Social media sites have been a boon for brand marketers over the past several years, and one of the latest big trends in social media – Pinterest.com – has generated buzz from a growing number of marketers as well as consumers. Pinterest users can “pin” images, including those from other websites, to the user’s “pinboard”. Users can also post a statement with each picture. Pinned images can be viewed and “re-pinned” by other Pinterest users, and images originating from other websites are hyperlinked to their original sources, which can help marketers drive traffic to their sites. For those who want to prevent their images from being pinned by third parties, Pinterest offers a “nopin” code allowing websites to block users from pinning a website’s images.
Using Pinterest to promote a brand, however, may raise potential legal issues. The risk of IP problems are top of mind with the potential for a copyright infringement challenge or perhaps right of publicity issues. Businesses could be held liable for pinning images to which they do not have rights. Further, a business could run into trouble if it conducts a marketing campaign encouraging users to post content on Pinterest; for example, a prize promotion in which consumers must post pictures as part of the entry process. A campaign that leads users to pin images to which others have copyrights could generate legal problems and damage the marketer’s standing among consumers.
Can pinning be false advertising too? Can marketers be held responsible for claims expressly or impliedly made through photos and/or captions posted on the marketers’ pinboards? The NAD recently issued the first decision in this area, finding that consumer weight loss stories posted by Nutrisystem, Inc. on one of its pinboards were consumer testimonials requiring disclosure of certain information to avoid misleading consumers. The pinboard, entitled “Real Customers. Real Success”, featured photographs of Nutrisystem customers with each customer’s name, total weight loss, and a link to the Nutrisystem website appearing below each photo. The NAD determined that the “pins” touted weight loss results that were atypical for Nutrisystem customers, and thus should be qualified with a disclosure of the results consumers can expect to achieve using Nutrisystem’s weight loss program, in accordance with Federal Trade Commission guidelines for consumer testimonials. Nutrisystem informed the NAD that the typical results disclosures were inadvertently omitted from the pinboard, the pins had appeared on Pinterest for less than two months, and the typicality disclosures were added immediately upon receipt of the NAD’s letter inquiring into the weight loss “pins.” The disclosure that Nutrisystem posted reads, “Results not typical. On Nutrisystem®, you can expect to lose at least 1-2 lbs. per week. Individuals are remunerated. Weight lost on prior Nutrisystem® program.” As the Pinterest craze continues to grow, we expect the legal landscape will continue to evolve. Stay pinned to this space and we will keep you in the loop on related developments.