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Portions of this column were originally written for the May 2012 edition of News Photographer Magazine.

Mark Loundy is a media producer and consultant based in San Jose, California. Full bio.

The opinions in this article are those of the author alone and do not necessarily represent the official views of the National Press Photographers Association.

May 2012, Volume 111
By Mark Loundy

"We would often be sorry if our wishes were gratified."

— Aesop

Remember when scrapbooking was so popular that retail scrapbooking stores started to open in strip malls all over? Since its peak in the last decade, the scrapbooking craze has faded back to its natural background noise level and those stores have largely vanished.

AfterthoughtThe latest incarnation of the fad is the Pinterest website. On Pinterest, members can "pin" images that they see on the Web onto their personal pinboards. They can follow other members and view their boards. The secret sauce to the service's success is in the sharing. And sharing requires a critical mass of users.

A service consisting of, "Hey, look what I found," is, almost by definition, based upon widespread copyright infringement. But Pinterest doesn't have to worry about that. Because of the so-called Safe Harbor provision of the Digital Millennium Copyright Act of 1998 (DMCA,) the company is only required to take down infringing works after they are formally notified about them. The only folks with liability are the members.

NPPA attorney Mickey Osterreicher puts it this way, " As far as publishers' and broadcasters' liability for encouraging viewers to use Pinterest - while they may be protected by the DMCA these are the types of things that copyright case law comes from, so it will not surprise me if a plaintiff decides to include them as defendant(s) in a copyright infringement claim. Whether they will be held liable is up to the courts."

As a way to mollify copyright owners Pinterest has provided HTML code as a way to prevent being pinned. But this can still be a legal issue. "The problem with relying on 'opt out' is that this is not the way copyright works," says attorney Alicia Wagner Calzada, "Google books has a similar 'opt out' policy and I believe that both policies turn copyright on their head. Copyright works by requiring the user to get permission from the copyright holder. The concept of copyright falls apart if you require the copyright holder to opt out of every potential user who had developed an opt out policy."

News organizations that are (rightly) pursuing their users wherever they might be are excitedly adopting Pinterest almost as a member of the family. With a predominantly female user base, Pinterest is an excellent place for newsrooms to engage with women. Newspapers across the country are experimenting with it.

Remember that "critical mass?" If intellectual property owners should decide to legally pursue Pinterest members in the way the recording industry has sued individual downloaders of pirated music, then Pinterest's critical mass could deflate faster than a balloon in a cactus patch.

Newsrooms need to be open to using the "latest thing" as a tool, but they must also be sufficiently flexible and innovative to move on when the fad fades or the law catches up with technology.

The Good
Bullet I wish.

The Bad
Bullet Longtime TGTB&TU guest, the Associated Press for its Dropbox boilerplate legalese designed to separate citizen contributors from their intellectual property.
Bullet Buffalo Healthy Living Magazine for soliciting photographers for an unpaid "job" shooting their magazine covers.
Bullet National Geographic for its all-rights contract.

The Ugly
Bullet Ordinarily, this would rate only a "Bad," but the offender, ProPublica is a news organization that dedicates itself to "Journalism in the Public Interest." Yet, they insist on a Work For Hire contract and will not negotiate changes.

Please let me know of any particularly good, bad or ugly dealings that you have had with clients recently. I will use the client's name, but I won't use your name if you don't want me to. Anonymous submissions will not be considered. Please include contact information for yourself and for the client.

Leftovers
  • A federal judge in Chicago is refusing to let a textbook publisher out of a copyright trial for thousands of alleged infringements. According to a story in Photo District News, photographer Robert Frerck claims that Pearson Education routinely exceeded usage rights and Frerck is asking that Pearson be required to turn over its records so that Frerck can determine the full scope of the infringements. Pearson contends that Frerck cannot sue for infringements that he doesn't know about. The judge didn't buy that argument and Pearson may be forced to cough-up the records.
  • The US Copyright Office proposes to nearly double group registration fees from $35 to $65. The public comment period ended before press time, but you can still read the proposal on the Copyright Office website.