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COPYRIGHT INFRINGEMENT AND THE SECOND GENERATION OF SOCIAL MEDIA WEBSITES: WHY
PINTEREST USERS SHOULD BE PROTECTED FROM COPYRIGHT INFRINGEMENT BY THE FAIR USE
DEFENSE.

©2012, Craig C. Carpenter1

INTRODUCTION

Social media has forever changed the way people share information. This online phenomenon has

grown from a campus experiment to the fourth most popular online activity.2 The social media revolution has

so far been led by industry juggernauts: Facebook and Twitter. With over 750 million users combined, these

two websites quickly rose as the leaders of the first social media generation.3 Originally, these leading social

media companies showcased user-generated content that was typically created by the user; social media was

a way to express ones thoughts and learn more about other people.

Recently, however, these early social media platforms have evolved into a new generation of online

information-sharing. The focus of social media is shifting from user-created content to user-found content.

This trend is shared by new versions of the original social media powerhouses and recent social media start-

ups. For example, both Twitter and Facebook have made it easier for users to integrate photos and videos

from the internet into their profiles. Additionally, new “second generation” social media platforms have

expanded on this trend by focusing almost entirely on found content—especially pictures. These “second

generation” social media platforms entered the industry after Facebook and Twitter became viral and hope to

build on the popularity of the industry while distinguishing themselves from the two industry giants. One of

the original “second generation” social media platforms is Tumblr. Tumblr is a blogging platform that allows

users to share text, photos, links, videos, and other content. Tumblr users can share information from

websites or other Tumblr profiles and follow their friend’s Tumblr profiles. Tumblr mixes original content, such

as comments and pictures from the actual Tumblr user, with found content, like photos and videos from the

1
J.D., Southern Methodist University Dedman School of Law.
2
JOHN G. BROWNING, THE LAWYER’S GUIDE TO SOCIAL NETWORKING 12 (2010).
3
Id.

Electronic copy available at: http://ssrn.com/abstract=2131483

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internet, but focuses on the latter. Tumblr shifted the trend in social media websites from primarily original

content to primarily found content by making it easy and quick to share things found online.

The most recent product of this social media evolution is Pinterest. Pinterest debuted in late

November 2009 and since then has exploded in its number of unique visitors per month, most of whom are

female.4 Pinterest has become an increasingly popular way for people to share interesting things found online.

Pinterest expanded Tumblr’s emphasis on found content by making it even easier and more appealing to use

things from other websites. Like Tumblr, Pinterest allows users to share posts with friends and follow other

users’ posts. Also like Tumblr, Pinterest focuses on photos, videos, products, and other interesting things

found online, rather than original creation. However, instead of using a blog-format like Tumblr, Pinterest lets

users share and comment on website links using images that relate to the linked website. Thus, instead of an

online diary or blog, Pinterest is a “virtual pinboard” that provides “a venue to showcase neat found-items

from around the web.”5 The aesthetics of Pinterest’s platform strongly emphasis using found images.

However, some people worry that this emphasis on found content could expose users of second

generation social media websites to significant legal liability.6 Ironically, the ease and visual appeal that

created the public’s interest in Pinterest and other second generation social media websites, could turn out to

be the largest impediment it their continued successes. With Pinterest’s growth and popularity comes a

concern about widespread copyright infringement. So far, Pinterest has dealt with this concern in the same

way that most other user-generated content websites have: by having “procedures in place to deal with the

posting of copyrighted images and other material, where content owners can report a violation and have the

4
Rebecca Greenfield, A Newbie’s Guide to Pinterest, THE ATLANTIC (Jan. 11, 2012),
http://www.theatlanticwire.com/technology/2012/01/newbies-guide-pinterest/47285/; Jennifer Waters, Why Men Like
Social-media Site Pinterest, YAHOO! FINANCE (Apr. 20, 2012, 12:01 AM), http://finance.yahoo.com/news/why-men-social-
media-pinterest-040127372.html (“In fact, there are a lot more than a half dozen guys on the site, which captured some
18.7 million unique visitors in March alone, according to research firm comScore, up from 418,000 in May 2011. Of those
page views, women overwhelmingly dominate at 85%.”).
5
Greenfield, supra note 3.
6
See, e.g., Kirsten Kowalski, Why I Tearfully Deleted my Pinterest Inspiration Boards, DDKPORTRAITS (Feb. 24, 2012),
http://ddkportraits.com/2012/02/why-i-tearfully-deleted-my-pinterest-inspiration-boards/.

Electronic copy available at: http://ssrn.com/abstract=2131483

 Page |3

content taken down.”7 Pinterest’s terms of service also explicitly instruct users to not post images that would

violate copyright laws and state that individual users are liable for their own posts.8 These steps shelter the

host website from most copyright liability under the safe-harbor provisions in the Digital Millennium Copyright

Act (“DMCA”).9 However, individual website users cannot avail themselves of the DMCA safe-harbor

provisions and they receive no sympathy from Pinterest’s terms of service.10 Consequently, some people

worry that this new focus on sharing existing work might be luring the users behind the user-generated

content to unknowingly—but frequently—commit copyright infringement.11 Fortunately for users, however,

there is separate, statutory shield to copyright infringement liability available to them as long as their use is

“fair.”

This paper will evaluate the potential copyright infringement liability for Pinterest users.12 As this

paper will demonstrate, the statutory fair use defense would likely shield most Pinterest users from copyright

infringement liability. Part I will introduce Pinterest and explain how it works. Part II will briefly discuss

copyright law and how it would likely apply to Pinterest. Part III will analyze the applicability of the fair use

defense to copyright infringement on Pinterest. Part IV will conclude by determining that the fair use defense

would protect most Pinterest users from copyright infringement liability.

7
Sarah E. Needleman & Pui-Wing Tam, Pinterest's Rite of Web Passage—Huge Traffic, No Revenue, THE WALL STREET
JOURNAL, Feb. 16, 2012, http://online.wsj.com/article/SB10001424052970204792404577225124053638952.html.
8
Copyright & Trademark, PINTEREST, http://pinterest.com/about/copyright/ (last visited Apr. 24, 2012) (“Pinterest
("Pinterest") respects the intellectual property rights of others and expects its users to do the same.”); Terms of Service,
PINTEREST, http://pinterest.com/about/terms/ (last visited Apr. 24, 2012) (“You therefore agree that any User Content that
you post to the Service does not and will not violate any law or infringe the rights of any third party, including without
limitation any Intellectual Property Rights (defined below), publicity rights or rights of privacy.”); Acceptable Use Policy,
PINTEREST, http://pinterest.com/about/use/ (last visited Apr. 24, 2012) (“You agree not to post User Content that: . . .
infringes any third party’s Intellectual Property Rights, privacy rights, publicity rights, or other personal or proprietary
rights . . . contains any information or content that you do not have a right to make available under any law . . . .”).
9
See 17 U.S.C. § 512 (2000).
10
See id. § 512(k)(1) (stating that the safe-harbor only applies to “service providers” which are “entit*ies+ offering the
transmission, routing, or providing of connections for digital online communications, between or among points specified
by a user, of material of the user's choosing, without modification to the content of the material as sent or received”); see
also Jonathan Band & Matthew Schruers, Safe Harbors Against the Liability Hurricane: The Communications Decency Act
and the Digital Millennium Copyright Act, 20 CARDOZO ARTS & ENT. L.J. 295, 303-04 (2002).
11
Because the focus of this paper is on individual user liability, a more complete analysis of Pinterest’s host liability for
copyright infringement is beyond the scope of this paper.
12
However, much of this analysis could, by extension, apply to other social media platforms—like Tumblr and Facebook—
that make it easy for users to share copyrighted work.
 Page |4

I. WHAT IS PINTEREST?

Pinterest is the latest social media phenomenon.13 The social media website has grown exponentially

since its inception and now has over twelve million active users.14 According to some reports, this growth has

fueled Pinterest into the third most popular social media website in the United States, behind only the social

media juggernauts Facebook and Twitter.15 Pinterest users, who spend an average of an hour and a half a

month on the website, call the website “uniquely engaging, absorbing, and addictive.”16

Pinterest is a “Virtual Pinboard” created “to connect everyone in the world through the 'things' they

find interesting.”17 The website allows users to “organize and share all the beautiful things [they] find on the

web.”18 Pinterest users do this by “pinning” interesting things that they find on the internet to their Pinterest

profile page, called their “pinboard.” Then, users can share their pinboards with friends and browse pinboards

by other users. Popular themes on Pinterest include photos, art, recipes, wedding paraphernalia, quotes,

fashion, crafts, and workout plans.19 Every week millions of new pins are added.20

When someone joins the site, Pinterst adds a “Pin it” button to that user’s web browser. When a user

comes across a website of interest while browsing the internet, the user can pin the website by pushing the

“Pin it” button on her browser. When the “Pin it” button is pressed, Pinterest scans the website for images

and pulls up an image from the website that will ultimately become the new pin on the user’s pinboard. The

13
Lydia Dishman, Why Pinterest Is So Addictive, FAST COMPANY (Feb. 16, 2012, 7:18 AM),
http://www.fastcompany.com/1816603/why-pinterest-is-so-addictive; Samantha Murphy, Is Pinterest’s Exponential
Traffic Growth Slowing?, MASHABLE (Apr. 12, 2012),http://mashable.com/2012/04/12/pinterest-traffic-slowing/ (“Pinterest
has been heralded as one of the fastest-growing social networks to ever grace the web, bringing in more referral traffic
than YouTube, Reddit, Google+ and LinkedIn.”).
14
Josh Constine, Pinterest Hits 10 Million U.S. Monthly Uniques Faster Than Any Standalone Site Ever – comScore,
TECHCRUNCH (Feb. 7, 2012), http://techcrunch.com/2012/02/07/pinterest-monthly-uniques/ (“TechCrunch has attained
exclusive data from comScore showing Pinterest just hit 11.7 million unique monthly U.S. visitors, crossing the 10 million
mark faster than any other standalone site in history.”); Joann Pan, Pinterest Updates Privacy Policy, Terms of Service,
MASHABLE (Mar. 24, 2012), http://mashable.com/2012/03/24/pinterest-updates-privacy-policy-terms-of-service/.
15
Todd Wasserman, Pinterest is Now the No. 3 Social Network in the U.S., MASHABLE (Apr. 6, 2012),
http://mashable.com/2012/04/06/pinterest-number-3-social-network/.
16
Dishman, supra note 12.
17
What is Pinterest?, PINTEREST, http://pinterest.com/about/ (last visited Apr. 24, 2012).
18
Id.
19
PINTEREST, http://pinterest.com/ (last visited Apr. 24, 2012).
20
Id.
 Page |5

new pin shows the image from the original website as well as a link to the original site. The user also has the

option to add text to comment on the pin that will appear under the new pin in Pinterest. Once a website has

been pinned, other Pinterest users can see the pin and comment, like, or re-pin the image. This focus on

consolidating interesting images from across the web is a large part of the appeal of Pinterest. However, some

commentators believe that the simple, beautiful aesthetics that make Pinterest so popular could turn out to be

its downfall, depending on an interpretation of copyright law.

II. COPYRIGHT LAW IN THE INTERNET AGE

Pinterest is not the first online activity to challenge the boundaries copyright law. The internet has

birthed many challenges to modern copyright law.21 The internet’s open, sharing atmosphere is often at odds

with the Copyright Act’s exclusive grants.22 Consequently, the law in this area is still evolving and courts

interpreting the law are trying to strike the proper balance between copyright law’s goal of “stimulating the

creation and publication of edifying matter”23 and the public’s right to the dissemination of information. The

implications of any change in this evolving law are huge—copyrighted material is going up on social media

websites like Pinterest constantly. If the law was interpreted to hold that users could easily be held liable for

copyright infringement on social media websites, Pinterest would become a legal minefield and the second

generation of social media platforms would effectively become obsolete.

A. COPYRIGHT INFRINGEMENT UNDER THE COPYRIGHT ACT

Section 106 of the Copyright Act “confers a bundle of exclusive rights to the owner of the copyright.”24

These exclusive rights include the right to reproduce the work, prepare derivative works, distribute the work,

and perform or display the work publically.25 Congress codified these rights in response to Article I, Section 8

of the Constitution which provides: “The Congress shall have power . . . to Promote the Progress of Science and

21
See, e.g., Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007); A&M Records, Inc. v. Napster, Inc., 239
F.3d 1004 (9th Cir. 2001).
22
17 U.S.C. § 106 (2006).
23
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 n.10 (1994).
24
Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 546-47 (1985) (citing 17 U.S.C. § 106).
25
17 U.S.C. § 106.
 Page |6

useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective

Writings and Discoveries.”26 The Copyright Act was created to “assure contributors to the store of knowledge

a fair return of their labors.”27 Copyright protection applies to “original works of authorship fixed in any

tangible medium of expression, now known or later developed, from which they can be perceived,

reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”28 This broad

category can include photos, literary works, music, movies, and sound recordings.29

Copyright infringement occurs when someone reproduces, distributes, or displays a copyrighted work

without the express permission of the author or copyright holder. To establish prima facie proof in an

infringement action, the plaintiff must prove two elements: ownership of the copyright and copying by the

defendant.30 However, the exclusive rights bestowed upon copyright holders are subject to statutory

exceptions, including the fair use defense.31

B. THE FAIR USE DEFENSE

The statutory Fair Use defense “confers a privilege on people other than the copyright owner to use

the copyrighted material in a reasonable manner without his consent.”32 This complete defense to copyright

infringement balances the need to incentivize creation of public works with the public’s interest in the

distribution of information. Application of this equitable rule of reason is a fact-intensive inquiry involving a

mixed question of law and fact. However, to guide this inquiry, the statute provides several examples of fair

uses, as well as four, non-exclusive, factors that must be considered in determining fair use.33

26
U.S. CONST. art. I, § 8.
27
Harper & Row Publishers, 471 U.S. at 546.
28
17 U.S.C. § 102.
29
Id. (“Works of authorship include the following categories: (1) literary works; (2) musical works, including any
accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8)
architectural works.”).
30
Hustler Magazine Inc. v. Moral Majority Inc., 796 F.2d 1148, 1151 (9th Cir. 1986) (quoting 3 M. Nimmer, Nimmer on
Copyright § 13.01 (1985)).
31
See 17 U.S.C. §§ 106, 107.
32
Hustler Magazine, 796 F.2d at 1151 (internal quotations omitted).
33
17 U.S.C. § 107.
 Page |7

Copyrighted work can typically be used for “criticism, comment, news reporting, teaching *+,

scholarship, or research” without infringement.34 These examples, however, are merely illustrative, they are

not the only means of fair use nor is there a guarantee that one of the stated uses will actually be protected as

fair use. Additionally, the statute instructs that courts must consider four factors in analyzing fair use: 1) the

purpose and character of the use; 2) the nature of the copyrighted work; 3) the amount and substantiality of

the portion used; and 4) the effect of the use upon the potential market for or value of the copyrighted work. 35

These four factors must all be considered but they are not exclusive. Courts will not apply the four statutory

factors in isolation, but rather will weigh the results “in light of the purposes of copyright” to promote the

creation of new creative works.36 The fair use defense, and therein the balance of these four factors, would be

critical to Pinterest users accused of copyright infringement.

III. APPLYING COPYRIGHT LAW TO PINTEREST: PINNING IS FAIR USE

Were it not for the fair use defense, many Pinterest users would be guilty of prima facie copyright

infringement.37 It does not take much for a copyright owner to make a prima facie case of copyright

infringement. All that the copyright holder needs to show is: 1) ownership of the copyright and 2) copying by

the defendant without authorization, thereby violating the author’s exclusive rights.38 To meet the first

requirement the plaintiff must have a registered copyright,39 but this is not difficult to achieve if the work is

capable of being copyrighted and an author can register for a copyright prior to bringing suit.

Consequently, copyright liability on Pinterest first depends on what type of work is being pinned.

Pinterest users pin all sorts of different images and texts on the social media website and copyright liability will

vary depending on the type of images pinned. For example, an artist whose copyrighted painting or

34
Id.
35
Id.
36
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 (1994).
37
17 U.S.C. § 501 (“Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106
through 122 [of the Copyright Act] . . . is an infringer of the copyright or right of the author.”).
38
Hustler Magazine Inc. v. Moral Majority Inc., 796 F.2d 1148, 1151 (9th Cir. 1986) (quoting 3 M. Nimmer, Nimmer on
Copyright § 13.01 (1985)).
39
17 U.S.C. § 411(a); see also Morris v. Business Concepts, Inc., 259 F.3d 65, 68 (2d Cir. 2001).
 Page |8

photograph is pinned without her permission will likely be able to make the prima facie case of infringement

with ease—whereas a pin showing a picture of a craft in progress or a list of favorite workouts might escape

infringement liability altogether. Because the purpose of this paper it to analyze the availability of the fair use

defense to copyright infringement on second generation social media websites like Pinterest, the focus will be

on the most culpable pins—those that use copyright-registered images or text. In these cases, the prima facie

case for copyright infringement will typically be established with ease because the work is copyrighted and the

user violated the owner’s exclusive rights in the work by pinning it to a different website.40

Accordingly, Pinterest users will need a solid defense to escape copyright liability. Fortunately,

Pinterest users have a statutory defense available: fair use.41 The applicability of the fair use defense depends

primarily on the four statutory factors.42 As this paper will illustrate, the balance of these factors weighs in

favor of applying the fair use defense to Pinterest users. The following sections of this paper will introduce the

four factors relevant to the statutory fair use defense and apply them to copyright infringement on Pinterest.

A. THE FIRST FAIR USE FACTOR: THE PURPOSE AND CHARACTER OF THE INFRINGING USE

The first fair use factor evaluates the purpose and character of the infringing use. This factor

essentially turns on three sub-factors: 1) the commercial nature of the infringing use; 2) whether the new use

is transformative; and 3) the propriety of the defendant’s conduct.43 Pinterest users will likely have an

advantage with the first factor in the fair use analysis because their use in non-commercial, somewhat

transformative, and not in bad faith.

40
Potentially, an argument could be made that there is no “copying” per se with Pinterest, but rather the link and image is
merely being redirected. This would be a complex and novel argument worthy of separate analysis but it is beyond the
scope of this paper. For the purposes of this paper, it is assumed that by pinning an image to Pinterest the user is
“reproducing” or “distributing” the copyrighted work in violation of the owner’s exclusive rights and thus the work is
“copied”. See 17 U.S.C. §§ 106, 501.
41
17 U.S.C. § 107.
42
Id.
43
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578-79 (1994); NXIVM Corp. v. Ross Institute, 364 F.3d 471, 477-78 (2d
Cir. 2004).
 Page |9

First, courts give much more latitude to nonprofit uses than to commercial uses. Generally, a truly

non-commercial infringing use will favor a finding of fair use.44 Fortunately for users, Pinterest is used almost

exclusively non-commercially.45 The primary purpose and use of Pinterest is “to connect everyone in the world

through the 'things' they find interesting,” by providing the platform for users to “organize and share all the

beautiful things [they] find on the web.”46 Pinterest is free to join, and does not require much more

information than an email account. Pinners simply post images to show others images that they find

interesting—there is no monetary gain. While some retailers have begun to use Pinterest to self-promote and

thus make money off of their own images,47 individual users that use images found online are not using the

site to make money.48

In deciding this sub-factor, courts must decide “whether the user stands to profit from exploitation of

the copyrighted material without paying the customary price.”49 Many courts hold that a non-commercial use

is presumptively fair (and vice versa).50 For example, the district court in Righthaven v. Hoehn recently applied

this presumption of fair use to a website contributor who displayed an unauthorized reproduction of a

copyrighted journal article on a website to which he was a registered user.51 The court held that the first

factor in the fair use analysis favored a finding of fair use largely because the infringing use was non-

44
See Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 448-49 (1984); Bill Graham Archives v. Dorling Kindersley
Ltd., 448 F.3d 605, 611-12 (2d Cir. 2006); Righthaven, LLC v. Hoehn, 792 F. Supp. 2d 1138, 1149 (D. Nev. June 20, 2011); cf.
Harper & Row Publishers, 471 U.S. at 562 (finding that the infringing news publisher’s clearly commercial use weighed
against a finding of fair use).
45
It seems that even the developer is still trying to figure out a plan to make money off of the extremely popular website
that is available to users for free. See Needleman & Tam, supra note 6.
46
What is Pinterest?, supra note 16.
47
Needleman & Tam, supra note 6.
48
This analysis could change, however if Pinterest changes in a way that makes it easier for members or the website to
profit off of the postings (such as by deriving advertising revenues or affiliate marketing).
49
Harper & Row Publishers, 471 U.S. at 562; Hustler Magazine Inc. v. Moral Majority Inc., 796 F.2d 1148, 1152 (9th Cir.
1986).
50
See Sony Corp., 464 U.S. at 449 (“If the Betamax were used to make copies for a commercial or profit-making purpose,
such use would presumptively be unfair. The contrary presumption is appropriate here, however, because the District
Court’s findings plainly establish that time-shifting for private home use must be characterized as a noncommercial,
nonprofit activity.”); see also Righthaven, 792 F. Supp. 2d at 1149.
51
Righthaven, 792 F. Supp. 2d at 1138-41.
 P a g e | 10

commercial.52 The court found it significant that the defendant did not post the copyrighted work for profit

and that there was “no mechanism for him to profit by posting the Work on the website.”53 Because the

defendant did not and could not profit from the unauthorized posting, the use was completely non-

commercial and was presumptively fair.54 The presumption of fair use, combined with the respectable

purpose behind the posting (public comment), was enough to find that the first factor favored a finding of fair

use.55

However, even seemingly non-commercial uses could have commercial attributes. For example, in

Perfect 10, Inc. v. Amazon.com, Inc., the court found that Google’s use of thumbnails of copyrighted photos in

its search results has a commercial purpose.56 Although Google did not profit directly from the thumbnail

images, Google derived advertising revenue from the search result pages that contained the pictures.57 This

was enough to make Google’s unauthorized use of the infringing images commercial, albeit not significantly

so.58 In finding that the first factor weighed in favor of finding fair use, however, the court held that the

“transformative nature of Google’s search engine, particularly in light of its public benefit, outweigh[ed]

Google’s superseding and commercial uses of the thumbnails.”59

Here, posting images to Pinterest is more like the use in Righthaven than the use in Perfect 10. Like

the defendant in Righthaven, most Pinterest uses who use copyrighted images without authorization are not

making money off of the use, nor will they ever make money off the use. Unlike Google in Perfect 10, Pinterest

users are not deriving advertising revenue from recruiting viewers to their Pinterest pages. Currently, there is

simply no mechanism for Pinterest users to profit from exploiting copyrighted images.

52
Id.
53
Id.
54
Id. at 1149
55
Id.
56
Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1165-66 (9th Cir. 2007).
57
Id.
58
Id.
59
Id. at 1166.
 P a g e | 11

Second, the more “transformative” the infringing use is, the more likely a court is to find that the use is

fair. A use is transformative if it “adds something new, with a further purpose or different character, altering

the first with new expression, meaning, or message.”60 If the character of the new use differs from the

original, then the court is likely to find the use to be fair.61 The new use is not transformative if it “merely

supersedes the objects of the original creation.”62 To determine if a work “adds something new, with a further

purpose or different character,” courts will often inquire as to whether the new use aligns with the examples

of fair uses in the statute.63 Although transformative use is not absolutely necessary for a finding of fair use,

courts typically find that “the more transformative the new work, the less will be the significance of the other

[sub-]factors, like commercialism [and bad faith], that may weigh against a finding of fair use.”64

On first glance, a pin does not appear transformative. Most pins reproduce the original image in its

entirety. However, this analysis does not end with appearance. Rather than attempt to judge how different

the new work is from the copyrighted work, most courts focus on the purpose of the new work. Even if an

image is a duplicate, it can be transformative if it has a different purpose than the copyrighted work, especially

if the new purpose aligns with the fair use examples in the statue’s preamble: criticism, comment, news

reporting, teaching, scholarship, or research.65 For example, in two separate internet search engine cases,

courts held that the search engines’ uses of images found online were transformative.66 In Kelly v. Arriba Soft

Corp., the Ninth Circuit determined that a search engine’s use of copyrighted photographs was transformative

60
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994); Perfect 10, Inc., 508 F.3d at 1164-65.
61
Worldwide Church of God v. Phila. Church of God, Inc., 227 F.3d 1110, 1117 (9th Cir. 2000).
62
Campbell, 510 U.S. at 579 (quoting Folsom v. Marsh, 9 F.Cas. 342, 348 (No. 4,901) (CCD Mass. 1841)) (internal
quotations omitted).
63
See 17 U.S.C. § 107 (2000); Campbell, 510 U.S. at 578-79; NXIVM Corp. v. Ross Institute, 364 F.3d 471, 477 (2d Cir.
2004).
64
Campbell, 510 U.S. at 579.
65
Perfect 10, Inc., 508 F.3d at 1164-65; Kelly v. Arriba Soft Corp., 336 F.3d 811, 819 (9th Cir. 2002); Warren Pub. Co. v.
Spurlock, 645 F.Supp.2d 402, 417-21 (E.D. Pa. Aug. 4, 2009); Sarl Louis Feraud Intern. v. Viewfinder Inc., 627 F. Supp. 2d
123, 128-30 (S.D.N.Y. Dec. 19, 2008).
66
See Perfect 10, Inc., 508 F.3d at 1164-65; Kelly, 336 F.3d at 819; see also Field v. Google Inc., 412 F. Supp. 2d 1106, 1118-
19 (D. Nev. Jan. 19, 2006).
 P a g e | 12

because the search engine used the photographs to “improve*e+ access to information on the internet.”67 This

new use was substantially different from the purely artistic purpose of the original work.68 Similarly, in Perfect

10, the court determined that Google’s unauthorized use of image thumbnails was highly transformative in

light of its different purpose.69 Notably, the court in Perfect 10 stated, “*a+lthough an image may have been

created originally to serve an entertainment, aesthetic, or informative function, a search engine transforms the

image into a pointer directing a user to a source of information.”70 Therefore, as in Kelly, the court found that

the new use, “directing a user to a source of information,” was substantially different than the original artistic

use.71

In a non-internet context, courts have also found transformative use when copyrighted images are

used in a collage to enhanced biographical information.72 In Bill Graham Archives, the Second Circuit found

that the unauthorized inclusion of images of several copyrighted concert posters in a biographical book about

a band was fair use.73 The court held that the biographical purpose of the pictures was “separate and distinct”

from the original artistic purpose for which the images were created.74 Additionally, the court found that the

biographical book “minimized the expressive value of the reproduced images by combining them with . . .

textual material, and original graphical artwork, to create a collage of text and images on each page of the

book.”75 That court also relied on the fact that the copied images made up only an insignificant portion of the

biographical book that appropriated them.76

On the other hand, courts that have found the first factor to weigh against a finding of fair use typically

have done so because the purpose of the new use is substantially similar to the original use. For example, in

67
Kelly, 336 F.3d at 819.
68
Id.
69
Perfect 10, Inc., 508 F.3d at 1165.
70
Id.
71
Id.
72
Bill Graham Archives, 448 F.3d at 610-11.
73
Id.
74
Id.
75
Id. at 611.
76
Id.
 P a g e | 13

Cariou v. Prince, the district court held that an artist’s appropriation of an original photograph was used for

essentially the same purpose as the original.77 Both works were works of art and both were created for

profit.78 The court did not agree with the defendant’s argument that his artwork commented on the original

art by creating something creative and new.79 The court determined that the new work was not “comment”

because it did not refer or relate back to the original work and thus did not have a new meaning or purpose.80

Because the “transformative” sub-factor focuses on the purpose of the use, rather than the difference

in the appearance, Pinterest users would have a strong argument that their use of an image, even in its

entirety, is transformative. Pinterest users are typically using the images for a purpose separate and distinct

from the original. Most of the images copied to Pinterest were originally created for artistic or promotional

purposes. Conversely, Pinterest users post these pictures to remember a picture or link of interest and/or to

inform friends and acquaintances about their interests. Either way, the work posted by Pinterest users

comments on the original by relating and by referring to it.81 Unlike the new work in Cariou, which simply used

an image for the same artistic purpose, Pinterest users are commenting on the original work. The pin typically

reflects the pinner’s positive review of the image and makes a reference to it so that the user, and the user’s

acquaintances, can return to the image later. Similarly, like the defendants in Kelly and Perfect 10, Pinterest

users are primarily “directing a user to a source of information.”82 In doing so, the Pinterest user is merely

“improving access to information on the internet.”83

Additionally, Pinterest users’ copying can be analogized to the biographical use of the images in Bill

Graham Archives.84 Like the defendant in Bill Graham Archives, Pinterest users are using images to present a

collage of their interests that is biographical in that it offers a glimpse into that person’s life. Also, as in Bill
77
Cariou v. Prince, 784 F. Supp. 2d 337, 348-50 (S.D.N.Y. Mar. 18, 2011).
78
Id.
79
Id.
80
Id.
81
Categorizing a work as comment can be important because “comment” is one of the examples of fair uses in the
preamble to the statutory fair use defense. See 17 U.S.C. § 107 (2000).
82
Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1165 (9th Cir. 2007); see also Kelly, 336 F.3d at 819.
83
Kelly, 336 F.3d at 819.
84
Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006).
 P a g e | 14

Graham Archives, each individual image pinned by a Pinterest user is a small part of a much larger work. Each

image is a part of a collage of images that make up that user’s pinboard that can contain text, original artwork,

and many other images.

Third, some courts have interpreted the ‘purpose and character of use’ factor as requiring good-faith

and fair dealing on the part of the copier.85 These courts have suggested that any bad-faith on behalf of the

defendant will spoil a finding fair use.86 Courts have found bad faith when the copier knowingly exploits the

copyrighted work to the detriment of the copyright holder, thereby refusing the copyright holder his right to

reap the rewards of first publication.87 However, other courts have held that it is not bad faith to fail to seek

permission to use an image if the use is otherwise fair.88

Here, the impact of this sub-factor, if applied, is not significant. Most Pinterest users are not

appropriating the copyrighted images in bad faith. Most are likely ignorant of the fact that such images

published online are subject to copyright and licensing laws. Although ignorance is no excuse to the law,89 it

can defeat a claim of bad faith.90 Additionally, because the use is otherwise fair, as this paper discusses, bad

faith will likely not apply.91

Having assessed all of the sub-factors that make up the “purpose and character of use” inquiry, the

next task is to balance all three together. Here, that is not much of a challenge. All three sub-factors favor fair

85
Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 562-63 (1985); see also NXIVM Corp. v. Ross Institute,
364 F.3d 471, 478 (2d Cir. 2004); but cf. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 585 n.18 (1994) (noting the
inconsistency with which courts and commentators have applied a ‘bad faith’ analysis); Blanch v. Koons, 467 F.3d 244,
255-56 (2d Cir. 2006) (also noting the inconsistency with which courts and commentators have applied a ‘bad faith’
analysis).
86
Harper & Row Publishers, 471 U.S. at 562-63; see also NXIVM Corp., 364 F.3d at 478.
87
See, e.g., Harper & Row Publishers, 471 U.S. at 562-63 (finding bad faith when the defendant news magazine
intentionally “scooped” the forthcoming copyrighted news story to the detriment of the publication that held the
copyright).
88
Blanch, 467 F.3d at 256.
89
Lambert v. People of the State of California, 355 U.S. 225, 228 (1957).
90
See, e.g., Marsh Inv. Corp. v. Langford, 721 F.2d 1011, 1014 (5th Cir. 1983) (accepting the trial court's definition of bad
faith that “mere ignorance is not bad faith”).
91
See, e.g., Blanch, 467 F.3d at 256 (“*I+t can hardly be said to have been an act of bad faith for Koons to have neither
sought nor been granted permission for the use of ‘Silk Sandals’ if, as we find, the use is otherwise fair.” (internal
quotations omitted)).
 P a g e | 15

use. As was shown above, Pintrerest users are not copying images for commercial gain and their use is, at

least, somewhat transformative. Additionally, Pinterest users are not copying images in bad faith. Therefore,

the first statutory factor in the fair use analysis easily favors a determination that Pinterest users’ copying of

online images is fair use.

B. THE SECOND FAIR USE FACTOR: THE NATURE OF THE COPYRIGHTED WORK

The second factor is less flexible than the first, but courts typically do not give as much weight to this

factor, especially when the new work is transformative.92 The second factor recognizes that “some works are

closer to the core of intended copyright protection than others.”93 This analysis turns on two facts: whether

the original work was creative or merely factual and whether the original work is published or unpublished.94

Courts apply the fair use defense more narrowly for creative or fictional works as opposed to works that are

primarily factual. Courts also apply a narrower fair use defense when the original work is unpublished because

of the emphasis on an author’s exclusive right “to control the first public appearance of his expression.” 95

Although Pinterest users may not find solace in this factor, the damage to a finding of fair use overall is

minimal.

This factor is not very beneficial to Pinterest users, but it is not entirely harmful either. The images

copied by many Pinterest users, especially art and photos, fall within the scope of creative work “closer to the

core of indeed copyright protection than others.”96 Court’s routinely hold that photographs, even factual

92
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 586 (1994); Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d
605, 612 (2d Cir. 2006) (“the second factor may be of limited usefulness where the creative work of art is being used for a
transformative purpose.”); Righthaven, LLC v. Hoehn, 792 F. Supp. 2d 1138, 1150 (D. Nev. June 20, 2011) (“However, this
factor is not terribly relevant in the overall fair use balancing . . . .”).
93
Campbell, 510 U.S. at 569.
94
Blanch, 467 F.3d at 244 (quoting 2 HOWARD B. ABRAMS, THE LAW OF COPYRIGHT, § 15:52 (2006)).
95
Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 564 (1985); NXIVM Corp. v. Ross Institute, 364 F.3d
471, 480 (2d Cir. 2004); cf. Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 449 (1984).
96
Campbell, 510 U.S. at 569.
 P a g e | 16

ones, are creative work and thus deserving of significant copyright protection.97 This fact weighs against a

finding of fair use. However, this is not the end of the second factor analysis.

Alternatively, Pinterest users benefit from the fact that the original images were made publically

available online for all to view. Pinterest users can only pin images that they find on websites online. This fact

weakens the copyright owner’s argument against fair use.98 Court’s dealing with this situation—copying of

unpublished, creative works—typically hold that the second factor, if useful at all, weighs slightly against fair

use.99 For example, in Sony, the Supreme Court determined that copying an entire copyrighted television

show on a recording device for private use “does not have its ordinary effect of militating against a finding of

fair use” because the copying “merely enables a viewer to see such a work which he had been invited to

witness in its entirety free of charge.”100 Similarly, the Ninth circuit held in Kelly that the second factor only

slightly favored the plaintiff copyright holder because the images that were copied by the search engine were

publicly available online.101 The Ninth Circuit also applied this analysis to similar facts in Perfect 10 with an

identical result.102

Consequently, a court faced with this question in the Pinterest context would follow this reasoning and

likely hold that the second factor weighs slightly against finding fair use. Like the fair uses in Kelly and Perfect

10, Pinterest users’ pins typically contain creative images. Also like in those cases, the images on Pinterest

were previously published and free for all to see online. Additionally, this factor has limited weight here

97
See, e.g., Blanch, 467 F.3d at 257 (photograph is creative work); Kelly v. Arriba Soft Corp., 336 F.3d 811, 819-21 (9th Cir.
2002) (same); Cariou v. Prince, 784 F. Supp. 2d 337, 352 (S.D.N.Y. Mar. 18, 2011) (same).
98
Blanch, 467 F.3d at 256; cf. Harper & Row Publishers, 471 U.S. at 564 (“The fact that a work is unpublished is a critical
element in its ‘nature,’ *and+ . . .the scope of fair use is narrower with respect to unpublished works.”); NXIVM Corp., 364
F.3d at 480 (“The parties do not dispute that because the copyrighted work is unpublished, the district court properly
found the second factor, “the nature of the copyrighted work,” to favor plaintiffs.”).
99
See, e.g., Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1167 (9th Cir. 2007); Blanch, 467 F.3d at 257; Bill Graham
Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 612 (2d Cir. 2006); Kelly v. Arriba Soft Corp., 336 F.3d 811, 820 (9th Cir.
2002); Field v. Google Inc., 412 F. Supp. 2d 1106, 1120 (D. Nev. Jan. 19, 2006).
100
Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 449-50 (1984).
101
Kelly, 336 F.3d at 820; see also Field, 412 F. Supp. 2d at 1120.
102
Perfect 10, Inc., 508 F.3d at 1167.
 P a g e | 17

because Pinterest users are using online images in a transformative manner to comment on the images. 103

Therefore, although this factor weighs in favor of the copyright holder, its effect on the fair use analysis is

minimal and does not impede a finding of fair use overall.

C. THE THIRD FAIR USE FACTOR: THE AMOUNT AND SUBSTANTIALITY OF THE PORTION TAKEN

The third factor evaluates how much of the original work is used in the infringing work. This

evaluation “has both a quantitative and a qualitative component.”104 The court looks at both the amount of

the copyrighted work used and the significance of the portion used.105 Wholesale copying can militate against

finding a fair use.106 However, this factor is not considered in isolation. The court also evaluates whether the

portion used was reasonable in relation to the purpose of the copying.107 Consequently, the purpose and

character of the copying, discussed in Part III.A above, plays a significant role in determining whether the

amount copied was reasonable.108 This factor also considers the degree to which the infringing work may

serve as a market substitute for the original—an element of the fourth fair use factor.109 Because of these

ancillary considerations, even a new use that appropriates the entire copyrighted work can be fair use. 110

When the copying is reasonable in light of its purpose, this fair use factor is of little consequence to the fair use

analysis.111

The Ninth Circuit utilized this reasoning to determine that wholesale copying of images was reasonable

for search engines because using entire images was necessary to accomplish the permissible purpose.112 The

103
See supra Part III.A; Blanch, 467 F.3d at 257.
104
NXIVM Corp. v. Ross Institute, 364 F.3d 471, 480 (2d Cir. 2004) (quoting New Era Pubs. Int’l ApS v. Carol Publ’g Group,
904 F.2d 152, 158 (2d Cir. 1990)).
105
Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 565 (1985).
106
A&M Records, Inc. v. Napster, Inc., 239 F.3d 1016 (9th Cir. 2001).
107
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 586-87 (1994); NXIVM Corp., 364 F.3d at 480.
108
Campbell, 510 U.S. at 586-87.
109
See infra Part III.D.
110
See, e.g., Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 449-50 (1984) (determining that because the
infringing use “merely enables a viewer to see such a work which he had been invited to witness in its entirety free of
charge, the fact that the entire work is reproduced, . . . does not have its ordinary effect of militating against a finding of
fair use” (emphasis added)); Kelly v. Arriba Soft Corp., 336 F.3d 811, 820-21 (9th Cir. 2002).
111
See Nunez v. Caribbean Intern. News Corp., 235 F.3d 18, 24 (1st Cir. 2000).
112
Perfect 10, Inc., 508 F.3d at 1167-68; Kelly, 336 F.3d at 820-821.
 P a g e | 18

search engines copied the images “to allow users to recognize the image and decide whether to pursue more

information about the image or the originating web site.”113 The court held that this use was reasonable

because if the search engines only used part of the image, the usefulness of the visual search engine would be

impaired.114 Similarly, the Second Circuit in Blanch v. Koons determined that an appropriation artist’s use of a

copyrighted photograph was reasonable “when measured in light of *the+ purpose, to convey the ‘fact’ of the

photograph to viewers of the painting.”115 The First Circuit has also found that copying of an entire image can

be reasonable in light of the purpose.116 In Nunez, the First Circuit determined that a newspaper’s

unauthorized, wholesale use of a controversial photograph to accompany a story was reasonable in light of the

third fair use factor because copying less of the picture would have made it useless to the story.117

Consequently, the court determined that the third fair use factor was “of little consequence to [the fair use]

analysis.”118

Not all courts, however, are as accepting of wholesale copying, especially when the use is barely

transformative or the purposes of the two uses overlap.119 For example, in Rogers, the Second Circuit

determined that an appropriation artist’s wholesale copying of a photograph was more than reasonably

necessary to achieve its purpose.120 The artist had copied an image and made it into a sculpture, which the

artist claimed was created to parody the original work—a permissible fair use.121 The court held that the

artist’s use was not parody; but even if the artist was using the work for a proper purpose, he still used more

113
Kelly, 336 F.3d at 820-821.
114
Id.
115
Blanch v. Koons, 467 F.3d 244, 257 (2d Cir. 2006); see also Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605,
613 (2d Cir. 2006) (determining that the use of copyrighted images of concert posters in a biography about the band was
reasonable in light of the purpose of the use and the fact that the images were reduced in size).
116
Nunez v. Caribbean Intern. News Corp., 235 F.3d 18, 24 (1st Cir. 2000).
117
Id.
118
Id.
119
See, e.g., American Geophysical Union v. Texaco Inc., 60 F.3d 913, 926 (2d Cir. 1994); Rogers v. Koons, 960 F.2d 301,
311 (2d Cir. 1992); Cariou v. Prince, 784 F. Supp. 2d 337, 352 (S.D.N.Y. Mar. 18, 2011); Warner Bros. Ent. Inc. v. RDR Books,
575 F. Supp. 2d 513, 546-49 (S.D.N.Y. Sept. 8, 2008); Designer Skin, LLC v. S & L Vitamins, Inc., 560 F. Supp. 2d 811, 824 (D.
Ariz. May 20, 2008).
120
Rogers, 960 F.2d at 311.
121
Id.
 P a g e | 19

than reasonable.122 In so holding, the court distinguished Rogers from the “narrow” holding in Sony.123 The

court stated that although Sony stood for the general proposition that wholesale copying does not preclude a

finding of fair use, per se, its holding is limited to situations in which the transformative nature of the new

work “does not impair plaintiffs’ commercial right in the value of the copyright.”124 The court held that the

artist’s use was not transformative enough to justify wholesale copying and that the artist “went well beyond

[using] the factual subject matter of the photograph to incorporate the very expression of the work created by

Rogers.”125 Essentially, the court held that because the purposes of the two uses overlapped, substantial

copying was not reasonable.

Similarly, the Second Circuit, in American Geophysical Union v. Texaco, held that the defendant’s

unauthorized copying and dissemination of several journal articles in their entirety was not reasonable under

the third fair use factor.126 Interestingly, the court reversed the analysis, holding that the fact that the

defendant used the articles in their entirety—a substantial amount, under the third factor—weakened their

argument that the purpose of the copying was transformative.127 The defendant tried to argue that it copied

the articles without authorization “to enable the immediate use of the article[s] in the laboratory.”128 But the

court determined that the wholesale copying suggested that their predominant purpose was to establish a

personal library of pertinent articles.129 Essentially, the court concluded, in a circular manner, that the

wholesale copying was not reasonable because it was not transformative, and it was not transformative

because the defendant copied the articles in their entirety.

122
Id.
123
Id.
124
Id.
125
Id.; see also Cariou v. Prince, 784 F. Supp. 2d 337, 352 (S.D.N.Y. Mar. 18, 2011) (finding an artist’s use not
transformative enough to justify wholesale copying of a photograph).
126
American Geophysical Union v. Texaco Inc., 60 F.3d 913, 926 (2d Cir. 1994).
127
Id.
128
Id.
129
Id.
 P a g e | 20

Applying this factor to Pinterest, there is no clear indication of how a court would side. Generally, the

images pinned are copied in their entirety, without much visual alteration.130 This fact does not favor the

Pinterest users. If a court limits its analysis to these facts or employs some kind of (arguably) circular reasoning

(like the Second Circuit in Texaco) to discount the transformative nature of the use, then Pinterest users

cannot win this third factor. However, as mentioned, this factor does not depend solely on the percentage

copied or the visual similarities.

Accordingly, if a court determines that the use is reasonable in light of the distinct purpose, then

Pinterest users might be able to edge out the copyright holder for this factor. As in Kelly and Perfect 10, one

can argue that it is necessary for Pinterest users “to copy the entire image to allow users to recognize the

image and decide whether to pursue more information about the image or the originating web site.”131 This

argument is strengthened because of the similarities between the fair uses in Kelly and Perfect 10 and the use

in Pinterest. First, as in Kelly and Perfect 10, Pinterest users copy wholesale images from websites that were

published and freely available online. Second, Pinterest is a visual search engine in that its primary purpose is

to allow users to “organize and share all the beautiful things [they] find on the web.”132 Thus, like a search

engine, Pinterest uses images to direct users and others to different websites. Pinterest even includes the

website link related to each image in each pin.133 Pinterest is merely a search engine in which people, not

algorithms, decide which websites get referenced. Pinterest’s other purpose is to allow users to comment on

interesting images, 134 which also likely requires the use of full size images to “convey the fact” of the image. 135

These transformative purposes should persuade a court that although the copyrighted images are copied in

their entirety, the amount copied is insignificant in the overall fair use analysis.

D. THE FOURTH FAIR USE FACTOR: THE EFFECT OF THE INFRINGING USE UPON THE POTENTIAL MARKET

130
PINTEREST, supra note 18.
131
Kelly v. Arriba Soft Corp., 336 F.3d 811, 821 (9th Cir. 2002).
132
What is Pinterest?, supra note 16.
133
Id.
134
Id.
135
See Blanch v. Koons, 467 F.3d 244, 257 (2d Cir. 2006).
 P a g e | 21

The most important element of fair use is the fourth statutory fair use factor, which requires courts to

“consider not only the extent of market harm cause[d] by the particular actions of the alleged infringer, but

also ‘whether unrestricted and widespread conduct of the sort engaged in by the defendant . . . would result in

a substantially adverse impact on the potential market’ for the original.”136 A ‘fair’ use is one that does not

materially impair the marketability of the copied work, because “a use that has no demonstrable effect upon

the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the

author’s incentive to create.”137

To determine whether the new use has harmed the work’s value or potential market, courts will focus

on: 1) whether the infringing use diminishes or prejudices the potential sale of the work; 2) whether the

infringing use tends to interfere with the future marketability of the work; and 3) whether the infringing use

fulfills the demand for the original work.138 Much of this determination turns on defining the relevant market:

the market for the plaintiff’s expression.139 The relevant market goes beyond the copyrighted work to include

potential derivative works, but only those “that creators of original works would in general develop or license

to others to develop.”140 Therefore, the potential derivative market does not include every potential use—the

more tangential the claimed derivative is, the more likely that the court would require proof of such an

intention to enter that market.141 The court has cautioned against finding market harm based solely on the

136
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994) (quoting Nimmer § 13.05A 4, p. 13-102.61); Harper & Row
Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 566 (1985).
137
Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 450 (1984).
138
Hustler Magazine Inc. v. Moral Majority Inc., 796 F.2d 1148, 1155-56 (9th Cir. 1986); see also Harper & Row Publishers,
471 U.S. at 568 (“*T+o negate fair use one need only show that if the challenged use should become widespread, it would
adversely affect the potential market for the copyrighted work.” (emphasis in original) (internal quotations omitted))
(quoting Sony Corp., 464 U.S. at 451); Blanch, 467 F.3d at 258 (determining that the fourth factor concerns “whether the
secondary use usurps the market of the original work”); NXIVM Corp. v. Ross Institute, 364 F.3d 471, 481 (2d Cir. 2004)
(“The focus here is on whether defendants are offering a market substitute for the original.”).
139
NXIVM Corp., 364 F.3d at 482.
140
Campbell, 510 U.S. at 592; see also Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70, 81 (2d Cir. 1997) (“We
have endeavored to avoid the vice of circularity by considering only traditional, reasonable, or likely to be developed
markets when considering a challenged use upon a potential market.” (internal quotations omitted)).
141
See, e.g., Hustler Magazine, 796 F.2d at 1156 (finding no harm to a potential market because the defendant used the
infringing work in a way that the plaintiff “could not have taken advantage of”); Blanch, 467 F.3d at 258 n.9 (“But nothing
in the record here suggests that there was a derivative market for [plaintiff] to tap into that is in any way related to
 P a g e | 22

potential to license the infringed work to the infringer when no such market has existed and there is no

evidence of the copyright holder participating in such a market.142 Additionally, for non-commercial uses of

copyrighted work, courts generally require the copyright owner to “demonstrate by a preponderance of the

evidence that there is some meaningful likelihood of future harm.”143

Generally, Pinterest users will benefit from this factor: Because Pinterest users’ pins are non-

commercial, the burden shifts to the copyright owner to demonstrate some meaningful likelihood of future

harm. Thus, the copyright holder must have evidence that the copying of the image on Pinterest usurps the

market for the original work. If there is no evidence that a market exists or was ever planned for such a work,

then the copyright holder would fail to meet her burden. The mere fact that Pinterest users copy images in

their entirety does not establish market harm.144 Additionally, market harm is not assumed merely because

the user could have been charged a licensing fee for the use of the picture when no such market existed.145

Even when images pinned to Pinterest have licensing markets, these markets are most likely not

harmed or “usurped” by reproduction on the social media website. Most of the time, images on Pinterest are

not substitutes for the originals because they are taken out of context, often altered in size, and commented

on by users. Although the Pinterest images are not as obviously inferior to the originals as the thumbnails in

Kelly146 or the low-resolution newspaper copy of the photo in Nunez,147 Pinterest images still do not likely

supersede the original. To get the full expression of the original image, one still must follow the link on the pin

*defendant’s+ use of her work, even if she dearly wanted to.”); Righthaven, LLC v. Hoehn, 792 F. Supp. 2d 1138, 1150 (D.
Nev. June 20, 2011) (“However, *plaintiff+ has not presented any evidence of harm or negative impact . . . .”); but cf.
Ringgold, 126 F.3d at 80-82 (finding a triable issue of fact regarding potential harm to a market for licensing images the
plaintiff’s copyrighted artwork when the plaintiff demonstrated that such a market actually existed).
142
Field v. Google Inc., 412 F. Supp. 2d 1106 (D. Nev. Jan. 19, 2006) (“More generally, there is no evidence before the
Court of any market for licensing search engines the right to allow access to Web pages . . . or evidence that one is likely
to develop.”); but cf. Ringgold, 126 F.3d at 80-82 (finding a triable issue of fact regarding potential harm to a market for
licensing images the plaintiff’s copyrighted artwork when the plaintiff demonstrated that such a market actually existed).
143
Hustler Magazine, 796 F.2d at 1148 (emphasis in original) (internal quotations omitted) (quoting Sony Corp., 464 U.S.
at 451); see also Campbell, 510 U.S. at 590-91 (discussing the Sony presumption but holding that it should not apply in the
case at hand based on the facts); A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1016 (9th Cir. 2001).
144
See, e.g., Righthaven, 792 F. Supp. 2d at 1150-51.
145
See Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 614 (2d Cir. 2006).
146
Kelly v. Arriba Soft Corp., 336 F.3d 811, 818 (9th Cir. 2002).
147
Nunez v. Caribbean Intern. News Corp., 235 F.3d 18, 25 (1st Cir. 2000).
 P a g e | 23

to the original source of the image. Pinterest encourages this by adding links to the original website in the pin.

In fact, for many websites, Pinterest actually improves the market for the original work by driving considerable

traffic to that image’s original website.148 For example, many pins contain a picture of a food dish along with a

comment describing the dish. Most users categorize these pins as ‘recipes.’ To get the full context and

expression of the image, and importantly, the actual recipe, a Pinterest user must visit the original website.

This also applies to pins of pictures of artwork (other than photography). In this scenario, the online image

itself is not sold or licensed, but instead, it represents a work in a different medium that can be purchased.

Although such images could be copyrighted, the images of these works are not themselves marketed; they are

merely used for promoting the sale of the original work. These thumbnail-type images that can be posted to

Pinterest could not substitute for full-sized works of art and Pinterest users who desire to see the real art must

visit the creator or purchase the work.

Additionally, because the use of copyrighted images on Pinterest is transformative, the use is “less

likely to have an adverse impact on the market of the original than a work that merely supersedes the

copyrighted work.”149 Courts finding this fourth factor to weigh in favor of a copyright owner typically do so

because the new use was for profit and had the same purpose as the original work (e.g., making and selling

artwork from copyrighted images that were themselves primarily meant to be artwork).150 Here, the purposes

of Pinterest images, which are to comment and organize, are distinct and separate from any artistic or

expressive original purpose. Additionally, because a Pinterest user must visit the original website to learn

about and purchase the actual work, Pinterest actually broadens the market for such works. For example,

Pinterest recently became the top website referrer for marthastewartweddings.com and

148
Lauren Indvik, Pinterest Becomes Sales Driver for Major Home Goods Store, MASHABLE (Apr. 2, 2012),
http://mashable.com/2012/04/02/pinterest-wayfair/ (“Wayfair (formerly CSN Stores), the second largest home goods
retailer by revenue, has found that Pinterest referrals are more likely to make a purchase and spend more on average
than visitors from other social channels.”).
149
Kelly, 336 F.3d at 821.
150
See, e.g., Rogers v. Koons, 960 F.2d 301, 311 (2d Cir. 1992); Cariou v. Prince, 784 F. Supp. 2d 337, 352 (S.D.N.Y. Mar. 18,
2011).
 P a g e | 24

marthastewart.com.151 Pinterest sent more traffic to these websites than Facebook and Twitter combined.152

By sending traffic to the original websites, Pinterest is not superseding the original websites, but rather it is

complementing them, much like the search engine in Kelly. 153 As a result, many forward-thinking companies

are developing strategies to maximize visibility on Pinterest.154

E. BALANCING THE FACTORS

Having addressed the factors separately, a court’s task turns to balancing them in light of the facts and

any other considerations to make an equitable determination. Applying these factors to Pinterest users, a

court would likely conclude that the use was fair, under 17 U.S.C. § 107. First, as shown in Section III.A above,

the ‘purpose and character of the use’ factor significantly favors a finding of fair use because: 1) Pinterest users

are using the images for non-commercial purposes, 2) their use has a distinct purpose and is therefore

transformative, and 3) they are not copying the images in bad faith.155

Second, as detailed in Section III.B above, the ‘nature of the copyrighted work’ factor only weighs

slightly against a finding of fair use, if at all. To the extent that Pinterest users often copy creative works that

are subject to significant copyright protection, this factor weighs against them. However, because the copied

images are always published images that were publically available online for free, for all to see, this factor is

much less significant in the fair use analysis.156

Third, the ‘the amount and substantiality of the portion taken’ factor most likely adds nothing to the

analysis either way. The fact that Pinterest users typically appropriate an image in its entirety does not help

151
Lauren Indvik, Pinterest Becomes Top Traffic Driver for Women’s Magazines, MASHABLE (Feb. 26, 2012),
http://mashable.com/2012/02/26/pinterest-womens-magazines/.
152
See id.
153
Kelly, 336 F.3d at 821.
154
Jennifer Forker, Crafty Bloggers use Pinterest to Swap Ideas, Drive Traffic, SEATTLE TIMES (Apr. 22, 2012, 5:30 AM),
http://seattletimes.nwsource.com/html/living/2018013544_pininterest22.html.
155
See supra Part III.A.
156
See supra Part III.B.
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their cause. But, because the wholesale copying is likely reasonable in light of the distinct and proper purpose

of the use, a court is likely to find that this factor does not weight against a finding of fair use.157

Fourth, the ‘effect of the infringing use upon the potential market’ factor—the most significant

factor—weighs in favor of finding fair use. Pinterest pins do not harm any potential market for copyrighted

images because they are non-commercial and transformative. Instead, Pinterest actually complements the

market for some images by sending significant online traffic to original websites.158

Finally, because the four factors are non-exclusive, courts have discretion to consider other facts and

balance them in this analysis.159 However, any additional considerations are not nearly as significant as the

four factor analysis. Courts do not specify what kinds of other factors can be considered and they rarely

venture beyond those factors already established. Because the four factor analysis is so convincing in this

scenario, courts would not likely seek out or give much weight to additional considerations.160

Essentially, two factors significantly favor finding fair use (including the most important factor), one

factor probably weighs slightly against fair use, and one factor does not favor either side. Considering this

balance, it can logically be concluded that a court should and would find that Pinterest users are protected

from copyright infringement liability by the statutory fair use defense.161

IV. CONCLUSION

The fair use defense should give concerned Pinterest users a sigh of relief. Although pins come in

many different forms—and this paper could not possibly analyze the liability of every different type of pin—

most of the copying on Pinterest is protected by the statutory fair use defense. This offers significant, but not

157
See supra Part III.C.
158
See supra Part III.D.
159
Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 560-61 (1985).
160
If a court did decide to seek out other considerations to weigh, one could imaging at least some considerations that
favor Pinterest users such as: 1) the fact that their use aligns with one of the example fair uses in the preamble of 17
U.S.C. § 107; 2) the fact that their use actually benefits the copyright holders in many instances (as shown in Section III D
supra); 3) the fact that Pinterest adds links in the pin to the original website and pinners sometimes name the original
creator in the pin, thereby giving credit to the original creator ; and 4) the fact that Pinterest users are merely fans of the
copyright holders’ works and trying to show their appreciation for the works.
161
See generally Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) (facing a similar balance with similar
facts, the court found fair use); Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2002) (same).
 P a g e | 26

absolute, protection to Pinterest users. This finding is important to the social media phenomenon as a whole

because, without the fair use defense, Pinterest would be a minefield of copyright liability. Such huge liability

would likely shut down image-based social media websites like Pinterest and Tumblr, which could effectively

stunt a significant, and attractive, trend social media websites. If users could not qualify for the fair use

defense, social media websites would have to focus exclusively on original content and would lose much of

their visual and social appeal. As the internet becomes more social, there is no doubt that copyright

infringement will continue to be a concern. Hopefully, courts will continue to interpret the fair use defense in

favor of this technological evolution—as this paper has—and pinners will be able to keep pinning all of the

things that they find “Pinteresting.”