Grossman LLP | In Lawsuit Against Pinterest, Artist Continues a Crusade for Copyright on the Internet
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  • In Lawsuit Against Pinterest, Artist Continues a Crusade for Copyright on the Internet
    This blog has covered many examples of the challenges faced by artists in the internet age, from the potential implications for Etsy when its vendors sell counterfeit or infringing products, to the risk that work by independent artists can be swiped and mass-produced for major retailers, to the debate over artist Richard Prince’s appropriation of Instagram snaps.  A recent lawsuit by photographer Christopher Boffoli seeks to hold Internet phenomenon Pinterest accountable when it fails to remove copyrighted material from its platform.

    Pinterest bills itself as a “visual bookmarking tool” that helps users “discover and save creative ideas” they find online by “pinning” them to virtual bulletin boards.  Boffoli is a fine art and commercial photographer, perhaps best known for his whimsical series “Big Appetites,” featuring tiny people interacting with beautifully-photographed food.  In late 2014, he sued Pinterest in federal court (W.D. Wash. Docket No. 14-cv-1811), alleging that Pinterest users have used his photographs without his permission, and Pinterest has failed to take adequate measures to remove them.  Boffoli has previously sued other Internet giants on similar grounds: in 2012, he sued and later reached a settlement with Twitter; in 2014, he took on and then settled with Google; and that same year, he filed and then voluntarily dismissed claims against image-hosting company Imgur.

    Boffoli’s complaint alleges that his works “were reproduced, derivative works were made from, copies were distributed of, and the photographs were displayed on the Infringing Website, which is hosted on Pinterest’s server.”  This raises the question of how many times each work was infringed (when it’s pinned?  Repinned?  Viewed by another user who “follows” the original pinner or sees the image in his or her “feed”?).  That question, in turn, could become relevant to damage calculations (particularly since federal copyright law allows for statutory damages, see 17 U.S.C. § 504).  The case may also examine issues of whether the presence of Boffoli’s images on Pinterest might be defensible under the fair-use doctrine, which this blog has discussed extensively in the past.

    The litigation is still in its early stages, but in its answer to Boffoli’s complaint, Pinterest has signaled that its defenses to the action may include a fair use defense as well as defenses under a federal statute, the Digital Millennium Copyright Act, 17 U.S.C. § 512 et seq.  Title II of the DMCA provides statutory “safe harbor” provisions that insulate some online “service providers” from financial liability for copyright infringement as long as, among other things, it does not know the material is infringing, does not receive a financial benefit directly attributable to the infringing activity, and, upon notification of the infringement, “responds expeditiously to remove, or disable access to” the material.  See 17 U.S.C. § 512(c).  The statute essentially places the onus on copyright owners to let a service provider know about infringement by sending what is sometimes called a “DMCA take-down” notice, and the statute isn’t specific about how quickly a service provider must act once it receives the notice.

    Pinterest’s website contains a page explaining that, “In accordance with the Digital Millennium Copyright Act of 1998,” “Pinterest will respond expeditiously to claims of copyright infringement committed using the Pinterest website . . . that are reported to Pinterest’s Designated Copyright Agent.”  “Upon receipt of the notice . . . Pinterest will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged material from the Site.”  Pinterest also provides a web form and detailed instructions as to how to file a report regarding a copyrighted work that a user believes has been infringed.  Boffoli’s complaint alleges that he sent Pinterest a report that “complied with all of the Digital Millennium Copyright Act’s notice requirements,” and received no response other than an automated email asking him about Pinterest’s customer service; he also alleges that by the time he filed his complaint (more than three months after providing the notice), the infringing images had not been removed.  As one writer has observed, Pinterest likely considers itself a service provider under the terms of the DMCA; whether Pinterest qualifies for this safe harbor, and whether it complied with the takedown requirement, are issues that likely would be explored if the litigation proceeds.

    Beyond the legal issues, there are economic, publicity, and policy concerns at play in this case. As one commentator pointed out recently, there has been much public discussion of online piracy of music and video content, but “photos are arguably the most-infringed works online.”  Boffoli has complained about the fact that “the consuming public thinks that everything should be free.”  Indeed, Boffoli’s Imgur litigation seems to have sparked backlash and criticism among this segment of internet users, including an incident where, in an apparent attempt at retaliation against Boffoli, an unknown user compiled thousands of Boffoli’s professional and personal images (which were already online and publicly available) and re-posted them to the piracy website Pirate Bay.

    Boffoli told website Petapixel that he wants to inspire “photographers to stand up for their work.”  He says that Pinterest has been the largest single infringer of his work over the past few years.  In recent correspondence, he stated, “From my perspective, visual art has value and it is how I make my living.  I simply don’t see why large media companies, with billion-dollar valuations, should profit from the presence of my work on their sites without permission and compensation… If photographers or companies want to partner with Pinterest as a way to market themselves then that’s up to them.  But visual artists should not have that decision made for them.”  For now, he proceeds with what at times may seem like a lonely crusade to defend photographers’ copyrights in the fast-moving and free-wheeling world of the internet.

    Ed. Note: This article, originally published on July 23, 2015, was edited on July 27, 2015 to make minor clarifications and to incorporate a quote from the artist. 
    ATTORNEY: Kate Lucas
    CATEGORIES: CopyrightFine ArtLegal Developments