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IP/Entertainment Case Law Updates

Davis v. Pinterest

District court holds Pinterest is protected by Digital Millennium Copyright Act’s safe harbor for allegedly displaying images of artist’s works next to advertisements on Pinterest users’ accounts, and grants summary judgment dismissing artist’s infringement claim.

Defendant Pinterest operates an online image-sharing service that allows users to upload photographs and videos onto virtual “Pinterest boards.” The individual uploads, referred to as “pins,” are stored on Pinterest’s servers but are not displayed in their original format on the website. Instead, Pinterest automatically creates copies of the original pins (referred to as “variants”) and optimizes them for display on its site. Users can access pins in a number of ways, including by using the site’s search function, through email and mobile notifications, and on their “personal home feeds” and “related pin feeds,” each of which uses machine-learning algorithms to curate content based on users’ preferences and activity. Pinterest does not charge consumers to use its service. Rather, like many other social media platforms, it generates revenue through third-party advertising. Because the amount of revenue generated from an advertisement can depend on how many users interact with it, Pinterest uses a separate algorithm to aim relevant “promoted pins” (i.e., advertisements) to each individual user.

Artist and professional photographer Harold Davis brought suit against Pinterest for copyright infringement of 51 of his copyrighted photos, which on summary judgment was subsequently whittled down to 35 works. Plaintiff narrowly defined the scope of the alleged infringing activity to focus only on Pinterest’s creation of variants of images of his works, its alleged embedding of data in those variants for advertising purposes, and its use of algorithms for purposes of selecting and displaying those images in close proximity to advertisements. He did not take issue with individual users uploading images of his works onto their Pinterest boards, nor did he challenge Pinterest’s use of variants and algorithms for purposes of enhancing users’ access to his works. In other words, plaintiff wanted Pinterest to continue displaying images of his works on its website but refrain from profiting in any way from the display of those images.

In clarifying the scope of the allegedly infringing activity at issue, the court found no evidence in the record to support plaintiff’s theory that Pinterest embeds its variants with data for use by its advertising algorithms. Rather, the algorithms interpret signals derived directly from the images and other user-provided information such as image titles and descriptions. Thus, the court held that the alleged infringing activity was limited to Pinterest’s alleged use of algorithms to display images of plaintiff’s works in proximity to related advertisements.

In response to these allegations, Pinterest asserted that its actions were protected by the safe harbor provision of the Digital Millennium Copyright Act (DMCA). The safe harbor shields online service providers from liability for “infringement of copyright by reason of the storage at the direction of a user” where the service provider does not “receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity.” Pinterest argued that it fell within the scope of the safe harbor because (1) the allegedly infringing activity was “by reason of ... storage at the direction of a user”; (2) it did not have the ability to control such activity; and (3) it did not receive a financial benefit “directly attributable” to the allegedly infringing activity.

On the first element, plaintiff argued that even though it was the Pinterest users who uploaded images of his works to the site, the use of those images in conjunction with Pinterest’s algorithms went beyond mere “storage.” The court held, however, that a service provider may design automated processes that optimize and enhance users’ accessibility to uploaded content without losing protection under the safe harbor. The court also rejected plaintiff’s theory that tracking user activity through algorithms or displaying advertisements near copyrighted work constitutes copyright infringement. Ultimately, the court found that the first element was satisfied because the act of facilitating users’ access to images of plaintiff’s work (via fully automated algorithms) did not negate the fact that the images were uploaded by the users.

Next, the court analyzed whether Pinterest had the “right and ability to control” the infringing activity. As the court noted, under Ninth Circuit precedent, the requisite element of control under the DMCA safe harbor means “something more than merely having the general ability to locate infringing material and terminate users’ access.” Rather, the service provider must also exert “substantial influence on the activities of users.” Here, the court found that Pinterest did not direct users to upload any specific content, and therefore Pinterest satisfied this element of the safe harbor.

Finally, the court found no support in the record for Pinterest’s alleged receipt of revenue from advertisements that appeared on the same feeds as images of plaintiff’s works. Instead of providing evidence of a direct financial benefit—which plaintiff claimed was difficult to acquire in discovery—plaintiff pointed to Pinterest’s overall business model, which relies on advertising displayed next to user’s pins. As the court emphasized, however, the DMCA requires the alleged financial benefit to be “directly attributable” to the specific infringing material at issue. Because Pinterest generally does not target advertisements to appear next to any specific pin, and because plaintiff failed to adduce any evidence of revenue derived from advertisements appearing next to pins of his works, the court ruled that Pinterest satisfied this third element of the safe harbor. Accordingly, the court granted Pinterest’s motion for summary judgment, dismissing plaintiff’s claims.

Summary prepared by Frank D’Angelo and Marwa Abdelaziz

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