Branding on Pinterest: How to Avoid Legal Liability

Last week, I suggested in my post that unless Pinterest addresses the legal issues inherent in its business model more responsibly, it cannot reach maturity as a social media website. I suspect that over time, we may see Pinterest evolve, but how can brands establish themselves on Pinterest in its current format with its existing terms and conditions? Below are some steps to take in developing a Pinterest branding strategy that minimizes legal risk.

Avoid copyright liability. The number one legal concern in establishing Pinterest activity is avoiding copyright liability. When brands set up their Pinterest boards, they should be careful to pin only images they own or to which they have valid licenses. Those licenses should contain unlimited usage on the Internet or even better a specific right to use the image on Pinterest. For expanded capabilities, look to brand partners’ image libraries and obtain permission to use their images. In addition, be aware that Pinterest’s “No Pin” code does not create a safe harbor. In other words, if a website fails to embed the code, that does not mean its images are available for pinning.

Look at the content of  images. Copyright clearance is not sufficient. If the photograph has a person in it, the brand must obtain a release from that person or risk a right of privacy or right of publicity lawsuit. Similarly, photos that contain third party trademarks create risk of claims for trademark infringement or unfair competition.  Run photos with these issues past legal counsel before pinning them.

Watch out for celebrities. It is tempting to pin an image containing a celebrity interacting with a brand. As always, the company should obtain permission. As an added twist, be sure to instruct any celebrity endorser about guidelines for pinning brand-associated content on his or her personal pages.

Look at the underlying websites. Just because the image is available to pin, does not mean that a brand would want the image on its board. Remember that all images link back to their underlying websites. Does the brand want to be associated with the original website? This could be a public relations concern.

Beware user-generated content.  Asking consumers to create branded Pinterest pages in a sweepstakes or contest could be dangerous. While it is tempting to leverage the creative energy of the public, the marketer could be unwittingly encouraging copyright infringement and other third-party claims. Unlike a videos or jingles, a sponsor cannot pre-approve consumer-generated Pinterest boards before they go public. They are available for the world to see from the moment of creation. The solution is to offer a library of images to consumers that have been preapproved and restrict entries in promotions to those images.

Be prepared for FTC issues. Take care to note if inviting consumers to create Pinterest content in exchange for a prize creates a material connection under the FTC’s Endorsement and Testimonial Guidelines. A marketer’s legal counsel should be involved in this analysis and in creating required disclosures.

Set up internal guidelines. Brand managers should designate certain employees to build the brand’s Pinterest boards. Those appointed employees should be trained to understand the legal issues at stake. Most importantly, they should know to think before they pin.

For more thoughts about brands operating on Pinterest, read the next part of this blog here.