Pinterest: Fair Use of Images, Building Communities, Fan Pages, Copyright

When using Pinterest (and Flickr and YouTube and Facebookand on and on), what copyright, fair use, trademark and other issues weigh on building communities and corporate use of fan pages and social media generally? A hypothetical “Company” has plans for its Pinterest “community”, and in particular, wonders about these situations:

• Using Images of Identifiable People
• Fair Use and Images
• Trademarks: When is a “Fair Use” Argument Strongest?
• Why Attribution and Linking to Original Sources is Important

3 introductory questions:

Question #1: Someone used to be a paid Company sponsor or spokesperson.  They are no longer.  Can the Company continue to post a photo of the old sponsor to Pinterest? Short Answer:If the contract with the sponsor expressly permits it, yes.  Ordinarily, the contract would specify engagement for limited time, and that would prohibit rights to use images beyond the contract period.  But it really depends on what the contract says.

Question #2: Can the Company post a photo of a fan of the Company? Short Answer:Express consent is required, either through a release or the fan’s agreement (whenever the photo is submitted) to terms of service.  Exceptions are discussed below.

Question #3: Can the Company post a photo of a Coca-Cola bottle on its Pinterest page? Short Answer: If the use of the image does not suggest (implicitly or explicitly) endorsement or association, then yes.

Below is discussion of these issues, with “Guidelines” at the end.

Using Images of Identifiable People

General Rule #1: You need permission to use images.  This is true with anyindividuals, but particularly so with celebrities: Without a release orpermission, you potentially violate common law or state law rights of privacy and publicity (e.g. New York and California have robust protections for celebrities ).  See for example, George Clooney’s and Julia Roberts’ legal travails.

Exceptions:

Political figures: You could probably use a picture of President Obama or Governor Romney, under a public domain argument.  Or, more likely, simply since it’s highly unlikely that Obama or Romney would legally take issue with your doing so (but: Artechnica in July reported on a DMCA takedown notice YouTube received in connection with a Romney campaign ad showing Obama singing).  But:Even that exception will not apply if your use suggests the candidates’endorsement of your products, services or advocacy message.   This exception also would not apply if you don’t have the permission of the photographer or image owner (e.g. AP for photos).  Famous example: Shepherd Fairey lawsuit with Obama “Hope” image, which was defended under fair use.

Fair use: For example you use an image of Lebron James as part of news reporting, criticism, commentary, parody, satire, etc.  Fair use isalso why use of images of political figures is less concerning than celebrities: Political figures are more traditionally subjects of “news reporting” under fair use.

Non-identifiable people: For example, images of crowd scenes from sporting events or concerts, street pictures from cities, or any images where individuals cannot be easily identified or, more to the point, identifiable individuals are not really the subject of the image.

Contract: If you have a contract with a spokesperson or other a celebrity for use of their photo, then the answer depends on the terms of the contract.  An example: You can always have a contract agreement allowing you to use someone’s photo (a “release”), say for example a celebrity endorser for a product.  But the question comes up, what happens when the sponsorship or endorsement period ends?  You might think that if the release is for a fixed period, use of the celebrity’s photo or likeness is also for the same period.  But does this mean you can’t even refer to the photo and say, “So and so used to endorse our product, and you should too”?  There’s no reason you couldn’t provide for that use under the contract, but without expressly doing so in the contract you likely wouldn’t be able to do so.