Once again we welcome my good friend John Bermingham to the Grove. He and I were discussing the rise of Pinterest and the concerns about posting images to the boards. He, as tireless champion of the arts, jumped right in with another great introduction to the issue of fair use and Pinterest.
By John A. Bermingham, Jr. Esq.
Growing up our mothers always told us it was nicer to share with others. So how come when we get into the adult world we have to worry about whether sharing something is legally permissible? With the rise of the internet we are brought closer together with others and we have the ability to find and share information with the click of a mouse. Nevertheless, it would only be a matter of time until lawyers got involved and for courts to begin ruling on what we can post and share on websites. Pinterest®, founded in 2009, allows users to collect and post findings from the internet or “pin” them where users can repost and re-share. The website has virtual scrapbooks that users create and maintain with articles and pictures that have been created by others. The issue for lawyers and the courts now becomes whether this is legal or an infringement of intellectual property.[i]
Intellectual property (IP) can be an “idea, an improvement, or an emotion one can touch, see, hear, and feel.”[ii] Depending on what the intellectual property is, there are legal protections the originator can file for which will stop others from using their IP for various uses. The legal protections for IP can be a patent, trademark, trade secrets, and copyrights.
Just last week, Samsung® had to pay $1.05 billion dollars in damages for patent infringements to Apple® Computers as awarded by a jury for infringement of “Apple® patents with a wave of older devices running Google's Android operating system.”[iii]
Moreover, Napster®, a music sharing website, was shut down years ago for copyright infringement by allowing users to share music that artists had legally protected under copyrights. Copyrights mean one cannot legally reproduce the literary work without the written consent of the creator[iv]. The law can be confusing when all someone might want to do is share.
Pinterest® and other websites are going through the same legal scrutiny that Napster® went through years ago for copyright infringement; specifically, when users post things in their scrapbook on Pinterest® that are legally protected by the original creator.
However, in the law, as in life, there are exceptions to the rule. The “Fair Use” is an exception to a copyrighted work, which means one, other than the originator, may reproduce the copyrighted work for certain limited purposes without any legal liability. The United States Copyright Office defines “Fair Use” as for “various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research.” Factors to be considered in whether something is fair use are the following:
1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work.[v]
Therefore, when a court looks at whether something can be reproduced or “pinned” under “Fair Use” it will not look at how many words were reproduced; but it will look at what the purpose is when reproducing it. Additionally, the court will look at what is being copyrighted by the originator, how much of the original is being reproduced and whether the reproducer is making any sort of profit or limiting the originator’s potential capability to profit him/herself.[vi]
As tedious as it may be, it is always wise to read the “terms and conditions” on Pinterest® or any social media website when sharing potential copyrighted material. Pinterest® states under its “term and conditions” that the users who share something that violates IP laws will indemnify Pinterest for any losses it incurs[vii]. This means that if Pinterest® is sued, loses their case for copyright infringement, and has to pay money damages, the user will be responsible to reimburse Pinterest®.
Most users of Pinterest® use the website to share ideas they find on the web and articles or recipes they would like to recommend to others. If one decides to share something that is not one’s own creation and that something is copyrighted, that user must know positively that sharing this creation falls under the “Fair Use” exception to IP use to avoid liability; otherwise one should consult an attorney. Although the intention may be to share something exciting with friends, if the person does not own it, lawsuits may follow. The law promotes creativity and those who create an original piece of work have legal remedies against those who reproduce without exception or without permission. While our mothers have told us sharing is good, the law may look at it differently and consider it an infringement on another’s rights.
[i] Poletti, Therese (2012). Is Pinterest the Next Napster? The Wall Street Journal: U.S. Edition Home, Technology. Retrieved from http://online.wsj.com/article/SB10001424052702304450004577279632967289676.html
[ii] United States Patent and Trademark Office (USPTO) (2012) What is intellectual property? USPTO Museum. Retrieved from http://www.uspto.gov/web/offices/ac/ahrpa/opa/museum/1intell.htm
[iii] Elmer-DeWitt, Philip (2012). Apple targets the Samsung Galaxy S III and Galaxy Note. CNN Money. Retrieved from http://tech.fortune.cnn.com/2012/09/01/apple-targets-the-samsung-galaxy-s-iii-and-galaxy-note/
[vii] Poletti, Therese (2012). Is Pinterest the Next Napster? The Wall Street Journal: U.S. Edition Home, Technology. Retrieved from http://online.wsj.com/article/SB10001424052702304450004577279632967289676.html
John A. Bermingham, Jr. Esq. is a licensed attorney in the State of New Jersey. He is admitted to practice in the Supreme Court of New Jersey and all other state courts of New Jersey and is admitted to the District Court for the District of New Jersey. He is a Member of the American Bar Association and the New Jersey State Bar Association.
John received his Bachelor of Science in Justice Studies from Arizona State University in 2000
and obtained his Juris Doctor from the Catholic University of America in 2004. Currently, he is working on his Masters in Business Administration with a Concentration in Criminal Justice from Saint Leo University and needs two more classes, graduating in 2013.
John works for Johnson & Johnson as the Director of Pharmacovigilance and Alliance Management where he drafts and negotiates contracts specializing in international law and U.S. federal regulations. He is also an adjunct professor at Centenary College, Saint Leo University, and Kaplan University where he teaches business law, ethics, and may other legal courses.
Additionally, John Bermingham has his own law practice where he represents several individual entertainers and professionals regarding contractual agreements and representations as an agent in the entertainment industry.
John is an expert, specializing in contractual matters as it pertains to business agreements, agency agreements, articles of incorporation, asset transfer agreements, buy-sell agreements, sales contracts, joint ventures, various types of leases, confidentiality agreements, non-disclosure agreements, and other types of contracts.
Mr. Bermingham has represented clients ranging from entertainers such as rock bands, actors, and authors, to corporations, partnerships, sole proprietors, and limited liability companies. Recently, Mr. Bermingham, attorney for rock band Palisades, led the negotiation and signing of a multi-record deal with Rise Records.
Other areas of law practice include criminal law, trusts and estates, and health law.
Additionally, John is a motivational speaker as a victim’s rights advocate and volunteers his time as Legal Director for the non-profit International Writers Guild. He is on the Board of Trustees and is the Agent of Law for the non-profit Proprietary House Association.
John is married to Laura Bermingham where they live in Port Monmouth, New Jersey with their dogs, Bode and Benji and cat, Kitty.