Archive for February 2012
In a recent Business Insider article, a lawyer named Kristen (who also happens to be a photographer) outlines her adventure through the legal terms of use of Pinterest, an image sharing website in which users can “pin” photos of things that they like to virtual corkboards to share with the public. Pinterest has been under fire recently from the photography community for enabling the sharing and storage of images without consent, credit, or any proper license.
What Kristen discovered was that Pinterest includes some interesting language in their terms of service that essentially allow them to wipe their hands clean of any wrongdoing should they find themselves on the receiving end of a legal proceeding by a copyright holder. In short, by using Pinterest you agree to hold Cold Brew Labs (the company behind Pinterest) harmless in any lawsuit arising out of anything that you pin to the site. Furthermore, you agree to pay their legal fees and damages if a copyright holder should be successful in their suit.
Most interesting to me was that Kristen also likens Pinterest to the original bad boy of online sharing, Napster. And she’s not wrong to do so. Like Napster, Pinterest allowed anyone to share intellectual with anyone else, and ultimately put their own users at risk. Remember the years following Napster’s demise? It wasn’t just the file sharing service that found themselves in court. Average, everyday users of the service, from adults to 12-year-old girls, were subject to lawsuits arising out of file sharing claims.
Are Pinterest users unknowingly putting themselves at risk of being dragged into court for illegal file sharing? Possibly. It does seem a bit less likely that big lawsuits like the ones from the Napster and Limewire court cases will be the result of Pinterest usage. Unlike those cases, there is no billion-dollar recording industry to fund the cases. Claims of Pinterest misuse would come from individual photographers and their individual lawyers, resulting in much smaller cases and settlements. However the possibility of seeing Pinterest users brought to court is entirely real. I expect that we will hear about some such case in the very near future.
I happen to like Pinterest and use it daily. Used responsibly, it can be a fun and helpful service for finding things that you ordinarily might not come across in your daily web travels. Unfortunately, most users are probably unaware that they are possibly misusing the service in a way that could actually land them in front of a judge. This could be the beginning of a change in mindset on the web in which more people become aware of intellectual property rights and what is and is not considered a fair use of someone else’s photos. Much like the Napster days, many people might have no clue that what they are doing is potentially illegal and could be costly.
Did you know: Unless specifically stated in a contract, the agency, studio, or designer you hire holds the copyright to the work they completed. 
That’s right. Under the letter of the law, the person or company who created the work has the rights to it, and are under no obligation to turn over source files to the client. But just because the law allows it, that doesn’t make it right.
To be fair, the legalities of the matter do make sense. In most situations and business transactions, the client/consumer is buying the end product, and not the means with which the product was produced.
The difference between most situations and the typical scenario of a design studio, however, is that giving away the means with which a design was created isn’t really giving away much. We’re talking about some files, usually the sort that require specific software to use, and a certain level of expertise to manipulate. The real value of what we do in a studio is in the idea and the execution, not in any single InDesign file or Photoshop composition.
When a client asks for source files to a project, in most cases I see no reason not to hand them over. If the client paid for the work, as far as I am concerned, they own it and the source files. If a client is asking for source files so that they can take their business somewhere else, I won’t hesitate to hand them over, along with my apologies for not being able to fulfill their design requirements.
Ember Studio is not in the business of nickel-and-diming our clients for every last cent we can get. For some people, that’s the standing policy. As I recently read on a freelance design website, one designer’s suggestion is to “get from every customer as much money as you can,” even when it comes to releasing source files.
It is rare that a request for files ever comes in. It has been over a year and a half since it last happened. But it will likely happen again, and when it does, my clients can rest assured that they will always have access to their files without having to pay some ridiculous transfer fee.
