people can organise and share the things they love.  The site covers a whole range of subjects and even has a mobile app for posting content.  Encouraging my students to browse this website and “pin” images or videos of what they love about history would be a great way of getting them to engage with the subject.  Do I need to worry about copyright?

Yes, you need to be concerned about copyright.  Pinterest takes no responsibility in their terms and conditions for copyright infringement and the onus is on the user to ensure that they either own the image pinned or have permission or a licence to use the image which extends to making it available on a publicly accessible website.  To avoid copyright infringement students should not upload anything unless they either own it, or have permission, or have a licence to do it.

3.     Privacy/e-Safety

While copyright is probably the most prominent legal issue with respect to using image sharing social networks as educational tools it is not the only legal issue to consider.  Most of the guidance in JISC Legal’s paper Facing Up to Facebook: A Guide for FE and HE will be relevant to the use of image sharing social networks by students and staff.

3.1 What are the privacy/e-safety implications of using image sharing websites in teaching and learning?

Learning providers have a legal duty of care to their staff and students in their use of IT systems (in particular internet and email) to safeguard them from harm which is reasonably foreseeable.  It is best practice therefore to carry out a risk assessment prior to adopting social networking sites as learning tools to identify any foreseeable harm and determine what measures can be taken to prevent it.  

With respect to a learning provider encouraging students to run their own Flickr accounts to post photographs which can then be accessed and shared as an online resource it will be important that the provider makes students aware of the risks associated with using social networking sites and making their personal information available online.  Where students are encouraged to make their photo-stream public to enable sharing it will be important to stress to students, that the photographs are public and, unless privacy settings are altered access is not restricted to staff and students.

Students should also be informed that the normal position in Flickr is that any Flickr member can comment on images posted on Flickr unless the user specifies through privacy settings that they do not want them to.  Comments will not be limited to those made by the learning provider’s staff or students and there is a risk (which students should be made aware of) that they could be exposed to inappropriate or abusive comments from strangers.

The learning provider may decide that it is more appropriate to set up a private ‘Group’ for sharing photographs, which only those individuals who are invited by the administrator will have access and where Group members only will be able to post comments.  This would facilitate peer review but may not enable interaction between alumni and current students which may be an objective of the activity.

Further information about Flickr Groups is available on the Flickr website.

A university or college is likely to have its own policies regarding acceptable use of its IT systems and on e-safety.  Where these exist relevant policies should be brought to the attention of staff and students in order to ensure that they are aware of what is considered appropriate, for example in posting comments regarding other students’ photographs shared on Flickr.  

The default position in Pinterest is that pinboards are publicly available.  Students and staff should be made aware that information they post to Pinterest will be publicly available and therefore it would not be a suitable tool for posting confidential or sensitive information.  While it is possible to create secret boards in Pinterest any participant in a secret board can share the content of the board with others.

The public availability of content posted to Pinterest also has implications if a student or staff member decides to terminate an account in future.  Users need to be made aware that on terminating their account with Pinterest, Pinterest may use their content for a commercially reasonable time for back up, archival or audit purposes but more significantly Pinterest and its users may retain and use any of a user’s content that other users have stored or shared through Pinterest.

3.2 Can account settings in Pinterest be changed to restrict access to user content?

In creating an account a user can select how much personal information they include in their profile.  Other users will be able to see the account holder’s name and any other personal information they include in their profile.

With respect to access to the content (images) posted by a user to boards they create in Pinterest it is possible to create secret boards to which only participants invited by the board’s creator can pin content.  However, it is possible for any participant in a secret board to re-pin images pinned in a secret board to another board.  The secret board will remain secret but re-pinning makes the image itself public.  It is important to note that the creator of a secret board can make the board visible to everyone at any time without permission from other collaborators.

There are options in account settings to disable the linking of a Pinterest account to other social network services (SNS) such as Twitter or Facebook.  If a user links Pinterest with his/her other SNS accounts information in the Pinterest account will be shared with the other SNS. 

It is possible to import a friends list from Facebook to Pinterest.  Staff and students should consider privacy before doing so.

3.3 What are the legal implications of staff posting images of students on social networks? 

Where images of identifiable individuals are involved data protection is likely to be relevant.  The Data Protection Act 1998 allows individuals to control how information about them is being used.  By copying and disseminating images of identifiable living individuals the college or university is processing their personal data.  Any processing must be done fairly and in line with the data protection principles.  Consent is likely to be required from the individuals photographed to process their personal information, using a signed consent form.  Further information on using images is available in JISC Legal’s paper Using Child Images in OER.   The paper considers the legal issues in relation to the taking of or possession of images of children (under 18s) for use in an Open Education Resource.  However much of the guidance will still be relevant for use of images in general.

As previously stated colleges and universities have both common law (such as duty of care) and statutory duties to safeguard the welfare of all students including when making use of ICT.  Where a college wants to include images of students on a sharing social networking website the college has a duty of care to ensure that the environment is “safe” for learners and staff and a higher standard of care is expected when young learners are involved.  The college should perform an appropriate risk assessment which includes whether it is appropriate in the particular circumstances.  The college should ensure that any use of images is in line with all existing relevant policies e.g. e-Safety, Disciplinary, Acceptable Use and Child Protection policies.

Scenario

A college tutor encourages photography students to establish their own Flickr accounts to post images which can then be accessed and shared as an online resource providing the students choose to make their photo stream public.  This allows the photographs to be subjected to comparison and peer review and allows interaction between college alumni and current students.  Is this problematic?

Ownership of copyright in photographs created by photography students will reside with the students but they should be made aware of the limited licence they grant Yahoo to use the images.  Students should be made aware that when uploading photographs to Flickr the default licence is ‘all rights reserved’ but that they can opt for an alternative licence such as Creative Commons.  Students should only post images to Flickr which they have created themselves or which they have permission of the copyright owner to post to avoid infringement of copyright.   In order to comply with its legal duty of care to staff and students to safeguard them from harm which is reasonably foreseeable the college should carry out a risk assessment prior to using Flickr as a learning tool to determine appropriateness, to identify potential harm, and to determine what measures can be taken to prevent it.   The college should make students aware of the risks associated with using Flickr and making their personal information available online.  Where students are encouraged to make their photo-stream public to enable sharing it will be important to stress to students that the photographs are public and, unless privacy settings are altered access, including the ability to comment on photos, is not restricted to staff and students.  The tutor may decide it is more appropriate to set up a private group for sharing and commenting on photographs. This would facilitate peer review but may not enable interaction between alumni and current students.   Where policies regarding acceptable use of the college IT systems and on e-safety exist these should be brought to the attention of staff and students in order that they are aware of what is considered appropriate, for example in posting comments regarding other students’ photographs shared on Flickr.

4.     Conclusion

Pinterest and other image sharing social networks make sharing content and collaboration between staff and students easier. However, this brings with it a corresponding increase in the risk of copyright infringement, breach of data protection law, and it also raises issues of liability.

It is important to remember that users are already required to use any new technology appropriately, including Pinterest. College and university network users will be required to comply with the JANET Acceptable Use Policy.  Any breaches of the policy should be followed up according to the procedures outlined in the ‘Acceptable Use Policy’ of the institution. We have produced the following top tips for compliance when using photo sharing social networks.

JISC Legal’s Top Tips for using photo sharing social networks

  • Raise awareness among staff and learners about the risks of copyright infringement
  • Remind staff and students they should only post images to image sharing websites which they have created themselves or which they have permission of the copyright owner to post to avoid infringement of copyright.

  • Implement a notice and take down procedure

  • Carry out a risk assessment prior to using social networking sites as learning tools to identify any foreseeable harm and determine what measures can be taken to prevent it

5.     Want to Know More?

JISC Legal’s paper Facing Up to Facebook: A Guide for FE and HE

JISC Legal’s paper Moral Rights and OERs – Essentials

JISC Legal’s paper Using Child Images in OER

JISC Digital Media Guide to Photo Sharing Sites http://www.jiscdigitalmedia.ac.uk/stillimages/advice/photo-sharing-sites

http://pinterest.com/ provides information on the Pinterest service and links to the Pinterest terms of service and privacy policy 

http://creativecommons.org/ provides more information on the ‘open’ Creative Commons licences and their implications

Facebook’s terms and conditions

Yahoo terms of service

Twitpic terms of service 

Please Note: Terms and conditions of service referred to in this paper have been reviewed as at 12th December 2012.  Please note that service providers change their terms and conditions from time and time.

Posted on 05/12/2012